In re Estate of Kendrick
| Decision Date | 24 June 1932 |
| Docket Number | 41308 |
| Citation | 243 N.W. 168,214 Iowa 873 |
| Parties | IN RE ESTATE OF ALFRED S. KENDRICK. ARTHUR STOOKESBERRY, Administrator, Appellee, v. W. P. CALDWELL, Special Administrator, et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Davis District Court.--C. F. WENNERSTRUM, Judge.
This action originated in objections filed by the special administrator of an estate to the final report of a former special administrator of said estate. The surety on the bond of the former special administrator filed a resistance to said objections. Thereupon the present special administrator filed a motion for judgment against the surety on the former special administrator's bond. Said surety filed a resistance to said motion and a reply was filed by the special administrator to said resistance. The cause was heard in probate and tried without the intervention of a jury and the trial judge entered judgment against the former special administrator and the surety on the bond in the sum of $ 11737.52. Said special administrator and the surety on his bond appeal.
Affirmed.
Stipp Perry, Bannister & Starzinger, Donald D. Holdoegel, and H. C. & H. C. Taylor, for appellants.
Chester W. Whitmore and Buell McCash, for appellee.
One Kendrick, the decedent whose estate is involved in this litigation, was a resident of Davis County, Iowa. He never married, and during the course of his life accumulated a considerable amount of property. In January, 1922, at a time when he was past 69 years of age, Kendrick made application to the court for the appointment of a guardian of his property and the appellant Caldwell was appointed as such guardian and gave bond as required by statute. Caldwell entered upon his duties as guardian and shortly thereafter collected in cash an amount in excess of $ 11,000. This money was deposited by the guardian on open account in the Bank of Drakesville. This bank was a private institution owned by three partners and had a capital of $ 6,000. Caldwell, the guardian, owned a one-third interest in said bank, and the other two-thirds interest was owned by H. C. Taylor and Heinrich Taylor. The situation regarding said deposit continued for a number of years.
In time Kendrick was sent to a state hospital for the insane and died there on February 13, 1930. He was survived by a brother, a sister, and a number of nieces and nephews. Shortly after the death of Kendrick, to wit, on February 18, 1930, the appellant Caldwell, who had been guardian of Kendrick applied to the court for his appointment as special administrator of Kendrick's estate, and he was so appointed and qualified as such special administrator, and gave his special administrator's bond in the sum of $ 35,000, signed by the appellant Fidelity and Deposit Company of Maryland as surety. This bond was duly approved. Thereafter, in April 1930, Caldwell filed his final report as guardian of Kendrick, showing therein that he had in his hands as said guardian on deposit in the said Bank of Drakesville the sum of $ 11636.44. At said time Caldwell, as special administrator, executed a receipt to himself as guardian for the said sum of money. Caldwell as special administrator included said sum of $ 11636.44 in his inventory of the assets of the estate of said decedent which he filed as special administrator, as being in said Bank of Drakesville. Thereafter, to wit, on April 24, 1930, an order was entered in said court directing that all funds in the hands of the special administrator in said estate should be deposited in the State Bank of Davis County, Iowa. This order was not complied with by the special administrator Caldwell, nor was there any attempt on his part so to do.
On July 19, 1930, said Bank of Drakesville made an assignment for the benefit of creditors and an assignee was duly appointed. In September, 1930, a sister of the decedent filed charges against Caldwell as special administrator, and asked his removal as such, and upon a hearing it was ordered that he be removed. Caldwell, as special administrator, filed his final report in said matter. At or about said time, the appellee Stookesberry, having been appointed special administrator of said estate, filed objections to the said final report of Caldwell as special administrator, and a motion was filed for judgment against the appellant surety company on said bond for the amount due from Caldwell as special administrator of the estate of the decedent. Issues were joined and a trial had to the court, which resulted in a judgment against Caldwell and the appellant surety company on its bond for the amount ascertained to be due from said Caldwell to the estate of the decedent, being the balance of said deposit.
The ultimate question for determination in this case is whether or not the surety on the bond of Caldwell as special administrator can be held liable for the funds that originally belonged to the said Kendrick and that came into the hands of Caldwell as guardian and for which he receipted as special administrator and reported that he had on hand in the bank.
Caldwell joins in the appeal but he makes no serious contention that he is not liable for the Kendrick funds. It appears that he is insolvent and that he is quite indifferent to the entry of judgment against him.
The real fight is between the present special administrator and the surety company.
Of course, there can be no question in this case in regard to the liability of Caldwell as guardian of Kendrick. He received the funds in the first instance as guardian and deposited them in the bank while acting as guardian. But the question here is as to the liability of the surety on his bond as special administrator, not as guardian. It is the contention of the appellants that the funds in question never came into the hands of Caldwell as special administrator, and that Caldwell and the Bank of Drakesville in which the funds were deposited by Caldwell as guardian were both insolvent at the time Caldwell was appointed special administrator, and at all times thereafter. Notwithstanding the receipt given by Caldwell as special administrator, reciting that he had received said funds from himself as guardian of Kendrick, and notwithstanding the inventory and report which he made as special administrator, reciting the receipt of said funds and that he held the same as such special administrator, it is the contention of the appellants that Caldwell did not in fact receive said funds as special administrator and that the surety on the special administrator's bond can not be held liable.
A great amount of evidence was introduced in the record with regard to the condition of said bank at the time of the appointment of Caldwell as special administrator, and thereafter until it was closed and an assignee appointed therefor. After Kendrick's death and the appointment of Caldwell as special administrator, there was practically no change in the account representing the funds of said estate in the Bank of Drakesville except the premium for the bond of the surety company was charged thereto. Caldwell was not only a part owner, but he was the cashier and managing officer of the bank, and was fully advised at all times of the condition of said account and also of the condition of said bank. Not only this, but the attorney-in-fact who executed the surety bond was also fully advised of the situation at the time he executed said bond. With full knowledge of the exact situation Caldwell assumed the duties of special administrator, receipted for the funds in the bank as having been paid to him in cash, reported to the court that he had received said funds and held them...
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