Kladivo v. Sulek (In re Kladivo's Estate)
| Decision Date | 17 February 1920 |
| Docket Number | No. 33217.,33217. |
| Citation | 176 N.W. 262,188 Iowa 471 |
| Parties | IN RE KLADIVO'S ESTATE. KLADIVO v. SULEK. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Johnson County; Ralph Otto, Judge.
Suit by plaintiff, duly appointed administrator of the estate of Peter Kladivo, deceased, by the district court of Linn county, to cancel the appointment of defendant as administrator of the same estate by the district court of Johnson county, resulted in the dismissal of the petition. The plaintiff appeals. Reversed.H. G. Walker, of Iowa City, and Rickel & Dennis, of Cedar Rapids, for appellant.
Hart & Hart, of Iowa City, and B. L. Wick, of Cedar Rapids, for appellee.
Peter Kladivo died intestate November 22, 1913, leaving as his only heir Joseph Kladivo. The latter filed his petition with the clerk of the district court of Linn county, alleging that Peter was a resident of that county at the time of his death, and left personal property of the estimated value of $150. The petition was duly verified, and on December 18, 1913, petitioner was appointed administrator and duly qualified, letters of administration having been issued to him. Notice of his appointment was promptly published, and on July 23, 1918, the court approved his final report, and, as administrator, he was discharged. In the meantime, and in May, 1916, John Benish, an alleged creditor of decedent, filed a petition with the clerk of the district court of Johnson county, alleging the death of Peter Kladivo, that he was a resident of Johnson county at the time of his death, and that he was seized of certain described land and left personal property not to exceed the value of $50, and prayed that defendant, Ed Sulek, be appointed administrator. Letters of administration were issued to Sulek in June following and notice of his appointment was served by posting. Four claims were presented to him and filed aggregating $323.56, and on October 24, 1917, the administrator Sulek filed a petition praying an order for the sale of the land of which decedent is alleged to have died seized, to satisfy these claims and costs of administration. November 12, 1917, was fixed for date of hearing, and notice thereof served on Joseph Kladivo October 31st previous. Whether hearing was had we are not told, but on December 15, 1917, Joseph Kladivo filed his petition with the clerk of the district court of Johnson county, alleging the death of his brother Peter, that the latter was a resident of Linn county, that petitioner was duly and legally appointed administrator of the estate left, and was still acting as such, that the district court of Johnson county was without power or authority to appoint an administrator, and prayed that the order granting letters of administration to Sulek be set aside, canceled, and held for naught, and that he be ordered not to proceed further. In his answer Sulek denied that decedent was a resident of Linn county, and alleged that he was a resident of Johnson county at the time of his death, put in issue the jurisdiction to appoint, and pleaded that plaintiff was estopped from denying defendant's right to administer the estate.
[1][2] The law contemplates but one administration within the state, for section 3265 of the Code provides that--
“The court of the county in which a will is probated, or in which administration or guardianship is granted, shall have jurisdiction coextensive with the state in settlement of the estate and the sale and distribution thereof; and a certified copy of any order, judgment or deed, affecting real estate in any county other than that in which administration or guardianship is originally granted, shall be furnished to and entered by the clerk of the district court of the county where such real estate is situated in the probate records of said court.”
Either plaintiff or defendant, then, was entitled thereto and in no event both of them. As between several courts jurisdiction to appoint an administrator of the estate of deceased persons attaches to the court invested with probate powers for the county of his residence at the time of his death. 1 Woerner's Administration, § 204. It is so declared by statute in this state. The first paragraph of section 225 of the Code provides that--
“The district court of each county shall have original and exclusive jurisdiction to probate the wills of, and to grant administration upon the estates of, all persons who at the time of their death were residents of the county, and of nonresidents of the state who die leaving property within the county subject to administration, or whose property is afterwards brought into the county.”
[3][4] In appointing an administrator under this statute, the court necessarily decides whether decedent was a resident of the county over which its jurisdiction extends; for without so finding it would be without jurisdiction to appoint. Decisions are not wanting in which it is held that in a collateral proceeding proof may be received showing such finding erroneous, that decedent was not such resident of the county at the time of his death, and that the grant of letters of administration was void ab initio for want of jurisdiction. Perry v. St. Joseph & Western R. Co., 29 Kan. 420; People's Savings Bank v. Wilcox, 15 R. I. 258, 3 Atl. 211, 2 Am. St. Rep. 894; Olmstead's Appeal, 43 Conn. 110; Miller v. Swan, 91 Ky. 36, 14 S. W. 964. But, as remarked in Woerner's American Law of Administration, § 204:
“The more reasonable doctrine is gaining ground, and is now held in nearly all the states, that letters so granted, while they are voidable when properly assailed, are valid until revoked in a direct proceeding.”
See Coltart v. Allen, 40 Ala. 155, 88 Am. Dec. 757; In re Griffith, 84 Cal. 107, 23 Pac. 528, 24 Pac. 381; Tant v. Wigfall, 65 Ga. 412; Record v. Howard, 58 Me. 225; McFeely v. Scott, 128 Mass. 16;Johnson v. Beazley, 65 Mo. 250, 27 Am. Rep. 276;Bolton v. Schriever, 135 N. Y. 65, 31 N. E. 1001, 18 L. R. A. 242;Lyne v. Sanford, 82 Tex. 58, 19 S. W. 847, 27 Am. St. Rep. 852.
The probate court is a court of general jurisdiction in this state. Reed v. Lane, 96 Iowa, 454, 65 N. W. 380;Myers v. Davis, 47 Iowa, 325;Read v. Howe, 39 Iowa, 553. See Cooper v. Sunderland, 3 Iowa, 114, 66 Am. Dec. 52; Beresford v. American Coal Co., 124 Iowa, 34, 98 N. W. 902, 70 L. R. A. 256. Though under section 250 of the Code the clerk of the district court is authorized to make “the appointment, when not contested, of resident administrators, executors, and guardians of minors, and the approval of any and all bonds given,” and his action therein may be reviewed by the court at the instance of an aggrieved party at the succeeding term and later, on good cause shown and notice, the record of such appointments, unless assailed and reversed, is “of the same force, validity and effect, and shall be entitled to the same faith and credit, as if made by the court or by a judge thereof.” Section 252 of the Code. Its appointment of an administrator, if not appealed from or set aside, is to be treated, then, the same as though made by the district court, and the rule is well established in this state that an appointment so made cannot be assailed collaterally. In Murphy, Neal & Co. v. Creighton, 45 Iowa, 179, the court, in appointing an administrator for the estate of a nonresident, held that the validity of such appointment might not be questioned collaterally by proving that no property of the decedent was in the county. This decision was followed in Lees v. Wetmore, 58 Iowa, 170, 12 N. W. 238, and Christy v. Vest, 36 Iowa, 285, which seems to express a different view, attempted to be distinguished. In Seery v. Murray, 107 Iowa, 384, 77 N. W. 1058, the controversy was between devisees over property of the estate, and it was held that the validity of plaintiff's appointment might not be drawn in question. In Re Estate of King, 105 Iowa, 320, 75 N. W. 187, the application recited that deceased was a resident in a county other than the county of the court appointing, and this was in no manner contradicted, and, as the court could not have found him a resident of the county where the court appointing sat, the appointment was adjudged void. The rule prohibiting collateral attack where the court appointing found the residence of deceased within...
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