In re Hoenig's Estate
| Decision Date | 17 June 1941 |
| Docket Number | 45522. |
| Citation | 298 N.W. 887,230 Iowa 718 |
| Parties | In re HOENIG'S ESTATE. v. HOENIG. HEMMY |
| Court | Iowa Supreme Court |
Appeal from District Court, Lee County; James S. Burrows, Judge.
Action on a claim in probate for the failure to pay a legacy to claimant's intestate. On a trial to the court, the claim was allowed in full and judgment entered March 6, 1940. Defendant's motions, for new trial, and in arrest of judgment, were overruled on April 9, 1940, and defendant perfected his appeal from the latter ruling on August 7 1940.
Judgment is affirmed.
Herminghausen & Herminghausen, of Fort Madison, and E. W McManus, of Keokuk, for appellant.
Hollingsworth & Hollingsworth and John E. Newkirk, all of Keokuk, for appellee.
Plaintiff's intestate, Dorothy Robinson, was the daughter of a deceased child of J. B. Hoenig. The opinion and findings of the able trial court is a fair and concise statement of the facts, and is fully supported by the record. We set it out:
" The evidence in this case shows that J. B. Hoenig died on January 19, 1929, leaving a will containing the following items:
‘ 4. I give and bequeath to my two grandchildren, Nellie Robinson and Dorothy Robinson, children of my daughter Louise Robinson Hurley, the sum of Five Hundred ($500.00) Dollars, to be divided equally between them and I further direct that my brother, William Hoenig, act as Guardian of their property until such time as they shall reach lawful age.
6. After the payments of the bequests of Five Hundred ($500.00) Dollars to my daughter, Catherine Hoenig Millmeier and my grandchildren, Nellie Robinson and Dorothy Robinson, I give and bequeath all of the remainder of my estate to my four children Catherine Hoenig Millmeier, John Martin Hoenig, Henry W. Hoenig, Bernard W. Hoenig and my grandchildren, Nellie Robinson and Dorothy Robinson, said remainder to be divided into five equal shares, my four children each to receive one share and my grandchildren to receive one share to be divided equally between them.'
The will of J. B. Hoenig was never probated, but six weeks after the death of J. B. Hoenig, William Hoenig, who was named in said will as executor, met with the adult beneficiaries under the will of J. B. Hoenig and it was agreed that the will would not be probated but the terms thereof would be carried out as directed in said will, and that William Hoenig would take charge of the assets of the estate of J. B. Hoenig and distribute them as per the terms of the will, also that William Hoenig would take care of any money or property due under said will to the plaintiff, a minor. At said meeting the said William Hoenig made a computation of the assets of the estate of J. B. Hoenig, said computation in William Hoenig's handwriting being introduced in evidence as Plaintiff's Exhibit L. By said computation the assets of the estate amounted to $5,943.73, and there was deducted therefrom the sum of $1,089.24, the indebtedness owed by said estate, and also $1,000.00, the specific bequests provided for in paragraphs 3 and 4 of the will, leaving the sum of $3,854.49. This latter sum was divided into five equal parts by William Hoenig as provided for in paragraph 6 of the will of J. B. Hoenig, giving to each residuary legatee the sum of $770.89, as shown by the evidence in this case and by Exhibit F., which is in the handwriting of William Hoenig, deceased.
William Hoenig died October 29, 1937, and Steve Hoenig was appointed administrator of his estate the 4th day of December, 1937. The estate of William Hoenig has never been finally settled and is still open.
Dorothy Robinson died January 10, 1938 and was eighteen years of age at the time of her death. D. J. Hemmy was appointed administrator of her estate on May 16, 1938. On October 25, 1938, D. J. Hemmy, as administrator of the estate of Dorothy Robinson, filed a claim against the estate of William Hoenig, deceased claiming of said estate the sum of $1,096.62, which included interest for the legacy of Dorothy Robinson under the will of J. B. Hoenig. This claim was neither allowed nor paid by Steve Hoenig, the administrator of the estate of William Hoenig, deceased, and the said matter was brought on for trial on February 14, 1940. Dorothy Robinson died before reaching her majority."
