Rabbett's Estate v. Connolly

• Decision Date: 11 January 1912
• Citation: 153 Iowa 607,133 N.W. 1060
• Parties: RABBETT'S ESTATE v. CONNOLLY ET AL.
• Court: Iowa Supreme Court

153 Iowa 607

133 N.W. 1060

RABBETT'S ESTATE

v.CONNOLLY ET AL.

Supreme Court of Iowa.

Jan. 11, 1912.

Appeal from District Court, Dubuque County; Robert Bonson, Judge.

The trial court sitting as a court of probate made an order setting aside the allowance of a claim to M. J. Rabbett, and he both in an individual capacity and as administrator of the estate of Anna L. Rabbett appeals. Affirmed.Kenline & Roedell, for appellant.

Hurd, Lenehan & Kiesel and Lacy, Brown & Lacy, for appellees.

DEEMER, J.

Plaintiff is the administrator of the estate of his deceased wife, Anna L. Rabbett. She died intestate and without issue in June of the year 1907, possessed of certain real and personal property. Plaintiff, M. J. Rabbett, was appointed administrator of the estate in January of the year 1908. He filed no inventory of the estate, no list of heirs, and no statement of any kind showing the amount of property belonging to the estate. On December 21, 1908, he filed a claim against the estate consisting of the following items:

+-----------------------------------------------------------------------------+
                ¦Cash, paid in 1892 on various contracts for building house and making¦$3,656 ¦
                ¦improvements and repairs                                             ¦88     ¦
                +---------------------------------------------------------------------+-------¦
                ¦Cash, paid for city and county taxes, commencing 1893, including 1906¦545 68 ¦
                +---------------------------------------------------------------------+-------¦
                ¦Cash, paid for repairs and improvements since death of decedent      ¦524 05 ¦
                +---------------------------------------------------------------------+-------¦
                ¦Cash, paid for funeral and other expenses                            ¦489 25 ¦
                +---------------------------------------------------------------------+-------¦
                ¦Total                                                                ¦$5,215 ¦
                ¦                                                                     ¦86     ¦
                +-----------------------------------------------------------------------------+
                

Thereupon one A. T. Roedell was appointed temporary administrator to examine into and report upon said claim, and to make return of his findings into court. On April 19, 1909, this special administrator filed a report, from which we extract the following: “He therefore states that he has made a full and complete investigation of all matters involved in such inquiry, has examined all vouchers, had witnesses before him duly sworn, went fully into all matters touching the claim of said M. J. Rabbett in relation to the building of the house on premises, the legal title to which was in the decedent, Anna L. Rabbett, payment by him of the city and county taxes, repairs, and improvements made, also funeral and other expenses and from such personal examination reports as follows.” On the first item of Rabbett's claim he allowed the sum of $3,594.30; on the second the sum of $583.84; on the third $598.09; and on the fourth the sum of $902.50. The findings with reference to the second, third, and fourth items are here reproduced:

“(2) I find that from 1892 up to the present time said M. J. Rabbett has paid the city and county taxes on said premises in the total sum of $583.84.

(3) I find that M. J. Rabbett was authorized by the court herein to take charge of said premises, make repairs, and collect rents, and, in accordance therein, said M. J. Rabbett had made necessary repairs and improvements aggregating $585.09, for which sum he is entitled to reimbursement from said estate.

(4) I find that M. J. Rabbett has paid out for funeral expenses, cemetery lot and perpetual care, and expenses of last sickness, the sum of $902.50, for which he is entitled to be reimbursed from said estate.”

The total allowance made to claimant was $5,665.73, and this did not include any items of interest. On April 19, 1909, this report was approved by the court, the temporary administrator was allowed the sum of $15 for his services, and the claim was established and allowed against the estate to the amount of $5,665.73. On June 1, 1909, the administrator made application to sell certain real estate of the deceased to pay allowances and claims, including that allowed upon his claim; this application concluding as follows: “That it is necessary for paying off claims against said estate to sell said real estate; that your petitioner is the heaviest claimant, is the widower of decedent, and as such is entitled to one-half of said estate, said decedent having left no children, has lived on said premises since the house was built thereon by him in 18--, and is desirous of taking care of all claims herein and retaining the legal and equitable title to said premises, and to that end is willing to pay all claims against said estate in full, court costs, and costs of administration, should the court authorize him to make a sale of said premises to himself personally; that, as shown by his claim allowed herein, the same grew largely out of the building of the house on said premises. Wherefore, your petitioner asks the court to enter an order herein empowering and directing him to make a sale of said premises to himself personally, appointing appraisers to fix the value of same, and prescribing the notice to be fixed in relation thereto.”

On June 19, 1909, Johanna Connolly and Eliza Connolly, heirs at law of Anna L. Rabbett, deceased, appeared and filed a motion to set aside the allowance of Rabbett's claim, and to “have said claim heard by the court upon competent proof, and to require the administrator to appear and submit to examination touching the property of said decedent in his hands or under his control or within his knowledge, upon the following grounds: (1) Because no sufficient account is made of the personal estate of the decedent. (2) That M. J. Rabbett, the administrator of the estate of Anna L. Rabbett, has made application to sell the real estate of decedent to pay a claim made by himself for the sum of $5,665, which on its face should not be charged to decedent's estate. (3) That before such a claim should be allowed by the court, or an allowance made by a special administrator approved, it should appear that the claim was established by competent evidence. The special administrator appointed to examine this claim is not a lawyer or competent to judge of the sufficiency or competency of the evidence submitted in proof of the claim, and does not set forth in his report the evidence upon which the claim was allowed. (4) The administrator should be cited to appear and submit to examination touching the property of the decedent received by him, and its disposition by him, and all property of the decedent of which he had knowledge owned and possessed by her during his marriage with her. And the petitioners refer to the affidavits attached in support of this motion.”

This was supported by affidavits showing that deceased at the time of her death was possessed of certain personal property, and that said administrator, Martin J. Rabbett, has made no accounting of her property received by him as administrator, or of any personal property standing in the name of his wife at the time of her death, and has made no report showing the disposition of any property belonging to his said wife, or any sufficient showing that there is and was no property of the said Anna L. Rabbett out of which to pay any claims filed against said estate. Later, and before hearing on the motion, these heirs filed an amendment setting forth the following additional grounds: “(5) Said administrator has failed to file any inventory of the property, real or personal, belonging to said estate. (6) Said administrator has failed to account for the personal property belonging to said estate, and consisting of money, security, and the capital stock of the corporation in which the money of the deceased was invested by her. In support of said motion affiants refer to the affidavits attached hereto.”

This was supported by an affidavit showing that deceased at the time of her death was possessed of certain personal property, that she made the improvements upon the lot from her own funds, and that the house upon the property was erected more than 15 years ago. On June 22, 1909, another heir of the deceased filed an answer to the application to sell real estate and objections to the granting thereof upon the following, among other, grounds: “(1) The petition was not filed in time. (2) No sufficient account has been made of the disposition of the personal estate of the deceased. (3) The administrator may not sell the property of the estate of which he is administrator to himself. The sale, even if it should be ordered and made, would be absolutely void, and might be set aside, and therefore ought not to be ordered. (4) A sale of the real property of the estate would not be necessary except to pay a claim made by the administrator himself chiefly for money alleged to have been expended by himself in the improvement of the real estate, which he asks permission to sell, and this claim on its face should not have been allowed against the estate. (5) The administrator has not furnished any sufficient proof that the money which he claims to have expended and for the expenditure of which he claims reimbursement was his money.” This...