Tucker v. Stewart

• Decision Date: 04 May 1910
• Parties: TUCKER v. STEWART ET AL. (TWO CASES). BRIGGS v. STEWART ET AL. (TWO CASES).
• Court: Iowa Supreme Court

147 Iowa 294

126 N.W. 183

TUCKER

v.STEWART ET AL. (TWO CASES).

BRIGGS

v.STEWART ET AL. (TWO CASES).

Supreme Court of Iowa.

May 4, 1910.

Appeal from District Court, Dubuque County; M. C. Matthewes, Judge.

Actions at law upon an administrator's bond. Judgment for defendants in each case, and the plaintiffs in each case appeal. The several actions depend upon substantially the same state of facts, and the appeals will be disposed of in a single opinion. The nature of the controversy will be more fully set forth in the opinion of the court. Reversed.Hurd, Lenehan & Kiesel, for appellants.

Glenn Brown, for appellee B. W. Lacy.

Kenline & Roedell, for the other appellees.

WEAVER, J.

The issue to be considered upon these appeals can be best explained by a chronological statement of the material facts. On February 16, 1885, John H. Floyd of Dubuque, Iowa, died testate. Among the legatees named in his will were Jackson G. Tucker, Birdena Tucker, and Olive Tucker, all of whom were minors. Soon thereafter L. E. Tucker was appointed guardian of the estate of said infant legatees, and as such became entitled to receive and hold for their use all the property and moneys coming to them under or by virtue of said will. William G. Stewart was appointed administrator with will annexed of the estate of said John H. Floyd, and qualified by giving the bond upon which plaintiffs seek to recover in these actions. Said bond was executed by himself, as principal, and by M. H. Waples, Robert W. Stewart, T. G. Cragin, and B. W. Lacy, as sureties, and was duly approved June 27, 1885. On February 5, 1890, Stewart, claiming to have fully administered upon said estate, made and filed a written final report, of which he asked the approval of the court. In this accounting he claimed and took credit for an item of $6,000 which he alleged had been paid by him to the guardian of said Jackson G. Tucker, Birdena Tucker, and Olive Tucker on January 2, 1890. Notice of said final report was served upon said wards, all of whom were still minors, and upon their mother with whom they resided. No appearance was made by or in behalf of said wards to contest said report or account. It was examined by a referee appointed for that purpose who recommended its approval, and thereupon the court made an entry in the usual form approving the report, and, upon showing being made that the balance thus found against the administrator had been duly distributed, an order was entered under date of April 11, 1890, discharging said Stewart as administrator, and exonerating the bond given by him in that capacity. In the year 1896 and within one year after arriving at his majority, Jackson G. Tucker, in his own behalf and in behalf of his sisters, Birdena Tucker and Olive Tucker, who were still minors, instituted a proceeding in said district court to set aside the order approving the final report and reopen the account of said administrator, stating as ground of such demand, that the alleged payment of $6,000 to the guardian of the plaintiffs under date of January 2, 1890, had never been made, and that the item of credit allowed therefor was false or mistaken. The sureties upon the administrator's bond were not made parties, and did not appear in this proceeding. The district court denied the relief prayed, and dismissed the bill. On appeal to this court it was decided that plaintiffs were entitled to the relief demanded and to have the approval of said report vacated and set aside, and said account reopened for the purpose of charging the administrator with the sum for which we had wrongfully taken credit. The decree of the trial court was therefore reversed, and cause remanded for further proceedings in harmony with the opinion expressed in handing down said decision. Tucker v. Stewart, 121 Iowa, 714, 97 N. W. 148.

