In re Pitt's Estate

• Decision Date: 12 December 1911
• Citation: 133 N.W. 660,153 Iowa 269
• Parties: IN RE ESTATE OF JOHN F. PITT, Deceased,
• Court: Iowa Supreme Court

133 N.W. 660

153 Iowa 269

IN RE ESTATE OF JOHN F. PITT, Deceased,

Supreme Court of Iowa, Des Moines

December 12, 1911

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

JOHN F PITT, a resident of Polk county, died intestate February 4 1910, leaving a widow and two daughters, one a resident of Des Moines and the other of Washington, D. C. The property left by him consisted of a house and lot situated in Des Moines occupied by deceased as a homestead and thereafter by the widow and unmarried sister, of the value of $ 3,500, a half interest in certain real estate in the state of Idaho valued at $ 4,000, a leasehold interest in a lot and part of another located in Des Moines of no value above the amount of rent reserved, and $ 5,000 in personal property. The widow presented a petition alleging the property of deceased and its value as above recited, and prayed that she be appointed administratrix of the estate, accompanied by a sufficient bond, to the clerk of the district court of Polk county, and at the same time tendered $ 5 as the fees to which the officer was entitled for services to be rendered in the settlement of the estate. The clerk declined to receive the same or to file the petition or approve the bond or issue letters of administration unless the maximum fee of $ 10 was first paid. Such sum was subsequently paid under protest, and a motion in the district court to retax was overruled. Upon certificate of the presiding judge that an appeal should be allowed, the administratrix has brought the case to this court.

Reversed.

Dale & Harvison, for appellant.

W. S Ayres, for appellee.

OPINION

LADD, J.

The sole issue is whether the clerk of the district court was authorized by section 296 of the Code Supplement to exact the payment of a fee of $ 10 for his official services in the estate of John F. Pitt, deceased. He was "entitled to charge and collect . . . for all services performed in the settlement of the estate of any decedent, except where actions are brought by the administrator or against him, or as otherwise may be provided herein, where the value of the estate does not exceed three thousand dollars, three dollars; where such value is between three and five thousand dollars, five dollars; where such value is between five and seven thousand dollars, eight dollars; where the value exceeds seven thousand dollars, ten dollars."

Deceased left personal property of the estimated value of $ 5,000 which was amply sufficient to satisfy all debts, a homestead valued at $ 3,500, a leasehold interest of no value, and an half interest in certain land situated in the state of Idaho of the value of $ 4,000. If, then, the value of the homestead or the land in the state of Idaho be included in estimating the value of the state, the clerk was right in fixing his fees at $ 10; but, if these are to be excluded, the tender of $ 5 made by the administratrix was sufficient. The propriety of demanding the fees in advance is not questioned by appellant and for this reason is not considered. It is apparent that no services by the clerk with reference to either tract of real estate were possible. The homestead either continued as such in the occupancy of the widow, or descended directly to the heirs of deceased, and in either event was exempt from any indebtedness contracted since it was acquired. Section 2985, Code. As the personal property was ample for the discharge of the debts of the deceased, neither the homestead, even though acquired subsequent to the creation of these, nor the land in Idaho, even though auxiliary proceedings might have been resorted to for the payment of the debts,...