Seery v. Murray

• Decision Date: 27 January 1899
• Citation: 107 Iowa 384,77 N.W. 1058
• Parties: SEERY v. MURRAY ET AL.
• Court: Iowa Supreme Court

107 Iowa 384

77 N.W. 1058

SEERY

v.MURRAY ET AL.

Supreme Court of Iowa.

Jan. 27, 1899.

Appeal from district court, Jones county; H. M. Remley, Judge.

Action by plaintiff to recover certain assets of the estate of his testator, which it is charged defendants have unlawfully seized and keep. There was a trial to jury, and, under direction of the court, a verdict against defendants Anna L. Murray and Bertha Seery. From a judgment thereon, they appeal. Affirmed.F. O. Ellison, J. C. Kelly, and D. A. Wynkoop, for appellants.

Sheean & McCarn and Alphons Matthews, for appellee.

WATERMAN, J.

John Seery died in Jones county, on March 1, 1895, leaving the following will: “I, John Seery, Sr., in the county of Jones and state of Iowa, farmer, being of sound mind and disposing memory, do make, publish, and declare this to be my last will and testament. And as to my wordly estate, real and personal, consisting of my farm of three hundred and twenty acres, more or less, situated on section seventeen, Washington township, Jones county; also twenty acres of timber land situated on section nineteen, Washington township; also twenty acres timber land situated on section thirteen, Richland township,--all in Jones county; and all the appurtenances thereunto belonging, consisting of all live stock, farming machinery, and produce, also the household furniture,--I give and bequeath all that is contained herein to my daughter Anne and my son Francis, conjointly. [Signed] John Seery, Sr.” Plaintiff is a son of testator, and this action is brought against Anna L. Murray, née Seery, Bertha Seery, widow of Francis Seery, and one H. L. Dehner, cashier of the Cascade Bank. There were other children of deceased, but, for reasons that will appear, they are not parties hereto. Anna L. Murray and Francis Seery, the deceased husband of Bertha Seery, are the devisees named in the will. The property that is the subject of the action consists of two certificates of deposit in the Cascade Bank, payable to testator, and also a promissory note in his favor. The value of this property is not controverted. It was found by the trial court to be $7,214.23. The charge made by plaintiff is that the will was suppressed by defendants, and that the devisees named therein, with the connivance of Dehner, secured possession of said property. The defendants claim that Anna L. Murray and Francis Seery, named in the will, were entitled by its terms to the property in question; that Bertha, the widow of Francis Seery, deceased, is, by the terms of his will, entitled to the whole of his estate. It is further claimed on behalf of defendants that there are no debts of the estate of John Seery;and that to enable the devisees to secure their property therein without the expense or trouble of probate proceedings, after the death of said Seery, Sr., they procured from each of the other children and heirs at law, including plaintiff, an assignment in writing of all interest in said estate; and that possession of the property in dispute was then taken. By a reply, the making of such assignment by plaintiff is admitted; but it is alleged that it was procured by fraud; that the will was concealed and its contents unknown to plaintiff; and that defendants falsely represented to him that the will gave them the property in question, when in truth and in fact it does not. After the assignments mentioned were made, the will came to light; and on March 16, 1896, it was probated in the district court of Jones county, and plaintiff was appointed administrator of the estate with the will annexed, and duly qualified as such. Thereafter, on May 24, 1896, this action was begun. Defendants Anna L. Murray and Bertha Seery seem to claim title to the property in question, both under the will of John Seery and under the assignments from the other heirs at law. But while there appears to be a difference of opinion between the parties as to the construction of the will, with relation to whether the property in suit is included in the devise therein made, the matter is not argued, and we shall pass that question without deciding it. The fact is that the record comes to us in such a state of elaborate confusion that it has taken more time to discover the issues and state the facts than should have been required to decide the case.

1. Defendants attempt to put in issue the validity of plaintiff's appointment as administrator. A question of that kind can ordinarily be raised in a direct proceeding only. His right or authority cannot be made the subject of a collateral attack, such as is here attempted. Lees v. Wetmore, 58 Iowa, 177, 12 N. W. 238;Murphy v. Creighton, 45 Iowa, 179. But it is said by defendants that the district court lacked jurisdiction to make the appointment, and that a jurisdictional question can be raised in any manner and at any time. The foundation for this claim is that no written petition was filed asking for the probate of the will, and it is thought that this was necessary to give the court jurisdiction. There is no statute requiring a petition to be filed. We know that it has been the general practice in this state to proceed, as was done in this case, without any written application. This construction given the statute generally by the profession, while not authoritative, is at least a strong argument against the position assumed by defendants. The Code of 1873 (section 2338) provides that any person having the custody of a will shall, upon the death of the testator, file it “with the clerk, who shall open and read the same.” And, following this, sections 2340 and 2341 require the clerk, without any other formality being prescribed, to give notice and take all other steps for...