188 Iowa 734 | Iowa | 1920
“1st. J direct that my just debts and the expense of my last sickness and burial be paid.
‘‘2d. Subject to the foregoing, I give, devise and bequeath unto my beloved wife, Amanda Caroline Camp, all property, of whatsoever character or wheresoever situated, that I may own at the time of my death; subject only to the following provision: Tt is
This will was duly admitted to probate on the 16th day of February, 1910. Testator’s wife, Amanda Caroline Camp, was duly appointed executrix, and on her own motion published in the Guthrie County Times, a newspaper printed and published in said county, the following:
“Notice is hereby given that the undersigned was duly appointed and qualified as executrix of the estate of W. H. Camp, late of Guthrie County, Iowrn, deceased, on the 26th day of February A. D. 1910. All persons indebted to said estate are requested to make immediate payment to the undersigned; and those having claims against said estate will file the same duly verified with the clerk of the district court of said county for allowance. Dated May 2, 1911.”
Proof of the publication was made by the publisher of said paper, the first publication being on the 4th day of May, 1931, the second on the 11th day of May, 1911, and the third on the 18th day of May, 1911. No direction for the publication of this notice is shown, as required by Section 3304 of the Code of 1897.
Thereafter, Amanda Caroline Camp entered upon her duties as executrix of said will, and on the 6th day of October, 1915, her final report came on for hearing; and, upon a hearing, she was discharged from further duties as executrix.
The administrator of the estate of Amanda Caroline Camp, the administrator de bonis non of W. H. Camp, and the heirs at law of both Amanda and W. H., are parties to this suit, and joined issue with the plaintiff on his claim made; and, among other issues tendered, say that the claim was not filed* within one year after notice of the appointment of the executrix of the estate of W. H. Camp, and that the claim is now barred.
The cause was tried to a jury upon the issues tendered, and a verdict returned for the claimant. E. Y. Thomas, administrator de bonis non, with the will annexed, of the estate of W. H. Camp, alone appeals.
There was abundant evidencé to establish the contract relied upon. The evidence fully sustains the claim that the services required of claimant to be performed on his part were fully performed. No question is made on this appeal on either of these propositions. No question is made as to the amount allowed. No complaint is made of any action of the court during the trial, or the manner of its submission to the jury. The only contention here is that the undisputed evidence shows that plaintiff is not in a position to maintain this action, because his claim is barred by the statute of limitations; and this is predicated on the
The statute .invoked is Section 3349, Code, 1897, and it reads as follows:
“All claims of the fourth of the above classes, not filed and allowed, or if filed and notice thereof, as hereinbefore provided, is not served within twelve months from the giving of the notice aforesaid, will be barred * * * unless peculiar circumstances entitle the plaintiff to equitable relief.”
Claims of the fourth of the above classes, referred to in the statute, are debts not entitled to preference under the laws of the United States, public rates and taxes, and claims filed within six months after the first publication or posting of notice. The notice referred to in the statute is the notice required by Code Bection 3304, which provides:
“The executors or administrators first appointed and qualified for the settlement of the estate shall, within ten days after the receipt of their letters, publish such notice-of their appointment as the court or clerk may direct, which direction shall be endorsed upon the letters when issued.”
The real question, therefore, and the only question presented to us for consideration, is whether the claim is barred by the statute of limitations- — barred by that statute which limits the time within which claims may be filed and proved against an estate to twelve months from the giving of the notice of the appointment.
It will be noted that the claim was not due or payable until after the death of Mrs. Camp; that she did not die until the 1st day of January, 1917. The claim was filed on the 8th day of September, 1917. The notice of the ap
“Under a previous decision of this court, appellants must fail, in any event, on this proposition; for their contention that the claim was not filed in time, and no proper notice given, is an affirmative defense, to be proved by them, and it nowhere appears in the record that the court or the clerk ordered notice of the administratrix’s appointment to be given by publication. Without this order, service by publication, even if made, was of no validity; and, until proper notice of appointment is given, the statute as to the time of filing of claims does not begin to run.”
See, also, Ellyson v. Lord, 124 Iowa 125, 130.
We think the appellant has failed to make good on the only contention urged here for reversal, and the judgment of the district court is, therefore, — Affirmed.