151 Iowa 468 | Iowa | 1911
David Mullinnix died intestate on the 29th day of November, 1909, seised of the real estate in controversy, which consists of fifty-two and one-half acres of land situate in Keokuk county, Iowa. Geo. P. Mullinnix, a son, was appointed administrator of his estate, and duly qualified as such. Certain claims amounting to approximately $147 were filed against the estate and allowed by the administrator, and, upon application made to the probate court, the said administrator was authorized and directed to purchase a monument at a cost not to exceed $150 to mark the grave of the deceased. Pursuant to this latter order, the administrator contracted for a monument, agreeing to pay therefor the sum of $115. The personal property of the deceased was all exhausted in paying the expenses of the last illness and funeral expenses, save the sum of $49.81. On the 3d day of February, 1910, the administrator filed his application in due form to sell the real estate of which the intestate died seised, making all the heirs of the deceased parties defendant thereto. Upon presentation of this application to the district judge, an order was made directing that service of notice thereof be given by personal service on all parties interested at least five days prior' to February 25, 1910, and that, in case the residence of any interested party is unknown, service be had by posting one written notice at the front door of the courtroom at least five days prior to the said 25th day of February, at which time it was ordered that the application for authority to sell be heard. Most of the defendants accepted service of the notice, but it. was personally served upon the defendant and appellant, Elizabeth Brown on the 8th day of Eebruary, proof thereof being filed on .the 17th of that month. Anna O. Convey, one of
Many propositions are relied upon for a reversal, and to such as are deemed controlling we shall now turn our attention. It is contended for appellant that the order should not have been made for the reason that forty acres of the land was the homestead of the deceased at the time of his death. A careful examination of the record shows that this claim is without support in the testimony. We shall not set out the evidence upon which we base our conclusion, for to do so would serve no useful purpose.
Of course, partition suits may be brought before the time has expired for the filing of claims against the estate of one deceased, but the more orderly procedure is to defer such actions and allow the matters to proceed in prohate, giving to the administrator the right and requiring of him the duty of selling the real estate when necessary to pay the debts of the estate. Counsel seem to rely upon Hawk v. Day, 148 Iowa, 47, in support of their proposition that the whole matter should have been settled in the partition suit, hut this case does not support their contention in any particular. In Thomas v. Thomas, 73 Iowa, 657, it is said: “It is plain that the lands can not be partitioned subject to the claims of the creditors of the estate, for it can not be determined just what lands, after the payment of debts, will be owned by the estate, or will descend to the heirs. -The creditors can not be subjected to delays or impeded in the enforcement of their claims against the lands of the estate. So the law will not permit the ,vain thing to be done of partitioning lands when it can not be determined what interest the heirs have in them, nor just what lands are subject to partition.” The same rule was announced in Snyder v. Snyder, 75 Iowa, 255, wherein was said: “Now, it is true a partition of lands should not be ordered until it is determined that the personal estate is sufficient to pay the debts. Thomas v. Thomas, 73 Iowa, 657. But it is not a question of jurisdiction. An action may be commenced, and, if it does not appear at the time partition is made that it will not be necessary to resort to the real estate to pay the debts, the decree partitioning the lands ought not to be disturbed,”
The pendency of the partition proceedings was therefore no reason for abating the application to sell the real estate for the payment of debts.
We discover no reason for disturbing the order of the trial court, and it must be, and it is, affirmed.