In re Robinson's Estate

• Decision Date: 07 April 1942
• Docket Number: 45826.
• Parties: In re ROBINSON'S ESTATE. MEEKER v. MOORE et al.
• Court: Iowa Supreme Court

3 N.W.2d 158

231 Iowa 1099

In re ROBINSON'S ESTATE.

MEEKER v. MOORE et al.

No. 45826.

Supreme Court of Iowa

April 7, 1942

Henry Curvo, of Clear Lake, Uhlenhopp &amp Uhlenhopp, of Hampton, and Stipp, Perry, Bannister &amp Starzinger, of Des Moines for appellants.

C H. Van Law, of Marshalltown, for appellee.

GARFIELD Justice.

F. L. Meeker filed an application in the district court for allowance of compensation as attorney for the administrator with will annexed of Mary Alice Robinson, deceased. To this application the administrator and three legatees filed written resistance denying the application and alleging that appellant had already taken from the estate $1,034.65, which was $714.65 more than the maximum fee provided by law for an estate such as this with assets not exceeding $10,000. The administrator and legatees also filed a counterclaim in which, as amended they alleged that Perry A. Moore, administrator, lived about 100 miles from Marshall county where the estate was being administraed; that after his appointment as administrator, Moore employed the applicant as his attorney and had both an oral and written agreement with him, confirmed by order of court, that there was to be joint control of all estate funds, and that no checks were to be issued without the administrator's signature; that all reports were to be signed by the administrator, and that no moneys were to be paid out without the knowledge, consent and signature of the administrator; that disregarding this agreement and without the knowledge or consent of the administrator or other interested parties, said applicant wrote checks to himself which he cashed and made reports to the court and obtained ex parte orders of court allowing attorney fees to himself; that the sums so unlawfully paid to himself total $1,034.65.

It was further alleged in the counterclaim that the services performed by the applicant consisted of the ordinary services commonly performed by attorneys for an estate; that no extraordinary services were performed; that the total value of the estate did not exceed $10,000 and the maximum statutory attorney fee was therefore $320; that in procuring the exparte orders, the applicant perpetrated a fraud upon the court and upon the administrator and others interested in the estate. The prayer of the amended counterclaim was that the application for additional attorney fees be denied; that the ex parte orders allowing compensation be set aside; that upon full hearing the applicant be compelled to account for all sums in excess of the maximum statutory attorney fees for ordinary services, and that a personal judgment be rendered against applicant for such excess.

The applicant demurred to the amended counterclaim for the reasons: (1) That each item of fees had been allowed by order of court; and (2) that such orders constitute adjudications between the parties which have not been vacated nor set aside, nor reversed on appeal, and they are not subject to collateral attack. The trial court sustained the demurrer. Thereupon the administrator and legatees filed their written exceptions and unqualified election to stand upon their amended counterclaim and announced their refusal to plead further. They then appealed to this court.

I. Appellants, having excepted to the ruling and elected to stand on their pleadings, could appeal from the sustaining of the demurrer, without the entry of final judgment against them. Section 12823 (3), Code, 1939; Home Sav. Bank v. Kelley, 205 Iowa 514, 521, 218 N.W. 288; Devoe v. Dusey, 205 Iowa 1262, 217 N.W. 625; Bradley v. Miller, 100 Iowa 169, 173, 69 N.W. 426; Cowen v. Boone, 48 Iowa 350, 352. Appellee does not challenge this proposition. Where, however, there is neither election to stand nor the entry of final judgment, no appeal will lie from the ruling on a demurrer. See Jensen v. Nolte, 231 Iowa 1103, 3 N.W.2d 140.

II. Neither ground of the demurrer was good and the trial court should have overruled it. The statute provides that mistakes in settlements may be corrected in the probate court at any time before final settlement. Code section 12049. This court has repeatedly held that ex parte allowances of compensation to an administrator or his attorney do not amount to an adjudication but are merely prima facie correct and are subject to review. In re Estate of Metcalf, 227 Iowa 985, 289 N.W. 739; In re Estate of Schropfer, 225 Iowa 576, 281 N.W 139; In re Estate of Sawyer, 124 Iowa 485, 100 N.W. 484. See also In re Estate of Durey, 215 Iowa 257, 266, 245 N.W. 236; Des Moines Sav. Bank v....