As noted by the trial court, William Hoenig took possession of the assets of his brother, J. B. Hoenig, and made the distribution stated. He never paid Dorothy any part of the bequest of her grandfather. There is evidence that he paid her sister, Nellie, $75 when she reached her majority. He never denied the trust he assumed with respect to the legacy to Dorothy. In response to a letter from her inquiring about it, he wrote her, on January 28, 1937, a letter rather deprecating the extent of her grandfather's estate. In it he stated
Appellant assigns three errors on which he asks reversal.
One of them is that the court erred in overruling grounds 5 and 6 of his motion for new trial alleging that the evidence failed to establish that William Hoenig came into possession of the assets of the estate of J. B. Hoenig, from which claimant would be entitled to a share. Appellant, in argument, urges that William Hoenig in making distribution of the assets of his deceased brother as provided in his will " was deceiving himself and advancing funds from his own pocket that he never recovered." This appeal is not triable anew in this court. The findings of fact by the trial court are conclusive upon us if they have proper support in the record. We find that they do have such support. There is no merit in this assignment.
Appellant assigns error in the overruling of his motion for new trial and in arrest of judgment on the ground that the claim was barred by the probate statute of limitations.
The appellant was appointed administrator December 4, 1937. On October 25, 1938, appellee filed his sworn claim against that estate Notice of the filing of this claim was served on the appellant on December 2, 1938, and that it would come on for hearing on December 15, 1938. This notice stated: Attached to the notice was a sworn statement of the claim reciting that it was a legacy for his intestate under the will of J. B. Hoenig, giving the amount thereof as stated in the claim filed on October 25, 1938. This notice was filed December 3, 1938. On December 14, 1938, appellant filed demurrer to the claim as not being clearly stated; based on a will not set out; not connected with the estate of William Hoenig; barred by the general statute of limitations; and, that it was not filed or notice thereof given as required by Code, Section 11972.
On December 15, 1938, appellee filed petition for the allowance of his claim, reciting his appointment, the existence of claims against the estate, and the lack of funds to pay them, and also:
" He further represents that John B. Hoenig died in the year 1928, leaving a will, a true copy of which is hereto attached, marked Exhibit A, and made a part hereof by reference. That under the 4th paragraph thereof, Dorothy Robinson became entitled to the sum of $500.00. That under the 6th residuary paragraph thereof, Dorothy Robinson became entitled to the sum of $500.00. That under the 6th residuary paragraph thereof, Dorothy Robinson became entitled to the further sum of $385.44. Due to the fact that after the payment of all the bequests, there remained more than $1,500.00, of which the share of Dorothy Robinson was approximately $385.44.
He further represents that said will was never admitted to probate, but that during the month of March, 1928, while Dorothy Robinson was a minor of tender years, an agreement was made by the adult beneficiaries of the will that the provisions of said will be carried out, but that it was not probated.
For cause of action against Steve Hoenig, as administrator of the estate of William Hoenig, deceased, D. J. Hemmy represents that said amounts were received by William Hoenig in March, 1928, and never turned over and paid to Dorothy Robinson, who died January 10th, 1938, before attaining her 21st birthday. That William Hoenig received and appropriated and converted to his own use the sum of $600.00, the rightful property of Dorothy Robinson, during the month of March, 1928, and although she made frequent demands upon him for the payment of said amount, he always refused to pay the same. That there is due the estate of Dorothy Robinson, the sum of $600.00 and $496.62 interest, or a total of $1096.62, with interest thereon at 5% from October 25th, 1938. That demand has been made upon Steve Hoenig as administrator of the estate of William Hoenig, deceased, for the payment of amounts due the estate of Dorothy Robinson, deceased, but he has failed and refused to pay the same or any part thereof.
That on or about December 2nd, 1938, this administrator caused to be...
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