Witt v. Day

Given, J. 1 I. Tlie pleadings are quite voluminous, and need not be set out, as the issues will appear from tlie following statement: C. W. Snyder died testate August 29, 1882, leaving liis tliree minor children (Alva, aged 16; Cora, aged 12; and tlie plaintiff, aged 10) surviving him. His will was duly probated, by which his real estate was divided among said children, and a devise of $500 made, to bo paid out of his personal property to the plaintiff, to equalize the division. It also provided that after the payment of debts and said $500 the residue of his property should be divided equally among said children. Horace Day was named in the will as executor, and he qualified and acted as such; defendants Bracken and Carmichael being the sureties on his bond. He was also named in the will as guardian for said children, and qualified and acted as such; the defendants Bracken, Carmichael, and Goodell being his bondsmen.- Horace Day continued to act as such executor and guardian up to the time of his death, — about June 20, 1893. In obedience to a citation Horace Day filed a report as guardian, to which Alva and Cora took certain exceptions, which were heard on October 21, 1891; and it was found that Alva had been overpaid $717.99, and that there was due to Cora $2,986.79. “And, as to the matter of the construction of the will as to legacv of liosa B. Snyder, this cause is continued.” Rosa had been joined as one of the exceptors, but not having consented thereto, and at her request, her name was withdrawn. The defendant C. B. Day was appointed and qualified as administrator of the estate of Horace Day, deceased. About a year after her father’s death, plaintiff was taken to Illinois to live, and has ever since resided in that state. In May, 1891, she came to Tama county, accompanied by her uncle Mr. Winans, and, after an interview with her guardian and his bondsmen, made a settlement with them; she receiving a payment of $1,072.73, in evidence of which she executed a writing as follows: “In the matter of the guardianship — 113 — of Alva L. Snyclcr, Cora G. Snyder, and Bosa Belle Snyder, Minor Iieirs of C. W. Snyder, Dec’d; H. Day, Guardian. Disclaimer of Bosa Belle Snyder of tlie Exceptions Filed to the Several Beports, etc. Now comes Bosa Belle Snyder, of La Salle county, Illinois, and showeth to the cdurt that she is the same Bosa Belle Snyder named in the above and foregoing caption; that she attained her majority and became of the full age of eighteen years on the 18th day of July, 3890; that she has never authorized any person or persons or attorneys to appear for her in the above-entitled matter, either directly or indirectly, and that in truth and fact she is not a party to any of the exceptions filed to the several reports of her former guardian, the aforenamed II. Day, and has no exceptions to make to liis reports as such guardian; that she hereby disclaims any interest either directly or indirectly in any exceptions filed to the several reports of said guardian in her name, and asks that the same may not be considered by the. court, and she hereby acknowledges full and complete payment and satisfaction of all matters included in said several reports, from James L. Bracken, one of the bondsmen of said II. Day, guardian, so far as her interest therein is concerned, leaving only her legacy of $500.00, and her interest in the estate of her deceased father, O. TAG Snyder, yet in the hands of said II. Day, as executor, oic.,unsettled, aside from which all other claims against said H. Day, growing out of said guardianship, are fully paid off and discharged. And the undersigned asks that any and all exceptions filed in her name to the several reports of said II. Day, guardian, may be withdrawn, and that said guardian’s final report be approved. Deserving always the rights of tlie undersigned to her legacy and interest in the estate of said O. TV". Snyder not included in the reports of guardian. Bosa Belle Snyder.- Duly verified by Bosa Belle Snyder before J. AAG AVillett.” It ivas at the time of this visit that she directed the attorney prosecuting said exceptions to the — 114 — guardian’s report to withdraw her name as one of the ex-ceptors. Plaintiff claims that there is a much larger sum due to her than was paid, and that said settlement and release were obtained by fraud. Wherefore she asks that the same be set 'aside, and for an accounting, and for judgment against C. B. Day as such administrator, and against the other defendants on said guardian’s bond. The defendants denied the alleged fraud, and denied that there is anything due to the plaintiff, and in these issues we have the case on its merits. 2 3 4 II. Before inquiring as to the merits of this case, we notice the claim of the defendants that plaintiff has no right to maintain this action. It is contended that there is a misjoinder of causes of action and of parties, but not so. The cause of action is the indebtedness of the .guardian, and the parties are his bondsmen and administrator. The action is not upon the executor’s bond. That bond was brought into the record on defendants’ motion. It is not pleaded or relied upon by plaintiff as a basis for recovery. It is not necessary to an accounting, and is a mere incident to this case. It is said that bondsmen are not liable on the guardian’s bond until there is an accounting in probate. When an accounting alone is asked, that is so, but more is asked in this case. Plaintiff is asking that the settlement and release be set aside for and on the part of these bondsmen, — a subject peculiarly cognizable in equity. Por the same reason it was not necessary that the plaintiff should have first presented her claim to the defendant administrator. It is urged that the order in probate approving the guardian’s final report could only be set aside by petition within one year, and that this action is barred because not brought within five years from the time plaintiff attained her majority. It is enough to say that, as will hereafter