In re Estate of Munger

• Decision Date: 15 January 1915
• Docket Number: 29845
• Parties: In the Matter of the Estate of TRAVERS D. MUNGER et al
• Court: Iowa Supreme Court

150 N.W. 447

168 Iowa 372

In the Matter of the Estate of TRAVERS D. MUNGER et al

No. 29845

Supreme Court of Iowa, Des Moines

January 15, 1915

Appeal from Polk District Court.--HON. LAWRENCE DE GRAFF Judge.

THE administratrix of the estate of Travers D. Munger asked to be allowed certain attorney fees she had paid and that she be permitted to pay others and be directed to distribute the remaining funds of the estate. The guardian of deceased's minor children objected. On hearing, she was allowed the fees she had paid, denied permission to pay others, and ordered to distribute as prayed. Both guardian and administratrix appeal.--Modified and Affirmed.

Modified and Affirmed.

H. L Bump, for appellant.

Strock & Wallace, for appellee.

OPINION

LADD, J.

Travers D. Munger was killed in a collision on the Chicago, Rock Island and Pacific Railroad, September 10, 1912, leaving him surviving a widow, Ada K. Munger, the administratrix, and two minor children, by a former wife, Mary Munger, from whom he was divorced, August 23, 1912, the day of his second marriage, and who is guardian of the children. The administratrix entered into a contract with W. C. Strock "to take charge of the collection of the claim of first party against the Chicago, Rock Island & Pacific Railway Company or others, arising out of the injury and death of the decedent, Travers D. Munger, said second party to have the exclusive charge of the settlement of litigating of said claim.

"In consideration of the services rendered and to be rendered herein, the first party agrees to pay to the second party a sum equal to one-third (1/3) of the amount collected, in the event such collection is without suit commenced, and, in the event of suit commenced, a sum equal to one-half (1/2) of the amount collected.

"It is agreed by and between the parties hereto that all the necessary costs incident to the preparation and trial shall be first paid from the amount realized on said claim.

"Second party agrees for the above consideration to take charge of said claim and conduct same to determination in the Courts, if necessary."

This was duly signed by the parties and an ex parte order entered by the court being signed by a judge, directing the attorney to proceed to collect the damages by suit or otherwise according to the contract and approving the same. Suit was begun December 23, 1912, and on June 7, 1913, was settled by the payment of $ 199.65 funeral expenses including the undertaker's charge, and $ 1,875.35 as damages. Of this, the administratrix claims to have paid the attorney $ 937.68. and she prayed that such payment be approved and that she be directed to pay $ 57.50 for services of such attorney rendered in connection with the administration of the estate. The guardian resisted by asserting that the order of the court approving the contract, being ex parte, was not binding on the estate or those entitled thereto, that the amount agreed upon and alleged to have been paid was excessive, unreasonable and unconscionable, and objection was made to payment for services incident to the administration because of no showing of services having been rendered and for that such services were not in behalf of the administratrix as such. A demurrer on the ground that the facts alleged in the resistance were not sufficient to obviate the contract as approved by the court was overruled and, the cause coming on for trial, the administratrix waived offering any evidence in support of her application. The guardian adduced the evidence of three witnesses and the administratrix called three in rebuttal. The decree denied payment of $ 57.50 because of the services not being rendered for the administratrix as such and "ordered that as to the Contract of Employment by the Administratrix of W. C. Strock to prosecute the claim of the Estate against the Chicago, Rock Island & Pacific Railway, and the Order authorizing and approving the same, which was entered on the 19th day of October, 1912, remain as it is entered, and not be disturbed or modified. And Administratrix is allowed credits for fee paid to said W. C. Strock paid thereunder to wit: Nine Hundred Thirty-Seven and 50-100 Dollars ($ 937.50)."

I. In her resistance, the guardian asked that the order approving the contract "be set aside and cancelled and held for naught." Appellee seems to think this was essential to the consideration of the issue as to the reasonableness of the expenses incurred for services of counsel, and the language of the decree indicates that such may have been the view of the district court. The vice of such an order is that, without being effective other than as advisory to the administratrix individually, it may and often does serve the purpose of deceiving those entitled to an estate into believing that the compensation thereby approved has been adjudicated against them. The administratrix's contract employing Strock as attorney to prosecute the action, even though approved ex parte by the judge or court, was of no validity as against those entitled to the estate.

The powers, duties and obligations of the executor or administrator with respect to the estate are defined and limited by the will or statute. He has no implied powers beyond those necessary to effectuate the powers expressly conferred. In the absence of testamentary provisions to the contrary, he is entitled to the possession of all personal property of the estate in trust for the purpose of settling all contracts, claims and obligations of decedent. Without interest in the assets, he is without power of imposing a charge on them by any new and independent contract, unless expressly authorized by statute or will, even though it be for the benefit of the estate. Hayes v. Shirk, 78 N.E. 653; May v. May, 7 Fla. 207, 68 Am. D. 431; Pike v. Thomas, 62 Ark. 223, 54 Am. St. 292, 35 S.W. 212; Sumner v. Williams, 8 Mass. 162, 5 Am. D. 83; Davis v. French, 20 Me. 21, 37 Am. D. 36; Smith v. Brennan, 62 Mich. 349, 4 Am. St. 867, 28 N.W. 892; Fletcher v. American Trust and Banking Co., 111 Ga. 300, 78 Am. St. 164, 201, and notes in which cases are collected. And such is the rule with respect to the employment of an attorney in this state. Clark v. Sayre, 122 Iowa 591, 98 N.W. 484.

Of course, the executor or administrator may at his discretion contract with reference to necessary matters relating to the estate, but h...