In re Guardianship of Burgy

• Decision Date: 11 December 1934
• Docket Number: No. 42361.,42361.
• Citation: 257 N.W. 791
• Parties: In re GUARDIANSHIP OF BURGY et al.
• Court: Iowa Supreme Court

257 N.W. 791

In re GUARDIANSHIP OF BURGY et al.

No. 42361.

Supreme Court of Iowa.

Dec. 11, 1934.

Appeal from District Court, Iowa County; Jas. P. Gaffney, Judge.

“Not to be reported in State Reports.”

Appeal from an order and judgment in probate.

Modified and affirmed.

Swift, Swift & Elsenbast, of Marengo, and Fletcher, Swift & Fletcher, of Des Moines, for appellant guardian.

J. M. Dower, of Marengo, for appellee objector.

STEVENS, Justice.

The appellant, John G. Heitshusen, became guardian of the estate involved herein prior to July 31, 1928. The cause was tried upon objections to the guardian's report filed June 14, 1933. The record is in a state of more or less confusion, and it is difficult, if not impossible, to make a clear and definite statement of the matters in controversy.

The guardian, on proper application and order of the probate court, invested $3,068 in bonds known as the Zeigler Canning Company bonds. The controversy centers largely upon this item. These bonds were secured by a mortgage on real estate located in Muscatine county. The item of $68 included therein, as we understand the record, represents interest then due. The investment ultimately resulted in a loss to the estate. Some changes and adjustments were made in the investment which resulted in a credit of $900, leaving, as we understand the record, a balance due and unpaid on the investment of $2,100. No statement of the details is necessary. This balance, if a settlement was consummated upon the basis of the guardian's recommendations, was secured by collateral of more or less doubtful value. Included in the collateral was a $1,000 drainage bond of the village of Weller Creek drainage district and a bond of $500 of the village of Robbins. The probable value of this collateral is not disclosed by the record. The court found that the investments in the Zeigler County Canning Company bonds and in the Weller Creek drainage and the village of Robbins improvement bonds were improvident, the result of a lack of reasonable diligence on the part of the guardian, and that the authorization and approval of the court thereafter was obtained by misrepresentation and fraud.

Objections were also interposed to an allowance of $800 previously made to the guardian for services. The court found that, because of the improvident and negligent management of the estate, the guardian should be charged with $200 of this amount. The record bearing upon the issue of fraud and misrepresentation by the guardian in the procurement of the court's order and authorization to make the original $3,068 investment is meager. It may well be doubted whether the guardian was guilty of any willful misconduct, but the court might have found that the investments complained of, commencing with the purchase of the Zeigler County Canning Company bonds, were conducted without due and proper investigation and regard by the guardian of the best interests of the estate. The application upon which the original authority to make the investment was obtained rather strongly recommended the investment. The finding of the court at this point must be treated, in effect, as the finding of a jury. We deem it unnecessary to further review the record, but we do not feel warranted in holdingthat the record is devoid of testimony tending to support the finding of the court.

[1] The actual investment of the funds of the estate...