Miller v. Hill (In re Anders' Estate)

• Decision Date: 11 April 1947
• Docket Number: No. 46937.,46937.
• Citation: 238 Iowa 344,26 N.W.2d 67
• Parties: In re ANDERS' ESTATE. MILLER v. HILL et al.
• Court: Iowa Supreme Court

238 Iowa 344

26 N.W.2d 67

In re ANDERS' ESTATE.MILLER

v.HILL et al.

No. 46937.

Supreme Court of Iowa.

Feb. 11, 1947.

Rehearing Denied April 11, 1947.

Appeal from District Court, Polk County; Tom K. Murrow, Judge.

Action by executor and trustee to terminate contract made by him for the sale of real estate. Counterclaim by purchasers for order requiring executor and trustee to correct title and specifically perform contract. From judgment ordering correction of title and performance of contract, executor and trustee appeals. Opinion states the facts.

Affirmed

Oliver H. Miller, of Des Moines, for appellant.

Hansen and Wheatcraft, of Des Moines, for appellee.

OLIVER, Justice.

The controversy in this case is whether the record title to a residence property in Des Moines, as shown by the abstract of title, is merchantable. Appellees E. T. and Alice Hill contracted to purchase said realty from appellant Miller, executor and trustee of Frank W. Anders, deceased, for $3,300. The agreement required that appellant furnish an abstract showing good and merchantable title.

Appellant executor and trustee made application in probate for an order that appellees pay the balance of the purchase price or the contract be ordered terminated. Previously appellant, upon notice by posting, had secured an order in probate requiring appellees to pay rent for the property. Appellees appeared and answered, alleging they had been ready, willing and able to pay said balance upon appellant's providing merchantable title to the property, which appellant refused to do. By counterclaim, appellees prayed that appellant executor and trustee be ordered to correct the title.

The court held the title was not merchantable, ‘that Charles Burlet, his heirs and widow have an apparent interest in or claim against said property such that the title thereto is not clear.’ Appellant was ordered to make the title merchantable and show the same in the abstract of title.

The real estate in question was in 1913 conveyed by warranty deed to Frank W. Anders and Flora E. Anders, which deed did not state the nature or share of the interest of each grantee. Section 557.15, Code of 1946, provides such conveyances create a tenancy in common unless a contrary intent is expressed. The grantees are presumed to take equal shares. Williams v. Monzingo, 235 Iowa 434, 439, 16 N.W.2d 619, 156 A.L.R. 508.

In 1941 Flora E. Anders died intestate, presumably owning an undivided one half interest in said property as a tenant in common with her husband Frank W. Anders. Charles Burlet, a resident of California,was one of her heirs at law and upon her death title to an undivided interest in said real estate apparently passed directly to him, subject to be divested for payment of claims, if the personal property was inadequate. It did not come primarily into the hands of the administratrix. Flora v. Brown, 159 Iowa 253, 140 N.W. 364. Charles Burlet died in June, 1943, leaving a widow (and perhaps other heirs) to whom this apparent interest in the real estate passed.

The estate of Flora E. Anders was probated in the Polk District Court. Inventories of the administratrix of that estate listed this and other real estate, estimated value about $14,000, stocks, bonds, etc., estimated value about $20,000, all jointly owned by Mrs. Anders and her husband Frank. The inventory recited that none of said joint property had come into the hands of the administratrix but all was held by Frank Anders, who, since the death of his wife, claimed the same to be his sole and absolute property as the survivor under an oral agreement between said spouses.

In 1941 the administratrix of the estate of Flora E. Anders made application to the probate court, stating this joint property was the only property of decedent of which the administratrix had notice and asking that the probate court hold a hearing and determine whether Frank Anders owned all said property, or whether said property or some of it should be turned over to said administratrix for administration. In accordance with an order of the probate court, notice was given by posting and by registered mail. The notice mailed to Charles Burlet, at Pasadena, California, recited the application of the administratrix and the time and place set for hearing, ‘at which time you may appear and show cause, if any there be, why an order should not be entered by the court determining the question aforesaid and holding that all the property of which decedent died seized in fact now is owned by Frank W. Anders as his sole and absolute property, or otherwise.’ Charles Burlet did not appear. Nor did any heir make resistance. The hearing was conducted by the attorney for the administratrix. The evidence consisted of testimony of a niece and an affidavit of Frank Anders.

