Packer v. Overton
| Decision Date | 07 April 1925 |
| Docket Number | 36577 |
| Citation | 203 N.W. 307,200 Iowa 620 |
| Parties | A. MARGARET PACKER, Appellee, v. ROY OVERTON, Administrator, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 2, 1925.
Appeal from Lee District Court.--JOHN E. CRAIG, Judge.
APPLICATION on behalf of certain heirs of Mary E. McChord and Avey L Powell, legatees under the will of Elias Overton, for an order of distribution of two legacies of $ 1,000 each bequeathed to Mary E. McChord and Avey L. Powell under said will, and to require the administrator with the will annexed "to sell such of the real estate as is necessary to pay said legacies, with interest." Cause tried to the court resulting in an order and decree granting the prayer of the application, and directing the administrator to pay into the office of the clerk of the district court at Fort Madison, Iowa, the sum of $ 2,740, with interest at 6 per cent from September 6, 1923, for distribution among the heirs of Mary E. McChord, and a like sum to be paid to said clerk for distribution among the heirs of Avey L. Powell, and that said amounts constitute a lien on a described 640 acres of Lee County, Iowa, land owned by Elias Overton at the time of his death. From the decree entered, the administrator appeals.
Affirmed.
McCoid & McCoid and E. H. Pollard, for appellant.
John P. Hornish, for appellee.
DE GRAFF, J.
Appellees, as heirs of certain legatees under the will of Elias Overton, pray for an order of distribution of legacies, and seek to have impressed a lien for the amounts due, on certain real estate of which the testator died seized. The defendant-appellant is the administrator with the will annexed.
A preliminary question, not involving the merits of this case, is presented on motion of appellees to dismiss the appeal, which, in logical sequence of the propositions submitted, should be first determined. The motion is predicated on the ground that the administrator has no right to prosecute this appeal. We cannot agree with this contention. It is the duty of an executor or administrator to carry into effect the provisions of the will; and if, perchance, an erroneous order is made or an improper judgment entered with respect to the administration of the estate, it is his right to have the matter reviewed. In re Estate of Bagger, 78 Iowa 171, 42 N.W. 639. An executor or administrator acts in a representative capacity. By fiction of identity he is the person of the testator, and it is to him that all interested parties must look. He is charged with the duty of resisting unfounded claims, and to see to it that there is no improper diversion of funds or property in his hands. Briggs v. Walker, 171 U.S. 466 (43 L.Ed. 243, 19 S.Ct. 1). He represents all parties and all interests in the estate. Leighton v. Leighton, 193 Iowa 1299, 188 N.W. 922. For this reason he was made the party defendant in the instant case, and he is the only party who could appeal and preserve rights, if any, adversely affected by the judgment. The residuary legatee under the will of Elias Overton was affected, in a pecuniary sense, by the decree entered; and it was the privilege and right of the administrator to question on appeal the correctness of the decision made. The motion of appellee to dismiss is overruled.
We now pass to the merits of the case. Numerous defenses were pleaded by the administrator in his answer, which matters were embodied, in the first instance, in a demurrer to the application, which was overruled by the court. Among the defenses pleaded are: (1) statute of limitations; (2) laches; (3) presumption of payment by lapse of time; (4) abatement by reason of prior pending action involving the same subject-matter; (5) ademption.
The record discloses that the testator died March 29, 1893, and that his will was admitted to probate September 6, 1893, and the executor qualified. The provisions material to our inquiry read as follows:
It is thus seen that by the terms of the will a trust was created during the life of the testator's wife, and upon her death "whatever remained" passed to the remainderman, who happened to be the executor named in the will of Elias Overton. The wife, Eliza, joined with her husband in this will, and released her right of dower to the property given her in trust. She died in January, 1915. The original application for order of distribution was filed March 22, 1916; and the instant application, which may be considered as supplementary to the former, was filed February 24, 1923. The executor died in December, 1920, and thereafter the present administrator was appointed. It may be further observed that the probate record of Lee County, Iowa, discloses that the executor filed no inventory or list of heirs, filed no proof that he posted notice of his appointment, made no report to the court of his doings in the premises, made no distribution of the assets of the estate, filed no application for any purpose, made no final report, and was never discharged as executor of the estate. Although executor in name, he performed no official acts.
The proof is sufficient that the legacies in question have not been paid, nor do we find that the defense of ademption has been sustained. We conclude, from a careful review of the testimony, that the gifts by Elias Overton to his daughters during his lifetime were in addition to the legacies provided in the will, and were not intended by him as advancements. There is no occasion to review the evidence in these particulars.
The legacies in question are pecuniary and general. They are payable from the general estate of the testator; and the entire residuary estate, both real and personal, is charged therewith. Lacey v. Collins, 134 Iowa 583, 112 N.W. 101. It is clear that the executor was a trustee for the purpose of carrying out the provisions of the will. We are not called upon to construe the instant will, or to determine whether the legatees were entitled to payment of the legacies before the termination of the life estate. The parties themselves (executor and legatees) gave a practical construction to the will. They recognized that, in the absence of personal property with which to pay the legacies the rights of their mother, as owner of a life estate, should not be disturbed. They recognized that the legacies constituted a charge upon the estate, both real and personal, and that the matter should remain in statu quo until the death of the life tenant. This understanding is...
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