In re Weaver's Estate
| Decision Date | 12 January 1909 |
| Citation | 119 N.W. 69,140 Iowa 615 |
| Parties | In Matter of the Estate of JOHN WEAVER, Deceased, FRANK WEAVER, Appellee, v. GEORGE M. LAMB, Administrator et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Tama District Court.--HON. J. M. PARKER, Judge.
Reversed and remanded.
Reversed.
J. W Lamb and Willett & Willett, for appellants.
Struble & Stiger, for appellee.
The decedent John Weaver died intestate on January 10, 1907, and his funeral occurred on January 11, 1907. He left no widow surviving him. He left surviving him, however, one son, J. W Weaver, of Oklahoma, his only child. Substantially all of his estate consisted of $ 528 in money, which was upon his person at the time of his death. He was a resident of Tama County and died in such county. On January 29th the attorney of the son, J. W. Weaver, acting in his behalf, obtained from the district judge of that county sitting in chambers a formal order for the appointment of George M. Lamb, a resident of Tama County, as administrator of the estate, fixing the amount of his required bond at $ 2,000. Such order, together with the proper bond, was presented to the clerk and filed and letters of administration were issued and delivered on January 31st. Notice of such appointment was published in due form for three weeks, on February 7th, 14th, and 21st. On February 9th the appellee Frank Weaver, a brother of the deceased, filed his application that he be appointed administrator of the estate. On February 16th, he filed a petition asking the removal of appellant George M. Lamb, on the general ground that his appointment had been obtained by fraud and by imposing upon the court. In his application, and also in his petition, Frank Weaver averred that he was a brother and next to kin to the deceased, and expressly averred that the deceased left no widow nor child surviving him. On March 1st the appellee filed a substituted petition, wherein he averred that the deceased did leave surviving him a son, J. W. Weaver, of Oklahoma. He conceded that such son would have been entitled to be appointed as administrator in preference to himself if he had availed himself of his right under the statute within the time provided therein. But he averred that the son had lost his right to such appointment by lapse of time, and that he had no right to obtain the appointment of a stranger, and that the appellee had the absolute right, under the statute, to such appointment as "next of kin." This was the theory upon which the case was tried. No claim was made upon the hearing that the appellant Lamb was in any way unsuitable, nor that any fraud or imposition was practiced upon the court in obtaining his appointment. The appellant J. W. Weaver appeared in person to resist the application of the appellee, and to sustain the appointment of the appellant Lamb as having been made in his behalf. The case was tried upon the record and upon an agreed statement of facts. In such agreed statement no effort was made to show the relative suitability of the contending parties, further than that it was made to appear that the appellee could neither read nor write, and was seventy-six years of age. The trial court reached the conclusion that the appellee was entitled to the appointment as a matter of statutory right, because of the failure of the son, J. W. Weaver, to obtain his own appointment. The appointment of the appellant Lamb was therefore set aside, and the appellee was appointed in his stead. From this order ...
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