61 Iowa 401 | Iowa | 1883
But in our opinion there is nothing in the order made of which the plaintiff can properly complain. The precise amount to which the plantiff is entitled, if anything, cannot be ascertained until completed administration and final settlement of the executor’s accounts. It can hardly be said, indeed, to be entirely certain that the personal estate will not be wholly exhausted in the payment of debts and the expenses of administration. This, it is true, seems highly improbable. The year allowed for filing claims has long since expired, and they amount to much less than the personal estate; but it is not certain that other claims may not be made against the estate under circumstances which will entitle' the claimants to equitable relief. In refusing, therefore, to order the payment of more than $500, we think that the court did not err.
II. ' The plaintiff in her petition prayed for an allowance of six per cent interest. The court made no order in respect to interest, and the plaintiff assigns its failure to do so as error. The order made was doubtless based upon the theory that the defendant could safely pay $500 irrespective of the question of interest. In this we think that there was nothing of which the plaintiff can properly complain. If she is entitled to interest upon her distributive share, it-will not be lost to her by reason of the order, but will enhance her balance. There was, indeed, no ground for computing interest on the $500, under the circumstances under which it was allowed. And it could not be computed on the balance, because that was unknown. The question, then, as to. whether the plaintiff was entitled to interest was in some sense an abstract one, and was properly reserved, we think, to be determined when a computation of interest, if any, was to be made.
It is not shown to our satisfaction that the defendant had not at that time filed all the reports which could properly be required of him under the circumstances.
. But, in our opinion, such question was not so drawn in issue as to justify us in holding that there was an adjudication upon it. Possibly, if the defendant had set up, as the sole reason why the plaintiff was not entitled to the property claimed to be exempt, and not entitled to the allowance for temporary support, that the testator had disposed of all his personal property by will, and the court had held against the plaintiff ujion such issue, however erroneously, she would not only be concluded in respect to the precise property which she was seeking to obtain, but it might follow, as a necessary incident, that the will, which, according to this ruling, had the effect to divest her of such property, had also the effect to divest her of her distributive share. But the defendant set up other defenses, as that the property claimed to be exempt was not exempt, because the testator was not the head of a family; and that the allowance should be denied her, because it was not necessary, as the plaintiff had abundant property of her .own. These defenses, if established, were good. The defense of the will was not good. Code, section 2322; Davis’ Case, 36 Iowa, 30. Ve will not, for the purpose of finding a prior adjudication, presume that the court made an erroneous ruling, in. the absence of all evidence tending to show that'it did. We think that the plea of prior adjudication is not sustained. .
It seems not improbable tbat sbe was ignorant of her rights, but we see nothing in her conduct which we think should estop her. On hoth appeals, we think that the order of the circuit court must he
Affirmed.