In re Rinard's Estate

• Decision Date: 19 October 1937
• Docket Number: 43947.
• Citation: 275 N.W. 485,224 Iowa 100
• Parties: In re RINARD'S ESTATE.
• Court: Iowa Supreme Court

275 N.W. 485

224 Iowa 100

In re RINARD'S ESTATE.

No. 43947.

Supreme Court of Iowa.

October 19, 1937

Appeal from District Court, Polk County; O. S. Franklin, Judge.

The executrix of the estate of Ellis Rinard appealed from an order of the probate court overruling her motion to strike certain portions of the objections of the administrator with the will annexed of said estate to the reports and inventories filed in said estate by the executrix on the ground of misjoinder of causes of action and parties.

Affirmed.

McMartin, Herrick & Langdon, of Des Moines, for appellant.

Gillespie & Moody and John E. Perry, all of Des Moines, for appellee.

STIGER, Justice.

Appellee filed a brief and argument in reply to appellant's reply brief and argument. There being no authority for such a pleading, appellant's motion to strike appellee's reply brief and argument is sustained. Appellant's motion to strike appellee's denial of and amendment to appellant's abstract of record is overruled.

Elizabeth Rinard, appellant, was appointed executrix of the estate of her husband, Ellis Rinard, in March, 1932. On June 26, 1936, the referee in probate filed his report of an examination of Elizabeth Rinard in proceedings for discovery of assets belonging to the estate of Ellis Rinard. In July, 1936, Elizabeth Rinard resigned as executrix, and Lee Bartholomew was appointed administrator with the will annexed. In September, 1936, he filed objections to the inventories and reports of the executrix. The executrix, appellant, filed a motion to strike a part of the objections. This motion was overruled, and the executrix appealed.

For convenience, we have divided that part of the objections at which the motion to strike was directed into divisions which are as follows:

Division I.

" That said Executrix in addition to the property of decedent listed by her in these Estate proceedings and as charged to her by the Referee in his Report, has failed to account for the following property of decedent which came into her hands at the time of his death:

$5,000.00 Western Utilities Corporation Notes,

$6,000.00 Mountain State Power Notes,

$5,000.00 Wisconsin Valley Electric Notes.

This Administrator further alleges in connection therewith that the $5,000.00 Wisconsin Valley Electric notes were paid off and redeemed by said company shortly after the death of the decedent and there came into the hands of said Executrix in connection therewith $5,112.42 for which this Executrix has failed to account herein.

That said Executrix after the death of the decedent sold his said $5,000.00 of Western Utilities Corporation notes and $6,000.00 of Mountain State Power notes to the Henkle Van Ginkel Company of Des Moines, Iowa, and received therefor $4,682.67; that said Executrix with said funds and additional funds of this Estate purchased $5,000.00 of stock in the Paramount Products Company of Des Moines, Iowa; that all of said transactions were without approval of this court; that said Executrix in connection with the investment of said funds has received from the Paramount Products Company the sum of $19,675.00, with which amount she should be charged."

Division II.

" That said Executrix with the funds of this Estate as hereinbefore set forth, purchased the following described pieces of real estate, to-wit: [Real estate described]; that in truth and in fact said pieces of real estate actually belong to this Estate.

That said Executrix should be required to account herein in accordance with the report of Referee heretofore filed herein and in accordance with these objections."

Division III.

" That subject to the judgment entry of this Court entered in connection with said Referee's Report, this Administrator alleges that said Executrix and Elizabeth Rinard are indebted to him in the sum of $61,983.51, which includes items charged to the Executrix in said Referee's Report in the sum of $33,649.96, the specifically denied items of disbursements hereinbefore set forth and the proceeds derived from the collection of the Wisconsin Valley Electric notes and funds received by the investment of the proceeds from the sale of the Mountain State Power notes and the Western Utilities Corporation notes and profits derived thereon."

Appellant moved to strike division I because of misjoinder of causes of actions and parties in that the administrator joined with his objections to the reports and inventories of the executrix a law action against Elizabeth Rinard individually to recover for an alleged conversion of property.

Appellant in her motion claims that the property described in the objections never constituted any part of the estate of Ellis Rinard and never came into her hands as executrix.

Appellant moved to strike division II on the ground of misjoinder of actions and parties, the motion stating that the administrator seeks to join with his proceeding in probate an action in equity against Elizabeth Rinard individually to impose a trust on real estate, and establish title thereto and a lien thereon. The motion also alleges a misjoinder of actions because a part of the real estate is situated in Jefferson county, Iowa, and an action for said property could not properly be joined with an action to establish title to land located in Polk county, Iowa, but must be prosecuted in a separate action in equity in Jefferson county, Iowa, by the administrator against Elizabeth Rinard individually, and not as executrix.

Appellant offered in evidence in support of her motion her affidavit, the material part of which is as follows:

" I, Elizabeth Rinard, being first duly sworn, do upon oath depose and say that the following described personal property, to-wit: $5,000.00 Western Utilities Corporation notes; $6,000.00 Mountain State Power Notes; and $5,000.00 Wisconsin Valley Electric notes; described on page three of the ‘ Objections to Inventory and Reports of Elizabeth Rinard, as Executrix of the Estate of Ellis Rinard, Deceased’, filed September 3, 1936, never constituted any part of the property of the estate of Ellis Rinard, deceased, and was never included in any inventory, report, or inheritance tax appraisement in said Estate, for the reason that said property and all of it belonged to me individually and personally, prior to the death of Ellis Rinard, deceased; that at and prior to the death of Ellis Rinard, all of said securities and property were in my own possession in my safety deposit box, and that I was the only person who had a key to or access to said safety deposit box; that Ellis Rinard never had the key to said safety deposit box and never had access to said safety deposit box, and did not claim that said securities or any of them belonged to him or were his property.

That I own the following described real estate: [here follows description of the real estate]; that I purchased all of said real estate after the death of Ellis Rinard; that I purchased the same and all of the same with my own money; that no funds of the Estate of Ellis Rinard were ever used in the purchase of said real estate or any part of it; that said real estate was never inventoried, appraised by inheritance tax appraisers, or in any manner reported in the Estate of Ellis Rinard, deceased, because it was not the property of said Estate, but was my own individual property, acquired with my own money long after the death of Ellis Rinard, deceased."

Appellee filed a resistance to the motion to strike stating that the motion should be overruled for the following reasons:

(1) " That said Elizabeth Rinard by having herself appointed as Executrix of the Estate of Ellis Rinard, deceased, qualified as such and assumed the duties and obligations to account for the assets of said decedent, thereby became liable to account to this court for the assets of said decedent and this Estate, and thereby waived trial by jury in connection with such accounting; that such accounting is required irrespective of whether or not said Executrix inventories the assets of said Estate; that said Executrix has failed to inventory a good many items of the assets of said Estate and same have not been appraised, including the items and assets described in the objections of this Administrator to the Reports of said Executrix.

(2) That the said Motion to Strike is not filed in the time as prescribed by the laws of the State of Iowa and the rules of this Court, made and entered in regard to such Motions.

(3) That the Objections to the Inventories and Reports of Elizabeth Rinard as Executrix of the Estate of Ellis Rinard, deceased, and filed herein by said Administrator state that the assets referred to in said Motion to strike are assets of this Estate and should be accounted for by said Executrix of this Estate and said Objections further allege...