Hazlett v. Burge

22 Iowa 531 | Iowa | 1867

Dillon, J.

It is stated in argument, that the petition was framed with the understanding that the proceeding would be amicable, and that all parties in interest would consent to the relief asked. It falls out, however, that this is not the case, and a demurrer to the petition presents the question whether the plaintiff has made a case entitling him to relief.

1. Executor and administrator: contract of administrator. It is obvious that the main, if not only design of the petition, was to have a specific execution of the alleged contract with the administrator, whereby . . . , . plaintiff: was to receive a parcel oí land m satisfaction oí ins claim against the estate. _ _ , , ° That the administrator had no power to make such a contract is too plain for discussion, and that he had such power is not contended for in the appellant’s argument. He cannot bind the heirs by any agreement to dispose of land in payment of claims against the estate. The heirs object, and, lienee, as against them, the plaintiff cannot have a specific execution of the alleged contract with the administrator. The plaintiff also asked general relief.

2. _ barred claim: equitable relief refused. Notwithstanding an estate may be closed, a creditor may have an equity to have the matter re-opened and his claim allowed. The right to such relief depeuds upon various cii’cunistances, such as absence 0f inexcusable neglect on the plaintiff’s part, the solvency of the estate, etc., etc. UpouExamining the petition we do not see enough averred to entitle the plaintiff to re-open the administration, or to call on the heirs to refund or contribute out of their inheritance, to pay his claim. Plaintiff’s claim was not allowed, and could not be, without the approbation of the county judge. Until this was done, the plaintiff had no established claim. No facts are stated which sufficiently excuse plaintiff from the duty of securing an allowance of his claim. Nor do the facts stated, negative negligence on the plaintiff’s part for not moving in the matter for nearly four years, and until after the estate was settled. It is possible that the knowledge and conduct of the administrator and heirs, and the situation of the estate, may he such as to entitle the plaintiff to relief in some direction. In affirming the ruling of the court on the petition as it stands, we also order the cause to be remanded with leave to plaintiff to amend his petition if he is so advised.

Affirmed.