In re Sarbaugh's Estate, 45712.

• Citation: 1 N.W.2d 105,231 Iowa 320
• Decision Date: 14 January 1942
• Docket Number: No. 45712.,45712.
• Parties: In re SARBAUGH'S ESTATE.
• Court: United States State Supreme Court of Iowa

231 Iowa 320
1 N.W.2d 105

In re SARBAUGH'S ESTATE.

No. 45712.

Supreme Court of Iowa.

Dec. 9, 1941.
As Modified Jan. 14, 1942.

Appeal from District Court, Guthrie County; W. S. Cooper, Judge.

Proceedings in probate on objections to annual report of executor. The court determined that the executor was liable to the estate for an item of $4,000 plus interest. The executor appealed, and since he is now deceased, the appeal is prosecuted by his surety.

Affirmed.

Batschelet & Vincent, of Guthrie Center, and Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellant.

Musmaker & Musmaker, of Greenfield, and Isador Robinson, of Des Moines, for appellees.

MILLER, Chief Justice.

Carl P. Knox and Eliza Sarbaugh were duly appointed executors of the estate of D. K. Sarbaugh, deceased, qualified as such and on January 21, 1935, listed among the assets of the estate a note of Viola A. Knox dated March 1, 1921, in the amount of $4,000 bearing interest at 5 1/2 per cent, secured by a mortgage on certain real estate in Adair and Guthrie Counties. Approximately one year after she qualified as such executor, Eliza Sarbaugh died and thereafter Knox continued to act as sole executor of the estate.

The $4,000 note listed in the name of Viola A. Knox (wife of said Carl P. Knox) was actually signed by Knox alone, although his wife joined in the mortgage. The real estate described in the mortgage was conveyed by Knox to his wife prior to his appointment as executor herein. The note originally signed by Knox was dated March 1, 1921, in the amount of $8,500, due March 1, 1926. The balance of the principal due on said note had been reduced to $4,000 at the time of the death of the testator herein. The interest on said note was paid up to March 1, 1938.

On April 19, 1940, Knox filed in this estate an annual report, to which report objections were filed. Among the objections asserted was the failure to list the $4,000 note of Knox as an asset of the estate. The objectors also took exception to attorney fees and executor fees claimed by Knox amounting to $3,807. Various other devisees joined in the objections made to the annual report. Knox filed a resistance to such objections and later amended his resistance by asserting as follows:

“That any claim against this executor for relief because of failure to collect a certain note signed by Carl P. Knox individually upon which the principal of said note unpaid amounts to the sum of $4,000, is barred by statute of limitations as shown by...