In re Estate of Malvin

Kinne, J. I. Since this appeal was taken, Sarah Malyin has died, and W. H. Malyin and S. Malyin have been appointed and qualified as administrators of her estate. A proper motion having been made therefor, — 170 — it is ordered that they be substituted as parties in lieu of said deceased. II. Samuel Malvin died on January 16, 1872, leaving'surviving Mm Ms widow, Sarah Malvin, and eleven children, eight of whom were of age. On March 13, 1872, P. S. Malvin, his eldest son, applied ,to the proper court in Delaware county, Iowa, for the appointment of himself and his mother as administrator and admin-istratrix of said estate. They filed the usual bond, and letters were issued to them. P. S. Malvin alone filed an inventory of the personal property, consisting mostly of live stock on the farm of the deceased; also some promissory notes. P. S. Malvin and decedent had for years prior to the latter’s death been partners in their farming operations, and as such owned the personal property on the farm at the time of the father’s death. It was appraised at over four thousand dollars, one-half of which belonged to the decedent. On October 14, 1878, the widow and all of the heirs filed a petition in the court, setting forth that P. S. Malvin had committed great waste, and had converted the assets of the estate to his own use, and asking the court to release the only bondsmen who resided in this state. An order to that effect was entered. In 1888, Sarah Malvin filed her report as administratrix of said estate, sotting forth, in substance,' that her coadministrator, P. S. Malvin, had taken sole charge and control of the estate; that he had wasted the same and converted it to his own use; that no part of the property ever came into her possession, or under her control; that she could not further show what had become of said, property; that P. S. Malvin absconded in 1878, and had never been heard of since; that thereafter the heirs came to an agreement as to a settlement of the estate and a distribution of the property; that by the terms of the said settlement certain of the heirs were to receive cer — 171 — tain lands, among them being Jane Clond, the daughter of the deceased, and the contestant herein; that other heirs were to receive money; in consideration of this settlement and distribution, this administratrix and her bond were to be released, and the estate considered settled; that deeds were thereafter executed in pursuance of said settlement, and that Jane Cloud received and accepted a deed to certain real estate in full settlement of her interest in the real and personal property of said estate. At this time all of the heirs, except Jane Cloud, petitioned the court for the release of their mother as administratrix of said estate. Jane Cloud excepted to the report of the administratrix on the ground that she had knowledge that her coadmin-istrator removed and sold the personal property, and that the proceeds and personal property of the estate were all being used as partnership property by herself, her coadministrator, and others of the family. The exceptions also set up the bond, and claimed that Sarah Malvin therein bound herself as surety for the acts of P. S. Malvin, and denied that any settlement had been made with her. The report and exceptions were referred to Hon. Charles Husted as a referee to report upon the facts and the law. The referee’s report was filed on April 2, 1892, and found, among other things, that “the property in which the estate owned the undivided one-half was in the actual possession of Sarah Malvin at the time of the inventory, and she permitted her coadministrator, P. S. Malvin, to remove it, and reduce the same to his own possession, and that he afterward wasted it.” Also that there was no agreement of settlement, whereby Sarah Malvin was to be released from liability to contestant for her share of the personal property. Among other conclusions of law, the referee found that, as the personal property belonging to said estate, other than notes, was in the — 172 — possession’ of said administratrix, she should have administered upon the same; that she failed so to do, and permitted her coadministrator to remove said property from her possession to his sole possession, and that while he so held it Jie converted it to his own use, and that she was liable to the contestant for her share of the same, being two thirty-thirds thereof, and fixing the amount; that she was also liable to the contestant for her share of certain notes stated; that her liability for waste of said notes- grew out of the execution as principals by her and P. S. Malvin of their joint bond, whereby she became a surety for her coprincipal. June 10, 1892, the administratrix filed exceptions to the report of the referee both of fact and law, and embracing the matter heretofore stated. On the same day contestant moved to strike the exceptions from the files, because the first day of the term was May 23d, and the exceptions were not filed until the seventh day of the sessions of the court. The administratrix filed a supplemental report, setting forth certain notes, and showing that the statute of limitations had run against them before