Martin v. Fid. & Deposit Co. of Md. (In re Jackson's Estate)
| Decision Date | 13 February 1934 |
| Docket Number | No. 42216.,42216. |
| Citation | 252 N.W. 775,217 Iowa 1046 |
| Parties | In re JACKSON'S ESTATE. MARTIN v. FIDELITY & DEPOSIT CO. OF MARYLAND. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Mahaska County; J. G. Patterson, Judge.
This is an action against the defendant as surety on the bond of the administrator with the will annexed, for his failure to account for all the assets of the estate. Judgment was rendered against the defendant for $748.64. Defendant appeals.
Affirmed.
Irving C. Johnson, of Oskaloosa, for appellant.
A. J. Walsmith, of Oskaloosa, for appellee.
C. S. Jackson, deceased, of Mahaska county, Iowa, left a last will in which she nominated Oscar Jackson and S. D. Wingate, both of Seattle, Wash., as executors of her last will and testament. The will was probated in Mahaska county, Iowa. The executors named in the will having refused to act, the court appointed Harold J. Cunningham as administrator with the will annexed. He duly qualified and filed a bond signed by the defendant company as surety, and entered upon the duties of the office.
The will, after disposing of all of the estate by numerous bequests, not necessary to be recited, also provides: “Lastly, I hereby nominate, constitute and appoint my grandson, Oscar Jackson of Seattle, Washington, and S. D. Wingate of Seattle, Washington, as the executors of this my last will and testament, and I hereby expressly direct my said executors to reduce all of the assets of my estate, whether real or personal, to cash and to make distribution of the cash proceeds derived therefrom in the manner as I have hereinbefore directed distribution to be made.” (Italics ours.)
It is conceded that at the time of her death the estate of the decedent consisted of the following property:
+-----------------------------------------------------------------------------+
¦Four lots in Monte Vista, Colo. ¦ ¦
+-------------------------------------------------------------------+---------¦
¦Money in a savings account in People's Trust & Savings Bank of ¦$3,770.40¦
¦Oskaloosa ¦ ¦
+-------------------------------------------------------------------+---------¦
¦Money due from Dexter-Horton National Bank Seattle, Wash., on ¦1,140.25 ¦
¦contract for sale of real estate made by decedent in her lifetime ¦ ¦
+-------------------------------------------------------------------+---------¦
¦all of which moneys were duly collected and received by the ¦ ¦
¦administrator with the will annexed. ¦ ¦
+-------------------------------------------------------------------+---------¦
¦The administrator also received as proceeds from the sale of the ¦615.58 ¦
¦four lots in Colorado the sum of ¦ ¦
+-------------------------------------------------------------------+---------¦
¦The total amount received by administrator ¦$5,526.23¦
+-------------------------------------------------------------------+---------¦
¦It is also conceded that the total amount of expenditures paid out ¦4,777.59 ¦
¦by the administrator on behalf of said estate was ¦ ¦
+-------------------------------------------------------------------+---------¦
¦Showing a balance due the estate of ¦$ 748.64 ¦
+-----------------------------------------------------------------------------+
After receiving the foregoing amounts and paying the foregoing expenses, the administrator left for parts unknown. Thereupon Ella M. Martin, plaintiff, was appointed administratrix de bonis non.
A final report, showing receipts and disbursements as hereinabove set out, was filed for the administrator with the will annexed by his attorney.
On March 20, 1933, at the hearing on his final report, due notice of which had been given as prescribed by order of court, the court approved the same and included in the order of approval the following order: No exception to this order of the court was made or taken by the defendant in this case or any one else, and the order and finding of the lower court is final and binding upon the administrator with the will annexed.
The administrator failed to pay or account for said balance of $748.64, and this action was commenced against the bonding company to recover the same.
[1][2] I. It is claimed that the surety on his bond is not liable for the $615.58 received from the sale of real estate in a foreign state, because the executor had no power or authority to sell the same without probating the will in the state of Colorado. The record in this case shows that the administrator with the will annexed did sell the Colorado real estate and did receive therefor the sum of $615.58.