The opinion upon said appeal was filed October 31, 1903, and thereafter on April 8, 1904, the district court, upon application of the plaintiff, entered an order setting aside the approval of the final report so far as it related to said item of $6,000, and directing the administrator to make settlement and accounting therefor to said wards, all of whom had then arrived at their majority, and were competent to make settlement with him in their own right. The administrator having failed to comply with said order and failing to pay over or account for the moneys so retained by him, separate actions at law to recover the same were begun by the said Jackson G. Tucker, Olive Tucker, and Birdena Tucker, now Birdena Tucker Briggs. These actions were instituted in November, 1904, and by order of court were consolidated for the purpose of trial. Answering the plaintiff's demand, the defendants pleaded (1) that plaintiffs' right of action upon the administrator's bond is barred by the statute of limitations; (2) that the sureties upon said bond were not made parties to the proceedings for the reopening of the administrator's account and the adjudication therein is not binding upon them; that the final report and accounting made by Stewart on February 5, 1890, was fair and regular upon its face, and was duly and regularly approved by a court having jurisdiction of the proceedings and of the parties interested therein; that said sureties had no knowledge or notice that said credit of $6,000 was not in all respects proper and just, and they relied and rested upon such settlement and order of discharge as a release of all liability on their part until they were made defendants in these proceedings nearly 15 years after the entry of said order; and that during all said time neither plaintiffs nor any one for them ever gave said sureties notice of any claim against them on account of their suretyship--wherefore it is contended that plaintiffs are now estopped to maintain an action thereon. They also pleaded as a partial defense that interest upon the item of $6,000 was paid by Stewart to the guardian of the plaintiffs for the years 1890 to 1894, inclusive. The plaintiffs base their claim and right of action solely upon the judgment of the court reopening the administrator's final account and disallowing the credit item of $6,000 and ordering said administrator to account to them therefor, and upon his default in complying with such judgment and order. The defendants in turn offer in evidence the record of the probate proceedings in the matter of said estate so far as they show the final accounting made in the year 1890 and the approval thereof. The surviving sureties upon the bond also testify to their reliance upon said settlement accounting and order of discharge, during all the period from the date of such order until the commencement of these actions. The trial court found for the defendants, and entered judgment in their favor for costs, and plaintiffs appeal.

The material facts are not the subject of any serious dispute. As will be seen by reference to the opinion filed in Tucker v. Stewart, supra, Stewart, instead of paying said sum of $6,000 to the guardian, kept and converted it to his own use, giving his personal promissory note for the amount to the guardian, who gave him a receipt for it as for a payment in money. This we held to be a fraud upon the wards, and that they were entitled to have the approval of the final report set aside, the account reopened, and the administrator held liable to pay over the money so withheld by him. Complying with this decision the trial court, as we have seen, did reopen the account and order the administrator to pay over or make settlement for the sum thus found to be in his hands. This he did not do, and plaintiffs seek in the present proceedings to enforce the collection of the debt by action on the bond given by him to secure the faithful performance of his trust. It follows of necessity that unless the plaintiffs have in some manner estopped themselves from enforcing such demands, or it shall appear that the statute of limitations has intervened, or that said judgment reopening the account was obtained by collusion or fraud, they have a clear and unquestionable right to recover, because the failure to make payment of the trust funds in compliance with the order of the court was a palpable breach of the duty, for the performance of which the bond was given as security. There is no plea that the judgment was fraudulently or collusively obtained, and the court cannot, in this proceeding, inquire into the justice of the claim upon which that adjudication was founded. Chase v. Wright, 116 Iowa, 555, 90 N. W. 357;Irwin v. Backus, 25 Cal. 214, 85 Am. Dec. 125;State v. Holt, 27 Mo. 340, 72 Am. Dec. 273.

The plea of estoppel is also manifestly without merit. There is nothing in the record tending to show that plaintiffs have in any manner deceived or misled the sureties to their injury. Beginning promptly when the eldest of the three wards arrived at majority, and while the others were still minors, they set the machinery of the law in motion to obtain redress for the wrong they claimed to have suffered. They did not err in their choice of remedy, for, until upon some direct attack, the judgment approving the final report and discharging the administrator should be set aside, it stood as a complete adjudication of the account, and no action would lie against the administrator or the sureties upon his bond to compel a restitution of the sum represented by the alleged fraudulent credit. Their only adequate relief was to be found in equity, and its aid they invoked. Considering the stubborn resistance they encountered, and the erroneous adverse rulings for the correction of which they were compelled to appeal to this court, we cannot say they are chargeable with undue delay in bringing the issue thus raised to a final hearing. Promptly, also, when the appeal was decided in their favor, they applied for and obtained the judgment reopening the account and ordering the administratorto satisfy their claim, and seven...