Given, J.
i. estates of oia1msefíimiawírelief?14" mode of trial. I. These claims, not having been filed within six months after the first publication of notice ^le administrator’s appointment, became claims of the fourth class. Code, sec. 2420. Claims of that class, “not filed and proved wjthin'twelve months of the giving of the notice aforesaid, are forever barred, unless the claim is pending in the district or supreme court, unless *597peculiar circumstances entitle the claimant to equitable relief.” Code, sec. 2421. We understand appellee’s position to be that claims presented for allowance after twelve months, because of peculiar circumstances entitling the claimant to equitable relief, are of equitable cognizance. Clearly, it is for a court of equity to determine whether the peculiar circumstances alleged and proven entitle the claimant to equitable relief ; that is, whether the circumstances are such as that, in, equity, the bar of the statute should be removed.
Section 2411, Code, provides that, if the claim is not admitted, the court may hear and allow the same, or may submit it to a jury ; and on such hearing, unless otherwise provided, all provisions of the law applicable to an ordinary proceeding shall apply. Issues of fact, in an action in an ordinary proceeding, must be tried by a jury, unless the same is waived by the parties. Code, sec. 2740. It is provided in section 2410that “all claims filed and not expressly admitted in writing, signed by the executor, with the approbation of the court, shall be considered as denied, without any pleading on behalf of the estate.” The defendant not having filed any answer to either petition, it follows from this provision that each and every allegation of both of the plaintiff’s petitions was denied, and thereby the burden was cast upon him to prove each material allegation. Appellee’s contention is that there was no issue submitted to the trial court except as to whether the claims were barred or not. Surely, other issues were joined, whether considered or not. The only facts admitted on the trial were that Sooy had been administrator since the seventh of August, 1884; that the note introduced in evidence in the first case is the original one filed in this case against M. Langton, deceased, and the same upon which judgment was rendered against Topping. There was no admission that the deceased had executed the note with Topping, or that he had executed the guaranties on the other six notes, or that the same were unpaid. In short, none other of the allegations of the *598petition were admitted. It is said that the administrator admitted in his report that the deceased sustained the relations alleged to these notes. That, at most, was but evidence ; but we do not think his report will bear such construction. In reporting claims filed against the estate, he states : “X. Lamm, on guaranty note, $839.06. X. Lamm, on security note, $179.52. Administrator has not sufficient information to pass upon, as yet.” This is no admission, but a statement of the alleged character of the claims filed.
Standing thus, the first 'issue to be determined was whether the circumstances proven were such as, in equity, should remove the bar of the statute, and, if so, then whether the claimant was entitled to an allowance of the claims, or any part thereof. The latter are clearly issues of fact; tried by ordinary proceeding, and hence “must be tried by jury, unless the same is waived.” The provisions of section 2421, Code, were not intended to deprive the parties of a trial by jury when otherwise they would be entitled thereto. Our conclusion is that in such cases the court should hear and determine whether the circumstances are such as to entitle the claimant to equitable relief as against the bar of the statute ; and, if so, then that the case be disposed of the same as other claims. See Ingham v. Dudley, 60 Iowa, 22.
2_. lielated awe“i^iie^ult" II. The issues as to the plaintiff ’s right to equitable relief against the bar of the statute were fully heard, and fairly disposed of. The circumstances aUeS’e(l and established as grounds for equitable relief in the first case are that the deceased was surety on the note. The plaintiff proceeded, with all possible dispatch, to make collections, as far as he could, from the principal; and, that failing, he filed his petition herein as soon as he knew that the, claims had been disallowed. In the other case, it is sought to charge the estate because of the deceased having guarantied the six notes, the last of which is not due, according to its face. Appellee states that, under a provision of the mortgage, he declared the whole debt *599due, and proceeded to the collection thereof against the maker of the notes, realizing, by foreclosure and sale, one thousand dollars in May, 1885, and that he did not prove his claim against the estate for the balance, for the reason that he did not know until August, 1887, that it had been disallowed. Mr. Wicks testifies that Mr. Sooy was demanding that the money should be made from Topping before the estate should be compelled to pay. This is denied by Mr. Sooy, but it was certainly very natural, under the circumstances, that he should desire that the collections should be made from the principal, as far as possible ; and such seems to have been the effort and purpose of the plaintiff. In Johnston v. Johnston, 36 Iowa, 608, it was said : ‘ ‘ Each case must be determined upon its own peculiar circumstances. * * ‘A most controlling consideration is that the estate remains unsettled. The assets have not been distributed, and had not when this claim was filed. That equality which is equity dictates, as a rule, that the assets of an estate should be paid to creditors in proportion to their demands, and when the estate remains unsettled all should be paid, if there are sufficient means, and, if not, then pro rata, unless there exists some legal difficulty, or unless to so order would work injustice to others having higher or equal claims upon the funds.’ ” In view of the nature of the claims and all the circumstances, we are of the opinion that the claimant is, in equity, entitled to be relieved against the bar of the statute, and that, in so far as the judgment of the district court so finds, it should be affirmed. Our opinion is that the appellant was entitled to a trial by jury upon the issue joined by operation of law, as to the validity of claims, and that the court erred in denying that right. The order and judgment of the district court is, therefore, affirmed as to the finding that the claims are not barred by the statute, and is reversed in so far as it finds that said claims should be allowed against the estate. The case will be remanded for further proceedings in accordance with this opinion.
Reversed in part ; aeeirmed in part.