Jordan v. Hunnell , 96 Iowa 334 ( 1895 )

Given, O. J.

The order of the court made at the February term, 1892, is as follows: “Nowi on this fifth day of the term, the final report of Alice E. Jordan, administratrix of said estate, coming on for hearing, and it appearing to the court that more than one year has passed since the administratrix gave notice of her appointment, that all claims filed and allowed against said estate have been paid, and that notice by personal service of filing of this report has been given to the heirs of said estate, it is therefore ordered by the court, that the said report be, and it is, approved, and the administratrix be discharged, and her bondsmen released from further liability.” The petition of plaintiff upon which the order of March 14, 1894, was made is in substance as follows: It recites that she is the widow of H. O. Jordan, deceased, her former appointment, final report, and discharge; that the estate was fully settled, except this claim, which was not included for the reason that it was believed that because of the relations of the parties interested the claim would be paid, but that, because of the death of J. H. Jordan, it had not been paid; that three hundred dollars were due on the claim, which ought to. be filed and collected, and praying as follows: “And for the purpose of collecting said claim petitioner asks that the estate of said H. O. Jordan be reopened, and petitioner’s final report filed therein be set aside, and that she be empowered to proceed as the administratrix of said estate upon filing her new bond in the sum to be fixed by the court.” The following is the order of court made March 14, 1894, upon said petition: “In the matter of the estate of H. C. Jordan, Deceased. March term, 1894. Now, on this third day of the term comes on for hearing the application of Alice E. Jordan, late administratrix of the above-named estate, to reopen the estate aforesaid for the purpose of filing and collecting a -claim against the estate of J. H. Jordan, deceased, and the cause is submitted to the court; and, the court, being fully advised in the premises, said application is granted as prayed for. Bond of administratrix fixed at f600.00, March 14, 1894.”

Appellant correctly states the question raised by the demurrer to be this: “Had the court jurisdiction to make the order reappointing plaintiff administratrix?” Appellant contends that this is a collateral attack upon said order; that the court had jurisdiction to make the order, and therefore it cannot be attacked collaterally. Appellee says: “We here and now frankly admit that if the court retained its jurisdiction over the estate after making the order at February term, 1892, then the order made in March, 1894, is valid and it cannot now be attached collaterally.” Appellee insists that jurisdiction ceased when the order was made at the February term, 1892, approving plaintiffs final report, and discharging her and her bondsmen. Appellant cites many authorities to show what a collateral attach is, and that this is such an attach. These we need not here notice, a,s it is plain that the question to be considered is whether the court had jurisdiction to mahe the order of March 14, 1894. There is no question but that the district court of Davis county had jurisdiction over the estate of H. C. Jordan, but the contention is whether that jurisdiction did not cease and terminate upon the settlement with and discharge of plaintiff and her bondsmen in 1892.

Appellant contends, and properly so, that administration is a proceeding in rem for the purpose of administering the assets as between creditors, heirs, legatees, and the surviving spouse. It follows that if there is no rem, — no assets, — there is no jurisdiction. It may be conceded that if, after what was supposed to be a full and final settlement, and after an order discharging the administrator, other assets are found to be administered upon, and other debts, to be paid, the court having jurisdiction of the estate may order further administration. Crossan v. McCrary, 37 Iowa, 684. It will be observed that in this case all debts against the estate, and all costs and expenses of administration were paid prior to plaintiff’s discharge in 1892, and that no other debts have been found; therefore there are no creditors to be protected by further administration. The sole purpose of further administration is the collection of the claim in suit, and it is said that in this claim we have the rem that gives jurisdiction to order further administration. This brings us to inquire, to whom does this claim belong, — to the estate or to the widow and her heirs? for we have seen that there is no right of creditors to intervene. Phinny v. Warren, 52 Iowa, 332 (1 N. W. Rep. 622, 3 N. W. Rep. 157), was an action by the heirs of Joseph P. Phinny, deceased, to recover upon a promissory note executed to deceased, brought after a lapse of five years from his death. No administration was had upon the estate, and this court held: “As no administrator can now be appointed, it appears to us that their interest is subject to nothing. Whatever obstacle, then, there might have been at one time to their maintaining an action, it has ceased to exist.” After further argument upon a rehearing, the court, adhering to the opinion, says: “During such statutory period it may possibly be the title to the property is in abeyance. At its expiration, however, the title thereto vested in the heirs at law, and they may maintain an action thereon.” If there has been no administration the lapse of time allowed therefor vests the assets in the heirs. It seems clear that it so vests when full administration has been had. In Kelley v. Mann, 56 Iowa, 625 (10 N. W. Rep. 211), it was held that the administrator de bonis non could not recover upon the bond of the former administrator for the proceeds of life insurance collected by her. Such proceeds being exempt from the debts of the estate, it was held that the persons entitled thereto, and not the administrator de bonis non, could maintain an action upon the bond of the first administrator to recover the same. If the proceeds of life insurance vest in the heirs immediately because exempt from liability for the debts of the estate, surely other assets should so vest when it is shown by the final report, approved, that all debts are paid, and the estate fully administered. Stewart v. Phenice, 65 Iowa, 476 (22 N. W. Rep. 630), was an action upon the bond of a former administratrix to recover a balance in her hands. It was held that, as the former administratrix had not given notice to creditors to file their claims, wherefore it could not be known whether there were debts to be paid or not, the plaintiff could maintain the action. The court, referring to Kelly v. Mann, supra, says: “If there were no claims against the estate in this case, it would be governed by the same principle. The heirs would have their action on the bonds for their distributive shares of the fund, but plaintiff would have no interest in it.” It seems to us entirely clear that by the facts disclosed in plaintiff’s reply all interest in this claim vested in the widow and heirs of H. C. Jordan, deceased, upon the approval of said final report; that there were, therefore, -no assets upon which to order further administration; and that said order of March 14th, was made without jurisdiction. The demurrer was properly sustained, and the judgment is therefore ■affirmed.