In re Estate of Johnston
| Decision Date | 11 December 1924 |
| Docket Number | 36306 |
| Citation | 201 N.W. 72,198 Iowa 1372 |
| Parties | IN RE ESTATE OF WILL E. JOHNSTON. v. A. C. JOHNSTON, Administrator, et al., Appellees HARRIETT JOHNSTON, Appellant, |
| Court | Iowa Supreme Court |
Appeal from Ida District Court.--E. G. ALBERT, Judge.
OBJECTORS appeal from an order in probate in re the estate of Will E Johnston, deceased. The facts are stated in the opinion.--Modified and affirmed.
Modified and affirmed.
M. M White, Charles Hutchinson, and Arthur C. Pancoast, for appellant.
A. C Johnston and Campbell & Campbell, for appellees.
I.
Will E. Johnston, a member of the bar of Ida County, died testate, August 16, 1915, seized and possessed of property, real and personal, of the value of more than $ 350,000. He was survived by his father, two brothers, A. C. and Donald, and three sisters, Jessie and Mable Johnston, and a married sister, Mrs. Conn. By the terms of the will, the estate was to be held intact and managed by his executors during the lifetime of the father, who, at the time of the trial below, was over eighty years of age. The proceeds and income from the estate were to be used, first, to provide a suitable home and suitable living for the testator's father, and for the education of his sister Mable and his brother Donald. Frank B. Johnston and Jessie R. Johnston were named as executors. Frank B. Predeceased the testator; and, on or about November 1, 1915, A. C. Johnston was appointed administrator, with will annexed. Since his appointment, the estate has been managed by himself and Jessie, who qualified as executrix. A. C. Johnston and the testator were in partnership at Ida Grove, the law library and office furniture being owned by the latter, who was the senior member of the firm. Except the office library and furniture, which were devised to A. C. Johnston, the residue of the estate, upon the death of A. J. Johnston, the father, was devised to Jessie R. and Mable, Frank B., A. C., and Donald Johnston, share and share alike, with the exception that the appraised value of the library and office furniture was to be deducted from the share of A. C. Johnston. Frank B. Johnston was survived by a daughter, Harriett, who is entitled to the portion of the estate that would otherwise have gone to him.
This controversy arises on objections of Harriett Johnston to the reports of appellees and to the management and conduct of the estate by them. The controversy on this appeal is limited to four general subjects. Retta Johnston, the mother of Harriett, resided in Omaha at the time of testator's death, where she was engaged in conducting a boarding house. The Johnston family feeling that Harriett should have better surroundings, A. C. Johnston induced them to move to Des Moines, under a written contract by which he agreed to furnish them a home free of rent, and to pay them $ 100 per month for its maintenance. About a year after this contract was entered into, Retta Johnston remarried, and removed to Omaha. After her marriage, she received $ 40 per month for the use and benefit of Harriett. The total sum paid by A. C. Johnston to Retta Johnston was $ 7,407.29. The contract referred to above was executed prior to, or about, the time A. C. Johnston was appointed administrator of the estate, and does not purport to have been executed in a representative capacity. He had, however, previously been appointed guardian of Harriett. Prior to his death, the testator acted in that capacity. The sums advanced were charged by the administrator and executrix against the share of Harriett in the estate. The objection they urge to this charge presents the first question for consideration.
It is their contention that A. C. Johnston agreed to make the monthly payments out of his own funds, and not to charge the same against Harriett's interest in the estate; and that, whether this is so or not, he had no authority to make the contract in his capacity of guardian or administrator. The court below found that all sums advanced prior to the remarriage and removal of Retta from Des Moines to Omaha should not be charged against Harriett, but that all subsequent advancements were properly so charged; and they were approved. This order was based upon the finding on the facts that the contract was abandoned when the mother returned to Omaha. The question of abandonment was one of fact, and for the determination of the court. Its finding thereon has much the same weight as the verdict of a jury. Considering the original purpose of the contract, together with the circumstances shown, we see no reason to disturb the order of the court below at this point.
II. The total income from the estate from August 16, 1915, to September 30, 1921, was $ 54,477.96. By far the larger part of this income has been charged to the care, maintenance, and support of A. J. Johnston, the father. It appears that the home in which the testator resided was owned by him, and that his father, sisters (except Mrs. Conn), and Donald resided with him. The expenses of the home were paid by the testator. The testator delighted in travel, and, at different times visited the various countries of Europe, as well as made extensive tours of the Orient. On one of his trips to Europe, he took his aged father with him, paying all of the expenses thereof. Shortly prior to his death, he visited China and Japan, and, according to the testimony, expressed a desire that his father and sisters might sometime in the future accompany him on a second trip to Asia. Subsequent to his death, the father and daughters went to Asia, making the trip around the world. Since the death of testator, the family have resided...
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