— Edivin
When the claim was reached for trial both claimant and intervenors asked the court to adjudicate as law points under rule 105, Rules of Civil Procedure, applicability of the statute of limitations. Claimant also asked an adjudication that the temporary executor’s report and аlleged allowance of the claim create a prima facie case in favor of the claim. The court ruled the pleadings do not show on their face the claim was barred; also that “the allowance of said claim by the temporary executor is decreed to be prima facie evidence of its validity and justness.”
On the trial before court and jury, claimant offered testator’s will, the preliminary inheritance tax report and probate inventory, the report of the temporary executor, the order appointing him and some other court files in the estate which need not be mentioned. Claimant then rested. Intervenors then ex amined claimant briefly, evidently in support of their defense the claim had been paid, and they rested; Claimant then mоved for a directed verdict on the ground the temporary executor’s report made a prima facie case for him and there was no substantial evidence to overcome it. The motion was sustained, the claim allowed and the executor directed to pay it. Intervenors have appealed.
I. The first two assigned errors have to do with the defense of the statute оf limitations. Intervenors think the trial court ruled they could not interpose this defense and assign the ruling as error. He did not so rule. However, claimant contends —as he may without appealing — it was error not to rule that intervenors may not interpose such a defense and only the personal representative may do so. Since the order appealed from must be reversed on at leаst three other grounds and the case may be retried, \ve deem it our duty to say we disagree with claimant’s contention.
It is perhaps sufficient answer to the contention that after a hearing on intervenors’ petition for leave to intervene, at which the executor (who was claimant) and the temporary executor appeared, the court ordered that intervenors could intervene, file answer and contest the claim. No limitations were placed upon this right. It is not contended this order, which was not ex parte, was erroneous or that intervenors were not entitled to intervene and contest this claim.
However, we are not content to rest our conclusion solely on the ground just suggested. The residuary legatees are the real parties in interest in defеnse of this claim. They are equitable owners of substantially the entire estate of an estimated net value in excess of $330,000. Incidentally they are all charities to whom testator desired most of his estate to go. We cannot agree that because the temporary executor did not see fit to interpose the defense of the statute of limitations, these legatees may not dо so. There is nothing in .his report to suggest any consideration was given to his interposing such a defense. So far as shown he was not represented at the hearing on the claim and was not interested in it.
The contention claimant makes at this point is contrary
to our holding in In re Claim of Marjorie Blackman in the Estate of Cora Hunt, deceased,
We do not understand claimant contends that intervenors may not assert the defense of payment. We perceive no sound or logical reason why they may not also assert the bar of limitations.
Claimant does, argue that unless resort to the real estate left by decedent is necessary in order to pay claims against the estate, the decision of the personal representative “whether he should raise discretionary affirmative defenses is binding upon the beneficiaries.” It is true In re Estate of Baumhover,
In re Estate of Smith,
The Smith decision concludes its discussion of this point by explaining the error of the trial court there in holding that an heir cannot resist the allowance of a claim except for fraud or collusion, citing as authority In re Estate of Douglas,
The hearing which led to the order appealed from here was the initial hearing on the allowance of the claim. The only parties resisting the claim were the intervenors. No authority has come to our attention which would deny them the right to interpose the bar of limitations or, we may add, the defense of payment. Any othеr holding would be contrary to the spirit, if not the letter, of section 638.10, Code, 1962, which was in force when this case was tried. It provides, “Any person interested in the estate may attend upon the settlement of his [executor’s or administrator’s] accounts and contest the same.”
Code chapter 638, including the quoted section, was repealed by our new Iowa Probate Code, chapter 326, Laws Sixtiеth General Assembly, effective January 1, 1964. It may be noted section 122 of this chapter more clearly adopts the view we have expressed. It states, “The acts of the fiduciary without prior approval of court after notice, may be contested by any interested person at or before the entry of the order discharging the fiduciary.” Also section 432 'of chapter 326 provides that unless the court allows the claim of a personal representative, even though its allowance is recommended by a temporary administrator, it shall be disposed of as a contested claim.
II. Intervenors’ second assigned error is the alleged ruling the claim or part thereof was not barred by the statute of limitations. This is not what the court ruled. As stated, the ruling, prior to the trial, was that thе pleadings (which doubtless means the claim) do not show on their face the claim was barred. The statute relied upon is section 614.1(9), Code, 1962, which states actions founded on claims for wages must be brought within two years after their causes accrue, except when otherwise specially declared.
The claim alleges it is for services rendered decedent; ■ early
in 1955 decedent,
Intervenors rely principally on Buckley v. Deegan,
Claimant cites Cuthbertson v. Harter Post No. 839, V. F. W.,
The statute of limitations is an affirmative defense which intervenors not only must plead but prove by a preponderance of the evidence. Cuthbertson ease and citations at page 928 of 245 Iowa, page 87 of 65 N.W.2d; 54 C. J. S., Limitations of Actions, sections 354, 386; 34 Am. Jur., Limitation of Actions, sectiоns 428, 450.
