166 Iowa 129 | Iowa | 1914
On account of the numerous abstracts and amendments thereto, and several certifications of the record, the case is in considerable confusion, and we may have some
These orders show: First, that an affidavit for the publication of notice upon certain non-resident defendants was filed in time, and that the service upon them was complete at the
It appears that Joseph Dickey died testate July 16, 1893, seised of the land which is the subject of this action, consisting of fifty-eight acres, forty of which were the homestead of his wife and family. By his will he directed that all his just debts and funeral expenses be paid, and then gave his wife all his personal property, absolutely and unconditionally. He also gave his wife a life estate in all his real estate, and then provided that at her death all the real estate be sold and the proceeds divided into ten equal shares, and paid to certain named legatees, as follows:
‘A’ — To the children of my deceased son, Joseph Dickey, Jr., who may be living at that time, one share to be divided equally between them, share and share alike.
‘B’ — To the children of my deceased stepson, George W. Beauchamp, who may be living at that time, one share to be divided equally among them, share and share alike.
‘C’ — To my granddaughter, Ada Amanda Groom, one share.
‘D’ — And to each of my children, to wit, William A. Dickey, Lorenzo Dickey, Oscar A. Dickey, Mary E. Starlin, Louisa A. Croft, Amanda M. Campbell, one share or part.
This will was duly probated on November 22, 1894, but no executor or administrator seems to have been appointed until April 9, 1897, when W. W. Haskell was appointed as administrator with will annexed. On the day of this appointment, Lorin A. Dickey, the widow, made a mortgage, upon what she described as her undivided one-third interest in the land left by her deceased husband, to W. W. Haskell to secure a note in the sum of $75 due April 9, 1898. In the year 1900 action was brought by the then holder of the note, Laura C. Norris, to foreclose the said mortgage. Defense thereto was made by Mrs. Dickey, but after trial the case went against her, and her claimed interest in the land was sold on special execution to
Mrs. Dickey died intestate May 30, 1912, and no administrator was appointed of her estate. Before her death, and abont May 1, 1910, she became incompetent, and a gnardian was appointed for her and for her property. On April 12, 1912, one Cowan was appointed administrator de bonis non of the estate of Joseph Dickey. One ~W. A. Hoover filed a claim against the Dickey estate on December 15, 1897, in the sum of $250, with interest, and said claim was allowed by the administrator, Haskell, on December 15, 1897. On April 12th of the year 1905 Hoover induced Mrs. Dickey to make a mortgage upon her interest in her husband’s real estate to secure this note. In 1906 Hoover brought action to foreclose the mortgage, and was defeated by this court. See Hoover v. Dickey, 146 Iowa, 652.
One B. P. Anderson furnished a monument for Joseph Dickey, and he filed a claim against his estate on December 16, 1897, and, as we understand it, this claim was also allowed by the administrator within a short time after its filing, although the claim seems to have been lost, and there is no entry of its allowance. This claim was assigned to C. C. Orvis, and thereafter he took a note from Mrs. Dickey for the amount thereof, upon which some payments have been made, but he (Orvis) did not push the collection thereof because, as he said, the maker was a client of his, was very old, and some of the heirs asked him not to “push the note.” These latter facts present the situation of the respective appealing defendants. Norris is the only one of them who filed an answer in time, and the others, while not in default perhaps, because they appeared either personally or by counsel, filed no pleadings within time, and tendered no issues. The action was commenced by Geo. F. McCarty, who claimed to be the owner of an undivided one-third interest in the land, under a
Both plaintiff in his petition, and Norris in his answer, claimed that the widow of testator took an undivided one-third interest in the lands of the deceased; that she was in fact entitled to take both under the will and under the law; and that even if this be not true, as she did not make formal election to take under the will, she was entitled to and did take her distributive share, by conduct such as estops her from asserting to the contrary, because no election was entered upon the probate records.
Such, in brief, were the issues tendered by the pleadings, and, after a trial upon these issues, the trial court found that the widow had either elected to take a life estate under the will, or that she had estopped- herself from claiming to the contrary, and the claims of each and all of the respective parties who asserted any interest in or right to an undivided interest in the property, through the widow, were denied. The interests of each and all the heirs and devisees were fixed and determined, and the decree, among other things, provided:
That at the date of the death of Lorin A. Dickey, deceased, there was living the following heirs of Joseph Dickey who became entitled under his will to an interest in the real estate above described, to wit: Amanda M. Campbell, a daughter, who the court specifically finds was and is entitled to an undivided one-eighth (%) interest in said property. That the defendants,- Juantha (or Juhantha) Andrews and*134 Amanda Cease, are the only two living children of Joseph Dickey, Jr., deceased, and that each of said defendants is the owner of and entitled to an undivided one-sixteenth (1/16) interest in said land. That Emma Arnold, Joseph Croft, Alvador (or Alva J.) Croft, Wilbur Croft, Bird Croft, Fred Croft, and Bertha (or Bessie) Croft are the only surviving children of Louisa J. Croft, who was a daughter of the said Joseph Dickey, deceased, and that each of them is the owner of and entitled to an undivided one fifty-sixth (1/56) interest in said property. That the defendant, William Beadle, is the owner by assignment and purchase, of an undivided five twenty-fourths (5/24) interest in said real estate. That the defendant, J. A. Devitt, is the owner, by assignment and purchase, of an undivided five twenty-fourths (5/24) interest in said real estate. That the defendant, W. C. Burrell, is the owner, by assignment and purchase, of an undivided five twenty-fourths (5/24) interest in said real estate. That the mortgage of the defendant, D. A. Himes, in the sum of $-- is a first lien upon the interest of the said defendant, William Beadle, and that the mortgage of the defendant Charles Beadle, in the sum of $-, is a lien upon the interest of the said Beadle, subject only to the mortgage of the defendant, D. A. Himes. The court specifically finds that the claims of W. A. Hoover, Charles Norris, and B. P. Anderson, or C. C. Orvis, assignee, are not liens upon the real estate herein described, and that each and all of them are barred as claims against the estate of Joseph Dickey, deceased. The court specifically finds that W. R. Cowan, administrator de bonis non of the estate of Joseph Dickey, deceased, has no right, title, or interest in the real estate herein described as such administrator. The court specifically finds that the plaintiff, George F. McCarty, has no right, title, or interest in the real estate herein described.
Norris, Hoover, and Orvis attempted to appeal, but they did not direct their notices to or serve the same upon all the parties who were found to have an interest in the property.
Norris doubtless had the right of appeal, but he was bound to serve all the other parties, both plaintiffs and defendants, whose interests might be affected were the judgment reversed.
It is argued that they were not properly served with notice because the affidavit for publication was not filed in time. This apparent defect was cured by the trial court in term
There is no escape from the conclusion that, because of the appellants’ neglect to serve proper parties, the appeal cannot be considered, and it must therefore be, and it is — Dismissed.