In re Petranek's Estate

• Decision Date: 07 February 1890
• Citation: 44 N.W. 685,79 Iowa 410
• Parties: IN RE PETRANEK'S ESTATE.
• Court: Iowa Supreme Court

79 Iowa 410

44 N.W. 685

IN RE PETRANEK'S ESTATE.

Supreme Court of Iowa.

Feb. 7, 1890.

Appeal from district court, Tama county; L. G. KINNE, Judge.

Petition in probate to compel payment of a legacy. In the last will and testament of Albert Petranek, deceased, it is provided among other things as follows: “I hereby give, devise, and bequeath to Franz Sevcik and Fred. Huble in trust for the benefit of the Catholic Church on my farm in Tama county, Iowa, the sum of eight hundred dollars, and hereby direct that they or their successors shall invest said money safely for the benefit of said church, and that services be held in said church for my soul yearly.” Vencel Ulch, Joseph Sebesta, and Michael Silhonek, members and trustees of said church, filed their petition in the district court of Tama county against said Franz Sevcik and Fred. Huble, alleging that they declined to accept said money, and execute said trust, but desire to be excused therefrom, and were willing and anxious that the court should appoint the petitioners in their stead, to carry out said provisions of the will. Sevcik and Huble made default and, on October 4, 1887, a decree was entered “that the issues are found for the plaintiffs, and decree as prayed for in said petition. Vencel Ulch, Joseph Sebesta, and Michael Silhonek are appointed trustees of the fund, and Franz Sevcik and Fred. Huble removed thereby.” On October 14, 1887, said Ulch, Sebesta, and Silhonek filed their petition herein, asking an order upon the executor to pay them said legacy. J. J. Mosnet, executor, answers, denying that the district court had jurisdiction to remove said Sevcik and Huble, or to appoint these petitioners, and that, upon the petition of the heirs of the deceased to set aside said bequest as void, it was decided by the supreme court, (39 N. W. Rep. 685,) that said Sevcik and Huble were legatees, and that the legal title to said money was in them. The matter was submitted to the court, and an order made upon the executor to pay over the legacy, $800, to the petitioners, within 30 days, and that the executor pay the costs, to which executor excepts, and from which order he appeals.W. H. Stivers and J. J. Masnat, for appellant.

Caldwell & Drahas and Struble & Stiger, for appellees.

GIVEN, J.

1. The only question presented in argument is whether the district court had authority to remove Huble and Sevcik, and appoint the petitioners. Appellant's contention is that Huble and Sevcik are not trustees, but legatees, and therefore the court had no authority to remove them, nor to designate others to occupy their place, under the will. In Perry v. Drury, 56 Iowa, 60, 8 N. W. Rep. 745, the will under notice contained bequests to the “trustees of funds and donations for the diocese of Iowa,” and to the “bishop of the diocese of Iowa,” in which it is expressedas being “in trust” for purposes named. In the bequest to the board of missions it is directed that “the said sum shall be invested by the board, and the interest accruing therefrom each year shall be applied by the said board in the support of missions in the diocese of Iowa.” These trustees, board, and bishop petitioned the court for an order on the executors to pay the legacies. The prayer of the petition was denied, and an order entered requiring the plaintiffs to execute bonds as prescribed by Code, § 2350, which provides that “trustees...