We are not persuaded tbe court’s ruling on this point was error. Certainly tbe issue of tbe statute of limitations can be better determined after tbe evidence is beard than from tbe face of tbe claim itself. It is possible too that at tbe close of tbe evidence it may appear part, but not all, of tbe claim is barred —e.g., tbe part for alleged services at decedent’s rеquest prior to and because of Mrs. Plumb’s death in 1956.
III. Error is assigned in admitting in evidence the temporary executor’s report over intervenors’ objection of incompetent, irrelevant, immaterial, conclusions and opinions of its author, hearsay, not binding on intervenors and an invasion of tbe jury’s province. This assignment must be sustained. Tbe point is decided, adverse to tbe trial court’s ruling, in tbe Cora Hunt estаte case, supra,
Tbe Hunt executor’s report was a statement be believed tbe claim was fair and just and a recommendation it be allowed without disclosing the basis therefor. Here tbe report fills 17 pages of tbe record and states tbe grounds for tbe recommendation of allowance. In some detail it recites what claimant told tbe temporary executor as to bis claimed arrangements with decedent and what claimant said be did thereunder; what tbe farm tenants, former tenants and widow of a deceased tenant told him; bis conclusion as to the manner in which claimant kept books of account; contents оf income tax returns and bank statements; what the housekeeper and banker told him; tbe banker’s opinion the claim should be allowed; what other farm managers said as to their charge for farm management;
It is obvious tbe report consists largely of hearsay and, to a lesser extent, opinions and conclusions, to which tbe temporary executor could not testify in court. A statement objectionable as hearsay does not become competent by reducing it to writing. Rubin Bros. Butter & Egg Co. v. Larson,
Receiving the report in evidence was an invasion of the jury’s province to determine the ultimate fact whethеr the claim should be allowed. This is a mixed question of law and fact, not properly the subject of opinion testimony. Grismore v. Consolidated Products Co.,
The practical effect of admitting the report in evidence was to deprive intervenors of the valuable right to cross-examine the temporary executor as well as those interviewed by him whose declarations form much of thе basis for the report. We are cited to no authority which supports its admission. Of course we do not criticize the temporary executor for making a detailed report.
IY. What must be deemed intervenors’ principal assigned error is the ruling that the temporary executor’s report, without court approval, constituted a prima facie case for claimant. This assignment must also be sustained on the authority of the Cora Hunt estate opinion, supra,
We need not repeat what is said in the Hunt opinion on this point. No authority is citеd here that supports claimant’s view, accepted by the trial court, as to the effect of allowance of a claim by the personal representative, without court approval, except the inadvertent dictum in In re Estate of Nicholson,
Y. We also sustain the assignment it was error not to submit to the jury the defense of payment. We think there is substantial evidence to support this defense. We reach this conclusion even though the trial court’s view as to the effect of the temporary executor’s report were to be accepted.
The claim is for personal services over a period of five and one-half years performed for one abundantly able to pay for them at any time demand for payment had been made. No demand or request for payment wаs ever made although claimant and decedent lived in the same locality and, according to the claim, were in almost daily contact. It is claimed substantially all services were performed before claimant was appointed decedent’s guardian and all of them before the guardianship assets were transferred to himself as executor. Evidently the only claim appеllee made in the guardianship was for his services during the period thereof for which he received $400.
On March 31, 1960, a formal written contract apparently prepared by an attorney was made bеtween decedent and his housekeeper under which she was to be paid $99 per month and an additional $3000 at his death if she performed her part of the contract “and first party hereby instructs the executor of his estate to make prompt payment of said amount.” The agreement was witnessed by this claimant and another person. Claimant never had a written agreement with decеdent regarding his services. This agreement is evidence that decedent, then 95, five years after claimant alleges he was employed, was meticulous in his business methods.
The estate probate inventory, filed by claimant two and one-half months after decedent’s death, estimates total debts of $20,000. Since the claim in question here and that of the housekeeper (for the $3000) exceed this amount, the estimate apparently refers to these two claims and there were no other known debts. The inventory lists a checking account of $3000 and government bonds in excess of $56,000. The farms were unencumbered.
Our conclusion the issue of payment should have been submitted to the jury finds support in Baker v. Davis,
VI. Intervenors’ remaining contentions are it was error not to submit to the jury the reasonableness of the claim and to direct a verdict for the full amount thereof.
Of course it follows from Divisions IY and V hereof it was error to direct the verdict. Upon a retrial the burden will be upon claimant to prove his claim. In re Claim of Marjorie Blackman in the Estate of Cora Hunt, supra,
We will merely repeat what has been said before several times that in the absence of an admission by the adverse party it is not often that one who has the burden on an issue establishes his claim as a matter of law. Also that such a claim as this is not
necessarily
established because the evidence is not denied. Claimant’s evidence must still stand the test of credibility. Circumstances showing improbability, unreasonableness or inconsistency may be sufficient to raise a
conflict in the evidence. Roth v. Headlee, supra,