The final report filed for the administrator shows that he sold the Colorado real estate for $615.58. This report was approved by the court without objection on the part of the administrator or the defendant. The court found that said administrator had received from the net proceeds of the sale of the said real estate the sum of $615.58.
Notwithstanding this record, defendant claims the administrator had no authority, as such, to sell said real estate, and that the sale thereof was not one of his duties, and that his act in so doing was not binding upon the surety under the terms of his bond.
It is claimed that the authority vested in the executors named in the will to sell real estate did not pass to the administrator with the will annexed. As a general rule, it is true that the power conferred upon a certain executor cannot be exercised by an administrator with the will annexed. 24 C. J. 1167. It is otherwise, however, where the will shows an intention to confer the power of sale upon the executor virtute officii, and not as involving any personal discretion on his part. In cases where the will itself shows an express direction for the sale of the real estate for the purpose of making distribution as directed in the will, the power of sale passes to the administrator with the will annexed, if the executors named fail to act. 24 C. J. 1167. Feaster v. Fagan, 135 Iowa, 633, 113 N. W. 479;Boland v. Tiernay, 118 Iowa, 59, 91 N. W. 836;Ellyson v. Lord, 124 Iowa, 125, 99 N. W. 582.
The will in the case at bar expressly imposes the duty of selling all of the assets of this estate, whether real or personal, and distributing the proceeds as follows: “I hereby expressly direct my said executors to reduce all of the assets of my estate whether real or personal to cash and to make distribution of the cash proceeds derived therefrom in the manner as I have hereinbefore directed distribution to be made.”
There is no discretion imposed in the particular executors nominated. The administrator with the will annexed was appointed to administer the estate in accordance with the terms of the will. This will could not have been administered without disposing of the real estate wherever located. In the case of Boland v. Tiernay, 118 Iowa, 59, loc. cit. 65, 91 N. W. 836, 838, we recognized the rule that “It may now be considered as definitely settled that whenever a power is given by will to executors to sell real estate with a view to the distribution of the proceeds among legatees, such power belongs to them virtute officii, and may be exercised by administrators de bonis non with the will annexed.” (Italics ours.)
In the case of Hodgin v. Toler, 70 Iowa, 21, 30 N. W. 1, 59 Am. Rep. 435, relied on by appellant, a large discretion was given to the executors, and the court there held that the power to sell did not devolve upon the administrator with the will annexed, because the personal trust and confidence reposed by the testator in the persons named as executors was not reposed in them as executors but as individuals. In that case the will did not expressly direct a sale of the real estate, and as said in Feaster v. Fagan, 135 Iowa, 633, 113 N. W. 479, 480: “There was nothing in this will vesting any discretion or personal trust in the executors, and therefore the case of Hodgin v. Toler, 70 Iowa, 22, 30 N. W. 1, 59 Am. Rep. 435” did not apply.
In cases where the power is annexed to the office of executor and is created to enable him to perform the duties imposed on him by the will, the power will be considered unpersonal and as a thing incidental to the office. “In such * * * cases, the power is annexed to the office, and not to specified donees of the power.” Weimar v. Fath, 43 N. J. Law, 1.
Under the rule of law supported by the greater weight of authority, where the will expressly directs the executor to sell the real estate and distribute the proceeds of the sale as personal property, the relation created is impersonal, and the power vested thereby passes to his successor. We think the power to sell given the executors named in the will passed to the administrator with the will annexed. This rule is sustained by the following authorities: Ellyson v. Lord, 124 Iowa, 125, 99 N. W. 582;Schroeder v. Wilcox, 39 Neb. 136, 57 N. W. 1031;Feaster v. Fagan, 135 Iowa, 633, 113 N. W. 479;Boland v. Tiernay, 118 Iowa, 59, 91 N. W. 836; 2 Woerner, Administration, 715; Page on Wills, 830; 24 C. J. 1167.
[3][4][5][6] II. Under the doctrine of equitable conversion, nothing is better established than the equitable principle that land directed to be sold and turned into money is to be considered as that species of property into which it is directed to be converted, and this is especially so where the direction is made in a will. 6 R....
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