the death of the intestate, and that they were worthless; whereupon the parties agreed, and it was conceded by the referee, that the amount of these notes should be deducted from the total amount of the judgment recommended to be rendered against the administratrix. The court then entered judgment sustaining the motion to strike the exceptions, and approved the report as modified by the aforesaid agreement, and rendered judgment accordingly. From this ruling and judgment the administratrix appeals. III. The first question presented is upon the court’s ruling in striking the exceptions of the adminis-tratrix from the files. If this order is sustained, it leaves the appellant without any exceptions filed to the report of the referee, and hence without a standing in this court to question the correctness of the findings — 173 — of the referee and the action of the conrt thereon. It has been the uniform holding of this court that in order to review the report of a referee, on appeal, in this court it is necessary that exceptions be taken thereto in the lower court. Roberts v. Cass, 27 Iowa, 226; Edwards v. Cottrell, 43 Iowa, 201; Washington Co. v. Jones, 45 Iowa., 262; Bauder v. Hinckley, 60 Iowa, 185, 14 N. W. Rep. 228; Bolton v. Kitsman, 80 Iowa, 343, 45 N. W. Rep. 876; Feister v. Kent, 91 Iowa, 1, 60 N. W. Rep. 495. So, also, it has been held that unless an exception has been taken to the judgment in such cases it is not sufficient. Bauder v. Hinckley, 60 Iowa, 185, 14 N. W. Rep. 1 228; Bolton v. Kitsman, 80 Iowa, 343, 45 N. W. Rep. 876. We must, then, determine as to whether these exceptions were filed within the proper time. The statute provides that “the trial by referee shall be conducted in the same manner as a trial by the court.” Code; section 2820. By section 2821 it is provided that the report may be excepted to and reviewed in like manner as if the action had been tried by the court. Section 2830 requires conformity in proceedings before referees to the rules observed in trials to the court. Section 2831 provides: “An exception is an objection taken to a decision of the court or party acting as the court on matter of law. The party objecting to the desicion must do' so at the time the same is made (but if decision is on motion, demurrer or judgment exceptions may be taken within three days) and embody his objection in a, bill of exceptions. * * * *” From the foregoing statutes and decisions it clearly appears that; in order to bring up for review in this court alleged errors in the report of the referee, timely exceptions must be filed thereto in the trial court. The rule is the same a.s if the case had been tried to the court. It appears in this case that the referee’s report was filed on April 2, 1892, in — 174 — vacation. The first day of the next term of court was May 23, 1892; and the exceptions were not filed until June 10, 1892, and on the seventh day of the session of the court. There is good reason why a party should not be compelled to anticipate that a referee to whom a case has been referred may file his report in vacation, and that objections should be required to be filed 2 thereto, or within three days after it was in fact filed. But there appears to be no reason why parties should not be required to conform to the substantial requirements of the statute, and file their exceptions to such reports within three days after the opening of the term of court first following the time when the report is in fact filed. Such a holding works no injustice, is in conformity to the manifest requirements 3 of the statutes, and tends to uniformity of (practice. To obviate the objection made that the exceptions were not filed in time, appellant says she filed a supplemental report on the day these exceptions were filed, wherein she set out the fact that certain notes which the referee had charged to her were barred by the statute of limitations when, they came into her possession, and were in fact worthless» It is claimed that this had the effect of reopening the report of the referee and the case, and hence the exceptions were in time. We do not think so. When this supplemental report was filed, the parties agreed that there should be deducted from the amount of the judgment recommended by the referee the amount of these notes, and the referee acceded to this. It can make no difference whether the referee acceded to it or not. When he filed his report, his connection with the matter ceased and he had no further power in the matter, unless by virtue Of an order of the court, or an agreement of the parties. No such' agreement was made, and no order was made'by the court. The — 175 — report was not changed, but the court simply modified the referee’s report to the extent indicated, and rendered judgment for the balanceasrecommendedbyhim. Appellant’s exceptions were filed prior to the time she filed her supplemental, report. These facts had no effect upon the neglect of appellant to file her exceptions in time.' Hence appellant has no exceptions to the findings of the referee, and the court did not err in striking them. With the record in this condition, appellant cannot be heard upon this appeal upon the merits of the case. — Affirmed,