11 Iowa 276 | Iowa | 1860
Without now determining, whether, under the statute, if a claim is filed within six months after the giving of notice by the administrator, but not finally allowed until the expiration of the time, it will come within the third class of claims provided for in section 1372 of the Code; we say without now determining this question, we are of the
II. It is no sufficient objection to the order, that it directs plaintiff’s claim to be paid fro raía. This portion of the order could well be rejected as surplusage and its legal effect and meaning remain the same. The legal duty of the administrators was, (treating the claim as of the third class,) to pay it as they paid other like claims. And though the order, at the time of the allowance, had been for its. payment, yet if the assets were not sufficient to pay all such claims in full, they would only be bound to a ratable payment. As we understand the duty of the court, it was simply to allow or disallow the claim, designating its class,
III. In this case we understand that the county court by the final one found that the administrators had sufficient in their hands to pay all of plaintiff’s claim; and it was therefore not required, as claimed by appellant, that a dividend should be struck. The finding itself, by its very terms, negatives the necessity and propriety of such a 'dividend. Whether this finding by the District Court was warranted upon the evidence submitted, we finally come to inquire.
IV. Upon this subject the record is exceedingly barren and confused, and we are constrained to the conclusion that sufficient is not shown to justify a judgment against the administrators and sureties for the full amount of plaintiff’s claim. We do not say that upon a final hearing they may not be liable, but only hold that from the proof presented there is not sufficient to warrant the conclusion that this claim, from the assets, could be paid in full. Some of the difficulties in the way will be suggested.
The whole amount of the assets is nowhere shown. Nor does it appear conclusively, that we have before us all the debts proven against the estate. Then again, the expenses of administration are not stated nor the charges of the last sickness and funeral of the deceased. These expenses and charges being paid, it was next the duty to pay the widow and minor children any allowance made by the court for their maintenance. After these, debts entitled to preference under the laws of the United States, and public rates and
We conclude, therefore, that the cause should be reversed and remanded to the District Court, with instructions to send the same to the county court, to ascertain the defendant’s liability upon the basis above stated. And to this end the county court will first’apply the assets to the expenses of administration; second, the charges of the last sickness and funeral expenses; third, any allowance made to the widow and minor children as provided in section 1371 of the Code; fourth, debts entitled to a preference under the laws of the United States; fifth, public rates and taxes; and sixth, claims filed within six months, including the claim of plaintiff. And if after satisfying the several demands entitled to preference over those of the sixth class as above classified, assets remain they are to be applied ratably, without reference to the fact that the administrators may have paid all of some of the claims of said sixth class, the said plaintiff to stand in all respects as if his claim had been proved, filed, allowed and recognized within the six months. After this, if assets remain?
Reversed and remanded.