Irwin v. Keokuk Sav. Bank & Trust Co.
| Decision Date | 23 June 1934 |
| Docket Number | No. 42515.,42515. |
| Citation | 255 N.W. 671,218 Iowa 477 |
| Court | Iowa Supreme Court |
| Parties | IRWIN v. KEOKUK SAV. BANK & TRUST CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Lee County; John M. Rankin, Judge.
Action in probate against the defendant executor of the estate of Alexander E. Johnstone to recover a specific bequest. Judgment for the plaintiff, and the defendant appeals.
Affirmed.
See, also, 255 N. W. 670; (Iowa)254 N. W. 806.G. L. Norman and Burrows & Burrows, all of Keokuk, for appellant.
B. F. Jones and Hollingsworth & Hollingsworth, all of Keokuk, for appellee.
Alexander E. Johnstone died testate on or about February 27, 1920, in Lee county, Iowa, possessed of property, real and personal, of the aggregate value of approximately $260,000. Among the bequests made by him was one of $5,000 to appellee, who is a grandson and namesake, then a minor about nine years of age. The appellant duly qualified as executor on March 9th following. On April 21, 1921, appellant filed a report, including therein an application to the court for authority and permission to pay the bequest of $5,000 to appellee by the transfer to his father of a note and trust deed to some lands in Missouri for an equal amount. Time for hearing on the report was fixed by the probate court, the order providing for notice by posting on the bulletin board in the front hall of the Lee county district courthouse. The notice, which was duly posted, made no reference to the application for distribution of the note and trust deed to the parents of appellee in substitution of the cash bequest. Service was, however, accepted thereon by appellee's mother. The notice thus served upon her was accompanied by a copy of the executor's report. Upon hearing, the executor was, in general terms, authorized to transfer the note and trust deed to the Missouri property to the father as natural guardian of appellee in payment of the cash bequest. No guardian has ever been appointed for appellee and no one having authority to do so appeared for him in the hearing. He attained his majority on September 17, 1931, and on the following day demanded of appellant payment of his legacy. The Missouri property, in the meantime, had yielded an income of $1,905,47, which sum appellee tendered as a credit to appellant, together with a deed to the Missouri land, title to which, by foreclosure of the trust deed, was then in appellee. The record shows at least substantial disbursement of all funds coming into the possession of appellant. The notice of disaffirmance by appellee of the arrangement had between the executor and appellee's father was served on the earliest possible date after attaining his majority.
The court found in favor of appellee and judgment was entered against appellant for the full amount of the bequest, plus interest at the rate of 6 per cent. after allowing credit thereon for the amount of the net income received by appellee's father from the Missouri property. The order and judgment of the court also requires appellee to convey the Missouri property to appellant by quitclaim deed.
It appears from the record that the testator succeeding his father in a like position was long associated in business as a stockholder of the appellant bank and in his will gave expression to his confidence therein and particularly in one of its officers. The record contains no evidence of bad faith on the part of the executor and, at the time of the transaction complained of, the note, secured by the trust deed, was worth its face. The depreciation in land values, which necessitated the foreclosure of the trust deed, is attributable to the prevailing depression.
Appellant, for defense, relies upon the order of the probate court authorizing the substitution by the executor of the note and trust deed for the cash bequest. The judgment of the probate court, who made the order of substitution, called as a witness, testified that nothing was said in the hearing about the cash bequest.
[1][2] It would seem to be almost too obvious for discussion that the natural guardian of appellee was wholly without authority to receive payment of the legacy either in cash or its full equivalent in property. This being true, the probate court which acted without the appearance of a guardian or guardian ad litem was wholly without authority to authorize the executor to substitute the note and trust deed for cash. No authorities are cited to the contrary by appellant, and those cited offer no aid at this point.
[3] Reliance upon the general power and authority of the probate court to direct and control the executor in the administration of the estate is not sufficient. It is true, as claimed by appellant, that the executor is the officer of the court and in all matters coming within the proper, legal administration of the estate, is bound to observe and obey the orders thereof. Authorities need not be cited at this point.
[4] No application was made by appellee to set aside the order relied upon before the commencement of this action. This failure is to some extent relied upon by appellant. The order being wholly void, it was, under familiar rules of law, subject to attack without having been first set aside.
[5][6] Minors who are unable to act for themselves may not be legally deprived of...
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