Lohman v. Mockler (In re Monahan's Estate)
| Decision Date | 31 December 1920 |
| Docket Number | No. 33042.,33042. |
| Citation | 190 Iowa 578,180 N.W. 644 |
| Parties | In re MONAHAN'S ESTATE. LOHMAN v. MOCKLER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cedar County; F. O. Ellison, Judge.
Both parties have appealed. The controversy is over an attempt to charge the share of appellant Lohman with the payment of two notes, which the husband of Lohman, May L. Lohman herself, and decedent signed. The executor has paid these notes upon allowance of a claim therefor. The further facts appear in the course of the opinion. Affirmed.
See, also, 185 Iowa, 448, 170 N. W. 744.Hamiel & Mather, of Tipton, and Grimm, Wheeler, Elliott & Jay, of Cedar Rapids, for appellant.
C. J. Lynch, of Mechanicsville, for appellee.
I. In his first progressive report the appellee executor sets forth that among claims filed with him were two notes made payable to Anna M. Dean; each bears date May 16, 1904; each is for $1,000, with interest from date; one became due by its terms on February 15, 1906; the other on February 15, 1907; each is signed, H. W. Lohman, May L. Lohman, Mrs. Jane Monahan. H. W. Lohman and May L. Lohman are husband and wife. The payee, Anna M. Dean and May L. Lohman are daughters of Jane Monahan. The report declares that the executor cannot make final settlement and accounting because litigation is pending between the estate and May L. Lohman with reference to her liability for payments which the estate has made on said note. He states that the claims based on said notes was allowed and paid by him, and that he paid the total sum of $2,592.18. He recites that he has brought action against May L. Lohman to recover on the note due February 15, 1907; that decree was entered therein, finding that decedent, Jane Monahan, and May Lohman were cosureties on said note, and that therefore the estate was entitled to recover but half the amount paid on said note by the executor, to wit, $682.30. He shows he has appealed from the refusal of the court to let him recover the other half of the payment he had made on said note. (And that question is one question in this appeal.)
The executor recites in his report that Jane M. Monahan, his decedent, was a surety only, and that from such information and advice as he could obtain he was of opinion that the two Lohmans were principals so far as decedent is concerned, and that therefore May L. Lohman is liable to the estate for all that the estate has paid on both notes. He prays approval of his report.
May L. Lohman objected to the payment of the $2,592.19 which the executor had made on the two notes. She objects to having deducted in distribution and from her share the sum of $1,376.64, which the executor alleges he paid on claim for the note due February 15, 1906. One ground of this objection is an assertion that this payment is not a bona fide one, but was only a conditional one. She prays that no deductions be made from her share on account of the payment of said note. She prays further that no final order be made as to the $688.52 which is being withheld by the executor from her share on account of payment made by him on one of the notes, and that no final order be made in these premises until final decision by the Supreme Court. The objections state by way of argument that objector was not a principal debtor on the note, but only a cosurety with decedent, and that neither of them received any benefit of said note, and that neither requested the other to sign as surety. All the objections are elaborated by various arguments; these will have due attention in the further progress of the opinion.
In passing upon the objections the court ruled that H. W. Lohman alone was the principal, and that the other signers signed as cosureties and are liable as such. It was ordered that in making distribution the executor shall deduct from the share of May L. Lohman half the amount which the estate has paid on one note, and that the other half should be borne by the estate, and that the distribution should be made in harmony with this finding. There seems to be no serious objection on part of May L. Lohman to having the estate as a whole charged with the claim made on both notes. She does object to having her share as legatee or devisee under the will of Jane Monahan charged with anything on account of said notes. As already said, both she and the executor have appealed. While in strictness nothing seems to be involved except the payment of the note due February 15, 1906, the decision of the questions presented on this appeal must of necessity determine what shall be done with reference to the payment of the other note.
[1] II. Assume for the purposes of present statement that decedent and May L. Lohman are cosureties, and it results that (unless the claim is in some manner barred) the trial court rightly found May Lohman owes half of the notes and the estate of decedent owes the other half. So assuming, why was it error for the court to order that half of the note owing by Lohman should be deducted from what she received under the will made by her cosurety. Are the arguments advanced against such deduction tenable? One of these arguments is that since the will of decedent, under which Lohman takes her share provides that legatees or devisees named shall not be paid their share until they discharge their indebtedness to Anna M. Dean, and since no such provision is found as to any indebtedness from May Lohman to Dean, that therefore the will controls, and that as a consequence nothing should be deducted from Lohman's share because requiring such deduction of the other legatees and devisees without including Lohman is equivalent to a binding provision in the will that no deduction shall be made from the share of Lohman. The ultimate argument is that if the will be taken by its four corners it is made to appear testator did not intend there should be any deduction made from what was devised to May Lohman.
It may be conceded that the will could have created a species of spendthrift trust, and could have effectively provided that nothing willed to May should be seized for any of her debts. But there is no such provision, unless it can be construed out of the failure to name May as one of those who should not receive their share under the will until they paid Dean. We do not think this failure to name her in that connection has the effect of preventing Dean from seizing any property owned by May in satisfaction of the debt owing Dean, and that nothing found in the will makes the share given Lohman immune from such seizure. One ground upon which we reach this conclusion is that the debts to which the will does refer as deductible were debts to which testatrix was not a party, and wherefore the will spoke to debts with which the adjustment of the Monahan estate would have had no concern if such provision as to deduction had not been made in the will. In a word, we are of opinion the will has nothing to do with the question of what payment May L. Lohman shall be compelled to make on the notes she has signed, and that it does not control on what property of Lohman may be seized in satisfaction of such debt. We are unable to see how in Re Fussell's Estate, 129 Iowa, 498, 105 N. W. 503, helps either party on this point.
[2] III. We do not question it to be a general and well-settled rule that as between cosureties the only right to recover is based on a duty to contribute; and that no right of contribution exists where one surety has made a payment when under no compulsion to pay-makes a voluntary payment. See 32 Cyc. p. 281. But is this executor in the position of one who asks contribution from a cosurety on account of a voluntary payment made? We answer nay. He is not a surety at all, and is asserting no rights of a surety. We approve the holding of Auchampaugh v. Schmidt, 70 Iowa, 644, 27 N. W. 806, 59 Am. Rep. 459:
“But a surety paying a debt after it has become barred against the principal would be remediless.”
[3][4] But, as said, this executor is not a...
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