Nash v. Sawyer

• Court: Iowa Supreme Court
• Writing for the Court: DEEMER, J.
• Citation: Nash v. Sawyer, 114 Iowa 742, 87 N.W. 707 (Iowa 1901)
• Decision Date: 19 October 1901
• Parties: JOHN A. NASH, Administrator of Estate of SAMUEL SAWYER, Deceased, Appellee, v. ELWIN SAWYER et al., Appellants

87 N.W. 707

114 Iowa 742

JOHN A. NASH, Administrator of Estate of SAMUEL SAWYER, Deceased, Appellee, v. ELWIN SAWYER et al., Appellants

Supreme Court of Iowa, Des Moines

October 19, 1901

Appeal from Audubon District Court.--HON. A. B. THORNELL, Judge.

ACTION at law on a special administrator's bond. Verdict and judgment for plaintiff, and defendants appeal.

Affirmed.

Jamison & Smyth for appellant.

John H Mosier and De Lano & Meredith for appellee.

OPINION

DEEMER, J.

Samuel Sawyer died in Audubon county about April 1, 1896, leaving an instrument, purporting to be his last will and testament whereby he attempted to dispose of his property. This will was filed in Audubon county, and the executor named therein took charge of the personal effects of the deceased. Objections were filed on behalf of defendant Elwin Sawyer and others to the probate of the will. After filing the objections, the contestants moved to transfer the case to Jones county for trial, on the ground that that county was the last place of residence of deceased. The motion was overruled, and the cause was tried to a jury, resulting in a verdict and judgment finding the will invalid. Before the trial, Elwin Sawyer was appointed special administrator of the estate by the district Court of Audubon county, and gave the bond on which this action was brought. Prior to that, however, he was appointed special administrator of the estate by the district court of Jones county, but no petition was filed with the clerk of that county for the appointment, nor does the order appointing him recite any jurisdictional facts. After the appointment by the Audubon district court, he secured an order from that court for the examination of the executor appointed by the will, and for the delivery of effects belonging to the estate, and the court made an order that all the effects be turned over to Elwin as special administrator. Pursuant to this order, he secured the property belonging to the deceased. The special administrator was also ordered to file his final report forthwith. In March of the year 1897, on petition of the widow, Ellen C. Sawyer, reciting some of the proceedings in Audubon county, and that Jones county was the last place of residence of the deceased, the district court of that county (Jones) made an order appointing Elwin general administrator of the estate, and on April ninth Elwin Sawyer, as special administrator, filed with the clerk of the Audubon county district court what is denominated his "final report," to which was attached a receipt, signed by himself as administrator of the estate. This report was disallowed, and plaintiff was appointed general administrator of the estate by the Audubon district court, and an order was made that Sawyer, as special administrator, turn over the property in his hands belonging to the estate to plaintiff, Nash. Sawyer failed to comply, and this action was brought on his bond as special administrator. The bond recited that Sawyer was appointed special administrator by the district court of Audubon county, and was conditioned that he should well and truly perform all the duties required of him as such special administrator.

The defendants contend that the Audubon district court had no jurisdiction over the estate; that deceased was a resident of Jones county at the time of his death, and that the finding of the Jones county district court on the application of the widow for the appointment of an administrator is conclusive until set aside by direct proceedings. The case is at law, and the findings of the trial court have the force and effect of the verdict of a jury, and will not be disturbed if there be a fair conflict of evidence. There is sufficient evidence to justify a finding that Samuel Sawyer was a resident of Audubon county at the time of his death, and that the Audubon district court had jurisdiction to appoint a special administrator. The appointment of the special administrator by the clerk of the Jones district court seems to have been without jurisdiction. No petition for such an appointment was filed, and no finding made that Samuel Sawyer was a resident of Jones county at the time of his death. In any event, neither Sawyer nor his co-defendants, who were sureties on his bond, are in position to deny the validity of his appointment as special administrator by the Audubon district court. The bond recites the appointment, and is conditioned on the faithful performance of the trust. Both principal and sureties are estopped from denying the validity of the appointment. Andrews v. Avory, 14 Gratt. 229 (73 Am. Dec. 355); Cotton's Adm'r v. Wolf, 14 Bush 238; State v. Mills, 82 Ind. 126; Norton v. Miller, 25 Ark. 108; Fox v. Minor, 32 Cal. 111 (91 Am. Dec. 566); Williamson v. Woodman, 73 Me. 163; Bruce v. U.S., 17 HOW 437 (15 L.Ed. 129).

The order disapproving the special administrator's final report, and directing him to turn over the property in his hands, has never been appealed from, and for that reason is final. This in itself establishes defendants' liability on the bond, and, as plaintiff is the general administrator of the estate, duly appointed by the Audubon district court he is entitled to recover, unless it be found that because of the proceedings in Jones county the Audubon county district court had no jurisdiction to appoint him. It is true that the Jones county district court first appointed a general administrator for the estate of deceased, and it is also true, as a general rule, that the jurisdiction of the probate court, in so far as it depends on place of residence of the deceased, cannot be contested in collateral proceedings. McFeely v. Scott, 128 Mass. 16; Andrews v. Avory, supra; Kling v. Connell, 105 Ala. 590 (17 So. 121, 53 Am. St. Rep. 144); Griffith's Estate, 84 Cal. 107 (23 P. 528, 24 P. 381). There are at least three exceptions to this general rule, however. If it turns out that the person on whose estate...