176 Iowa 106 | Iowa | 1915
I. The will in question purported to be executed in October, 1902. The testator died July 3, 1907. The will was filed July 13, 1907, and notice of such filing was.
“I give, devise and bequeath, all my property, both real and personal, after my just debts and funeral expenses have been paid, in trust, to M. H. Brinton, of Ellsworth, Hamilton County, Iowa, to be held and managed by the said M. IT. Brinton for the support and keeping of Joseph Shillinglaw and William Shillinglaw, my nephews, during their lifetime. After the death of both the above named, Joseph Shillinglaw and William Shillinglaw, I direct said trustee, M. H. Brinton, to sell and convey all my property and distribute the proceeds as follows:
“First, to Jennie (Shillinglaw) Claussen, my niece, the sum of $500 over and above her share as a legal heir. The balance to be divided among my legal heirs, except Allen Shillinglaw, a nephew, who after having been paid for his labor is to have only $100. ’ ’
“That in all cases where by the death of the party to be charged, the bringing of an action against his estate shall have been delayed beyond the period provided for by statute, the time within which action may be brought against his estate is hereby extended for six months from the date of the death of said decedent.”
The argument for appellants is that Brinton as trustee necessarily took the legal title of the Shillinglaw estate and that he was therefore a necessary party to an action to set aside the will. The terms of the statute do not reach the claim of the plaintiffs. In an action to set aside the will of Shillinglaw, Brinton was not “the party to be charged.” The action to be brought was not “against his (Brinton’s) estate.” The extension of time which the statute grants is to' actions which “may be brought against his (Brinton’s) estate.” Brinton’s estate has no manner of interest in this proceeding. Brinton’s executor would not even be a proper party to this proceeding. It appears-from the pleadings that Brinton was appointed executor of the will. It does not appear that he accepted his appointment as trustee. Indeed, the petition alleges that the “trust was not executed by the said Brinton in his lifetime.” We think it clear that the plaintiffs’ right of action to set aside the will was in no manner dependent upon the acceptance of the trust by Brinton; nor dependent upon the actual appointment of any trustee; nor dependent upon the appointment of an executor. There was no legal impediment to the commencement of this action before any appointment of either executor or trustee. When appointed, they were appropriate parties, but they were not essential to the' institution of the suit. This suit was actually begun in September, .1912, by serving notice upon the beneficiaries and