The probate court found and adjudged that Charles Burlet and the other heirs were in default, and that, under the undisputed evidence ‘to which no objection has been made,’ Flora and Frank Anders had held all their real and personal property under a valid oral agreement that upon the death of either the survivor should become the sole and absolute owner thereof, and that ‘all of the property of which decedent died seized or in which she had any interest, insofar as the estate is concerned’ and ‘(insofar as concerns all persons interested in this estate including * * * and Charles L. Burlet the sole and only heirs at law of said decedent)’ ‘now is the sole and absolute property of Frank Anders, her surviving spouse, and said administratrix is not entitled to take possession of, nor have administration upon, any of said property.’

It will be noted that the application of the administratrix and the adjudication were not limited to merely determining how the property should be listed but purposed to extinguish the title of the heirs to all property of which Flora E. Anders died seized.

The final report of the administratrix of the estate of Flora E. Anders recites the foregoing adjudication and states no assets of the estate have come into her hands, as such. ‘That this administration, nevertheless, has served to establish in said surviving spouse, (Frank Anders) as of the date of decedent's death, sole and absolute ownership insofar as concerns all persons interested in this estate in and to the real estate and personal property valued at more than the sum of $35,000, subject only to debts or charges of this estate.’

Notice of hearing upon the report was given by posting at the courthouse door. In May, 1942, the probate court approved the report, ordered the administratrix discharged and the estate closed, and found that through the administration and by the proceedings in probate above mentioned, sole and absolute ownership of the personal property and 10 parcels of real estate (one of which is the property here in question), ‘insofar as concerns anyone else interested in this estate, has been established in Frank W. Anders, surviving spouse of decedent,’ and ‘that the administratrix and her attorney have rendered necessary and efficient services for this estate, resulting in establishing and clearing the title to all of said property of which decedent died seized,’ and that the charges and costs of administration constitute charges against the property so acquired by the surviving spouse, and should be paid by him. Apparently Flora E. Anders had no debts and the charges and costs of administration of her estate were but a small fraction of the personalty listed in the inventory.

Aside from securing release from inheritance and estate tax liability and the payment of personal taxes, the only thing allegedly accomplished by the administration of Mrs. Anders' estate was the establishing or quieting of title by the probate court to all the property therein listed, in Frank W. Anders and against the heirs of Mrs. Anders. Frank W. Anders did not make claim to this property as the surviving spouse or heir of Flora E. Anders. His claim was adverse to those interested in the estate. His theory, which the probate court confirmed, was that he acquired the property by contract, as the surviving joint tenant. 48 C.J.S., Joint Tenancy, § 1, p. 910. His status in making such claim was that of a stranger to the estate.

Frank W. Anders died in November, 1942. Prior to his death he had transferred his property to appellant as trustee. Appellant was also executor of Frank Anders' will, which was probated in the Polk District Court, and, in his probate inventory, listed the property here in question as property of the trust. In 1943 appellant, apparently as trustee and executor of Frank W. Anders, made the contract to sell the property to appellees.

Appellant asserts the apparent interest of Charles Burlet in said realty (as an heir of Flora E. Anders) was extinguished by the foregoing judgment and orders of the probate court in the Flora E. Anders estate. Hence he contends his record title as the legal representative of Frank W. Anders, deceased, is merchantable.

At this point the question is whether the probate court in the Flora E. Anders proceedings had or obtained jurisdiction to establish the contractual claim of Frank W. Anders to the property here involved as against Charles Burlet, an heir of Flora E. Anders.

21 C.J.S., Courts, § 303 b, p. 547, states in part:

‘Ordinarily, a probate court cannot determine a question of title to property, especially where the question arises between representatives of, or persons claiming under, decedents' or wards' estates and strangers thereto, unless such question arises collaterally as a necessary incident to the determination of other matters which are within the court's jurisdiction, or unless the court, in addition to its probate powers, possesses general powers sufficient to enable it to determine such a question.’

A leading case enunciating the rule applicable to courts which have probate jurisdiction only, and not general jurisdiction, is Stewart v....