
    Paul Lippert et al., Appellants, v. Henry Lippert et al. In re Estate of Lippert, Appellant, v. Lippert.
    1 ¡Executors: collecting assets: Liable in damages. An executor is not liable for damages to legatees for his failure to appraise and sell certain notes belonging to the estate, and to enforce a judgment against a debtor’s equity of redemption in real estate, in the absence of an affirmative showing that the estate has thereby sustained actual damage.
    2 ¡Failure to report: Penalty. The failure of an executor to file his first report until after seven months from the first publication of the notice of his appointment, and also to file his final report within the time fixed by order of court, will, in the absence of any showing of exoneration therefor, by the probate court, render him liable, after the reports have been filed, in an action by a devisee in the district court, to a forfeiture of $100 for each default, under Code, section 2482, providing that an executor failing to account, as required by law or by the court, shall, for every such failure, forfeit the sum of $100.
    3 Final report. Should not be approved when it appears that there is distribution to be made additional to what is reported.
    
      Appeal from Dubuque District Court. — IIon. I. L. Hustep, Judge.
    Tuesday, February 6, 1900.
    The defendant Henry Lippert is executor of the last will of Anna Marie Lippert, deceased. In'the first case the matters involved may be stated as follows: Plaintiffs are legatees under said will. The executor filed his final report, and, under order of court to make distribution, tendered to each of the plaintiffs 93 per cent, of the amount of the legacy ' bequeathed; • at the same time making a showing that these payments would exhaust the assets of the estate. This action was then brought. The first two counts of the petition claim forfeitures for the benefit of the estate because of the; failure ®f the executor to make reports as required by law. Count 3 makes claim for damages because of tbe failure of tbe ■executor to have certain promissory notes belonging to tbe estate appraised. In count 4 a claim is made for damages because tbe executor, who held a judgment rendered on a debt .secured by a second mortgage, did not order execution on it levied upon tbe debtor’s equity of redemption in real estate which was sold under tbe first mortgage. The petition was ■dismissed, and from this ruling plaintiffs appeal. After tbe foregoing matters were disposed of, tbe final report of tbe •executor was approved, and he was discharged, and tbe second proceeding brings that action of tbe trial court here for review.
    Reversed.
    
      'McCarthy & Kentine for appellants.
    No appearance for appellee.
   Waterman, J.

These two actions were submitted 'together, and may be disposed of in one opinion. There is .no evidence to sustain tbe claim for damages made in tbe •third and fourth counts of tbe petition. Tbe failure of tbe •executor to have certain promissory notes appraised would not warrant a judgment against him, unless it be made to appear that tbe estate was in some way injured thereby. We cannot assume that it was. No evidence was offered to show tbe probable value of tbe ■equity of redemption which it is said, in tbe fourth count, tbe executor should have bad sold. Tbe argument is made that there is a presumption that it would have sold for something, and therefore tbe court was in error, and its bolding should be reversed. We do not reverse judgments for a failure to award nominal damages, when it does not appear that -complainant was entitled to more. Harwood v. Lee, 85 Iowa, 622; Crawford v. Bergen, 91 Iowa, 675, and cases cited.

II. We have then to consider tbe claims for forfeitures -set up in tbe two first counts. It seems, -the executor failed do file his first report, as required by section 2469, Code 1873, after the expiration of six months, and. within seven months, from the first publication of notice of his appointment ; and fie also failed to file his final report within the time fixed by order of court. No action was taken,. however, upon these failures, until after the reports, had been filed. This proceeding was then begun, and the two-counts under consideration are founded upon section 2482,.. Code 1873, which is as follows: “Any executor failing to-account upon being" required to do so by the court, or as he-is required to- do by law, shall for every such failure forfeit one hundred (100) dollars to be recovered in a civil action on his bond for the benefit of the estate, by any one-interested therein.” This section imposes a penalty which accrues to the estate immediately upon the default of the-executor. It may be that the probate court, upon a proper-showing of excuse, even after default, could have exonerated' the executor; but this was not done, so far as the record here-shows. No matter of excuse, certainly, could be heard in the district court sitting for the trial of ordinary actions,, such as this. Moreover, except by implication from the fact, of the decision being in the executor’s favor, no excuse, even of this kind, is disclosed. The penalty having accrued, its. payment should have been enforced.

III. In the appeal of the second of these cases, the assignments of error may be stated thus: That the appellants,, as' legatees, have not been paid in full; that the executor-failed to have the promissory notes of which the estate consisted appraised; that he failed -to offer the notes for sale,, and did not sell the equity of redemption in the real estate, of which particulars are given in our statement of the pleadings ; and also that the legatees were not paid pro- rata, as-required by law. What we have said as to- the first case has-, in part a hearing here. As to the amount shown to he on’, hand, the jfinal report discloses that the executor has 'tendered', payment of the whole thereof to the legatee, and no evidence-was offered to show that the assets could have been made to* pay more. It is said that the executor still retains a judgment against George Lippert, which belongs to the estate. He reports this as worthless, and there is no evidence to contradict this fact. The result of our holding on the first casei, however, is to add two hundred dollars-'to the assets of the estate, and this sum has not been accounted for. As the executor still has funds to distribute, in addition to the amount reported, it is manifest that his report, as made,, should not have been approved. On both appeals, reversed.

Granger, O. L, not sitting.  