Milner v. Davis

SheewiN, J. Two propositions are urged by the appellants : First, that there was an election by Davis 'to take under the will; and, second, that the deposit of the purchase i. m: elec-homestead, money in the bank was a loan to the bank, and consequently a diversion of it to a use other-than for-the purchase of a new homestead. The election relied upon is the contract with Preston to complete the sale already made by Mrs. Davis, and the subsequent compliance with that agreement. The rule is firmly .established that an election must be of record, and that it is sufficient if it discloses an act or declaration plainly indicating an intention to take under the will. Craig v. Conover, 80 Iowa, 358; In re Estate of Franke, 97 Iowa, 704; In fe Estate of Froctor, 103 Iowa, 232. Before her death Mrs. Davis had sold this land to Preston, and a part of the purchase price had been paid to her, and her sick 233 ness and death alone prevented the completion oí the transaction. The defendant had agreed to this sale, and its purpose was, as stated by him,, to secure a home in town. It was perfectly proper, then, for him .to agree to complete it as soon as it could be done through legal channels, and we see nothing in the contract itself which even points towards an election on his part. He did nothing more than to agree to qualify as executor, and as such to procure the necessary order for a conveyance of the land according to the terms of the sale made by his wife. True, when he made, the contract he had not been appointed by the court because the will had not then been probated, but the purchaser wanted immediate possession of the land, and the contract was so drawn that all interests would be fully protected in case of a failure on his part as executor to carry out its terms. Every act which he agreed to do was to be done as executor under the direction of the court, and every act which he did in closing the sale was so done. The deposit of the money in the bank under this arrangement was not a diversion of the fund. Davis could not make a deed which would be accepted by the grantee a. Homestead: proceeds. until an order of court therefor could be obtained, and that could not be done until sometime in October following. All that could be done then was to make a deposit which would be paid to Davis as executor when he could furnish a deed, and until that time he had no right to or claim upon the money. Furthermore, his only right to the money was as executor. The estate had not been settled, and he certainly could not appropriate any part thereof to his individual use until the debts and the expenses of administration were paid. We think there had been no diversion of the money deposited by Preston when the defendant filed his formal election as herein stated. This disposes of the points argued, and the judgment is apeibheb.