In re Sawyer's Estate

• Decision Date: 13 July 1904
• Parties: IN RE SAWYER'S ESTATE.
• Court: Iowa Supreme Court

124 Iowa 485

100 N.W. 484

IN RE SAWYER'S ESTATE.

Supreme Court of Iowa.

July 13, 1904.

Appeal from District Court, Audubon County; O. D. Wheeler, Judge.

The opinion states the case. Modified.

Jamison & Smyth, for appellants.

L. L. Delano, for appellee.

WEAVER, J.

Samuel Sawyer died in Audubon county, Iowa, in 1896, leaving a will, which was filed for probate in said county, and contested by his wife and children, or of some of them. Pending this contest, Elwin Sawyer, claiming that Samuel Sawyer was a resident of Jones county, Iowa, at the time of his death, obtained an appointment in the latter county as temporary administrator of the estate. Later, and before the trial upon the probate of the will, said Elwin Sawyer obtained another appointment as temporary administrator in Audubon county. In April, 1897, the will was adjudged invalid and denied probate by the district court of Audubon county, and immediately thereafter Elwin Sawyer was appointed general administrator of the estate by the district court of Jones county. Soon after this appointment Elwin Sawyer made report of his trust as temporary administrator to the district court of Audubon county. The report was disapproved, and the court, ignoring the appointment in Jones county, appointed John A. Nash as general administrator. These conflicting claims of jurisdiction resulted in legal proceedings to determine which of the persons appointed general administrator was entitled to receive the assets and settle the estate. Nash brought an action upon the bond given by Elwin Sawyer as temporary administrator, and recovered judgment for the amount of the assets received by him in that capacity. On appeal to this court the judgment was affirmed. Nash v. Sawyer, 114 Iowa, 742, 87 N. W. 707. In satisfaction of said judgment Sawyer paid to Nash $2,069.30. This sum constitutes the entire estate received and administered by the latter. On June 19, 1902, Nash filed his final report, charging himself with the $2,069.30 paid by Sawyer, and asking to be credited with miscellaneous bills paid $274.60, attorney's fees to John H. Mosier $450, and to L. L. Delano $430, and for his own services as administrator $400, leaving in his hands $514.70 for distribution among the heirs. The charge for attorney's fees and for the administrator were excepted to by the heirs, and, the exceptions being overruled, this appeal has been taken.

1. It is said in argument for the appellee that the amount to be paid to the administrator for services and attorney's fees had been fixed by a prior order of the court, and cannot be questioned upon the final accounting. The claim is based upon the following facts: On March 15, 1902, Mr. Nash made a showing to the court of his desire to render a final accounting preparatory to his discharge, and obtained an order directing the report to be made at the May, 1902, term. On June 19, 1902 (the May term still pending), the final report was filed, and on June 21, 1902, an order was entered setting the matter for hearing on July 2, 1902, directing notice to be given to parties in interest. At the same term at which the final report was to be made, and three days before the report was filed, the administrator made an ex parte application to the court to fix the compensation of himself and of his attorneys for services in the matter of said estate, and the court entered an order allowing the same in the sums for which credit is demanded in the report. It is this order upon which appellee relies.

We cannot admit that such order had the effect of an adjudication which must be appealed from or set aside by direct proceedings in order to escape its effect. In the first place, the executor is an officer of the court itself, and the matter of his compensation and expenses should be and is at all times subject to the court's revision, until the final report is approved and order of discharge entered. The form of the order of allowance which is relied upon by the appellee is not given in the abstracts, but, whatever it may have been, it was an allowance to the administrator, and not to the attorneys. The attorneys were not creditors of the estate, and their fees earned were a personal charge against the administrator. See Clark v. Sayre (Iowa) 98 N. W. 485, and authorities there cited. The case thus presented is not within the rule governing the presentation and allowance of claims by creditors of the estate. In Clark v. Cress, 20 Iowa, 50, this court held that action will lie upon an administrator's bond for moneys improperly paid out, notwithstanding an interlocutory order of the probate court approving the expenditure. In Dorris v. Miller, 105 Iowa, 564, 75 N. W. 482, we quoted approvingly from the Clark Case the proposition that, “until in a proper manner the administrator is discharged from further duties and responsibilities, a party interested is not concluded by these settlements, made in his absence, and without notice.” The statute (Code, § 3398) provides that mistakes in settlements by administrators may be corrected at any time before final settlement and discharge; and in the Dorris Case we held this provision applicable to the improper allowance of attorney's fees to an administrator. After reference to the facts from which we concluded the allowance should not have been made, we said: “We are of the opinion that the settlement was not conclusive, and that the court below was right in charging the defendant with the amount paid his attorneys.” There is also a still more persuasive reason in the present case for denying the allowance of attorney's fees the conclusiveness of an adjudication. It is to be found in the facts above stated in reference to the time and circumstances under which the order was procured. As we have seen, the administrator had informed the court at the March term that the estate was substantially all administered, and procured an order directing the final report to be made at the May term next following. Upon this action being taken, the parties interested in the estate could reasonably assume and expect that no further intermediate reports or ex parte settlements would be had, and that the only matter remaining for disposition was the final report, which the administrator had asked and obtained leave to make. The claims of the administrator for compensations for his own services and expenditures are, of all the credits demanded by him, peculiarly appropriate for consideration and review upon the final report. If an administrator, after announcing to the court his readiness to make a final report, of which the heirs whose interests he represents must be notified and given opportunity to make objections, may thereafter, and within three days of the filing of such report, obtain an ex parte allowance of all his personal credits which shall be conclusive upon the heirs as an adjudication from which escape can only be had by appeal or by direct attack for fraud or mistake, then the door is open for wrongs of the most oppressive character, and final accounting by executors and administrators has little or no significance as a measure of protection to the rights of heirs and other beneficiaries of the estates of deceased persons. We do not wish to be understood as finding or intimating that the administrator in this instance attempted to obtain an undue advantage by proceeding in the manner which we have described, but the practice, if held to be correct, would be so susceptible to abuse, and so destructive to the rights of the parties in interest to obtain any proper or effective revision of an administrator's account, that the court should decline to give it indorsement in the absence of clear statutory authority therefor. Considering the fact that the administrator had announced his purpose to file his final report for the May term of court, and did in fact so file it, the presentation during the same term of his claim for these credits may well be treated as a mere incident to or part of the promised report, and subject to exception by the heirs to the same extent as if the entire accounting had been embodied in a single statement or schedule.

2. We have gone over the record with care to ascertain so far as possible the merits of the administrator's claims, and conclude without...