appear, plaintiff did not learn of the frauds alleged to have been perpe — 115 — trated upon her until shortly before the bringing of this action. o III. We now inquire as to the alleged fraud in procuring the settlement and release, and in doing so wo will not discuss the evidence in detail, but only those general features of it that we regard as controlling’. We first notice the situation of the parties at the time of the settlement. Plaintiff was taken from Iowa by her aunt, with whom she lived in Illinois, when about 11 years of age, and attended the public schools. She did not return to Iowa until the time of the settlement, and knew but little about the condition of her own and her father’s estate. Shortly before coming she had been solicited to join with her brother and sister in excepting to the guardian’s report, but, being fearful of litigation, refused to do so. In May, 1891, when in her nineteenth year, she came to Iowa, to seek a settlement, accompanied by her uncle, Mr. Winans, a man of 60 years, and little if any experience in the settlement of estates. On arriving she at once informed the attorneys prosecuting the exceptions that she did not authorize their appearance for her, and would not bo a party to the litigation, and immediately went to the defendant bondsmen and their attorney and sought a settlement. The guardian, Horace Day, took no part in the settlement. It was conducted entirely by-the bondsmen and their attorney, all men of large business ability, and well versed in such affairs, — especially Mr. Bracken and the attorneys, who were most active in bringing about the settlement. They knew of the plaintiff’s fear of litigation, — a fear that had been increased by the statement to her by some of the bondsmen and the attorney that the bond w^as invalid, the guardian-insolvent, and that all she could got ivas by settlement. They knew that she was without an adviser other than her uncle, who was equally inexperienced as herself, and whose advice wTas, not to law, but settle. It is true, the attorney declined to negotiate with plaintiff in the absence of her attorney, — 116 — until informed that she had no attorney and had declined the services of those appearing for the exceptions, but it was not even suggested that she get some one to look into the matter for her. The matter to be ascertained at the settlement was the amount due to the plaintiff; and this Mr. Bracken or the attorney, with the papers before them as they were,. could have done with reasonable certainty. It is true, the plaintiff examined the papers for herself; but it is manifest that she was unable to understand them, or to gather therefrom the amount that was due to her. It was represented to her that, aside from the $500 legacy, $1,-0Y2.83 was the amount due to her; and, relying upon that representation, she received that amount and executed the release, when in fact there was a much larger sum due to her. Under the will the children were to share equally in what was left of the personal estate after the debts, costs, and the $500 legacy were paid. . Cora had been in schools away from home at greater cost than had been incurred in educating the plaintiff, yet shortly after' this settlement the court, in passing upon the exceptions of Cora to the guardian’s report, found that there was $2,980.19 due to her. No reason appears why at least that sum was not due to the plaintiff at the time of the settlement. It appears that Horace Day executed a mortgage on a farm to defendant Bracken to secure an indebtedness of $2,000 to a bank with which Mr. Bracken was connected, and also to secure his bondsmen. It does not appear satisfactorily what the bondsmen realized out of this farm, but it is shown that plaintiff was not told of this indemnity at the time of the settlement, and did not know it until shortly before the commencement of this action. Surely the circumstances under which these parties met to settle called upon the defendants and their attorney to act with the utmost good faith towards the plaintiff, and this we think they did not do. They added to her fear of litigation and anxiety for settlement by representing the bond to be worthless. They did not represent even ap — 117 — proximately tlie amount clue to her, and concealed .tlie fact of tlie indemnity tliey held. As between persons of similar business experience, dealing at arm’s length, it might be said that there was not such fraud as to vitiate this settlement, but not so in this case. The plaintiff is entitled to have this settlement and release, and the order in probate based thereon, discharging the defendants, set aside, and to an accounting. 6 IY. Our conclusion is that the settlement, release, and order based thereon, approving the guardian’s final report and discharging the bondsmen, should be set aside, an accounting had, and an order and judgment rendered for any balance found clue to the plaintiff. Question is made as to whether the $500 legacy to plaintiff is chargeable against the personal estate only, or against the whole estate, real and personal. The will answers this. After providing for the payment of debts, it makes specific devises of real estate, then bequeaths to plaintiff “the further sum of $500, to be paid out of my personal property,” and concludes by providing for an equal division of the residue. Clearly, the debts and costs of administration are to be first paid, then the legacy of $500, and the residue equally divided. The personal assets are largely more than sufficient to pay the debts, costs, and legacy. Therefore we need not inquire whether, if it were otherwise, the legacy might be made a charge against the real estate. Wo see no reason, why the $500 should not be included in this accounting. While we have much of the data before us that enters into this accounting, we have not sufficient to reach a correct and satisfactory result, and therefore the case is remanded for an accounting and decree in harmony with this opinion. — ■ Reversed. Granger, C. J., not sitting.