In re Sarbaugh's Estate

• Decision Date: 09 December 1941
• Docket Number: 45712.
• Citation: 1 N.W.2d 105,231 Iowa 320
• Parties: In re SARBAUGH'S ESTATE.
• Court: Iowa Supreme Court

1 N.W.2d 105

231 Iowa 320

In re SARBAUGH'S ESTATE.

No. 45712.

Supreme Court of Iowa

December 9, 1941

As Modified Jan. 14, 1942.

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 Section 11007 of the Code of Iowa; and any claim against said Carl P. Knox on said note individually on the obligation hereinabove referred to is barred by the statute of limitations as shown by Code Section 11007." The matter came on for trial before the court, sitting without a jury, at the conclusion of which trial the court made certain findings of fact and conclusions of law. In regard to the $4,000 note of Knox, the court determined as follows:

"The court further finds that said mortgage was a first lien on the real estate above described from March 1st, 1921, until its due date, March 1st, 1926, and for ten years thereafter and up until March 1st, 1936.

"That Carl P. Knox had, prior to the time of his appointment as Executor, conveyed said real estate to his wife, Viola A Knox, but the court further finds that if the said Carl P Knox, as Executor, had enforced said mortgage against said real estate at any time between the date of his appointment in January, 1935, and the date that the same outlawed, March 1st, 1936, the security would have been ample to have paid said note in full, and that his failure to take any action toward the collection of said note constituted negligence on his part, making him liable to the estate for the full value thereof, * * * and further finds from the evidence introduced on the trial that Carl P. Knox has been insolvent from the time of his appointment as Executor and is still insolvent and denies his ability to pay the $4000 note and interest and is in default in his indebtedness to said estate in the amount of $4585.00."

The court overruled the objections to the fees claimed by Knox in the sum of $3,807. It appointed H. E. Newton administrator with will annexed, fixed his bond at $6,000, ordered Knox to turn over the assets of the estate to the said Newton and to pay him the sum of $4,585 within ten days from his qualification.

On November 19, 1940, Knox appealed to this court. Thereafter Knox died. The administrator of his estate being unwilling to prosecute the appeal, the American Surety Company, surety on Knox's bond as executor, made application to Hon. W. L. Bliss, Assistant Chief Justice of this court, and secured from him an order granting it the right to prosecute the appeal herein. The administrator of the estate of Knox has filed a motion to dismiss the appeal, asserting that the surety on Knox's bond as executor has no right to prosecute this appeal and further that the surety company, in prosecuting the appeal perfected by Knox originally, cannot take a position in this court directly opposed to that taken by Knox in the court below.

As above pointed out, in the trial below Knox specifically pleaded that any claim against him, as executor or individually, by reason of the $4,000 note is barred by ...