178 Iowa 517 | Iowa | 1916
“It is hereby ordered and adjudged by the court that said claim of the said J. T. Norris, amounting to $408.31, with interest at six per cent per annum from this day, is hereby allowed, established and approved as a claim of the ........class, against the estate of the said L. B. Gray, deceased. The said W. L. Smith, administrator of- said estate, is further ordered and directed to commence an action in the district court of Polk County, Iowa, to subject the land described in his said report to the payment of. said claim and interest and costs and the costs of this administration, and to prosecute said action to decree and sell said land, or so much thereof as may be necessary to pay said claim and interest and costs and the costs of this administration, and to report to this court from time to time his doings in the premises. Chas. A. Dudley,
“Judge of the Ninth Judicial District of the State of Iowa.’’
A petition in equity to so subject the land was filed in the district court of Polk County on July 29, 1915, the same having been verified, on July 27th, by Smith.,
On August 10th, the surviving widow appeared, and filed a motion to set aside the allowance of the Norris claim, and the entire order of the judge, made on July 29th. In this motion, she showed that deceased left a will, which had been duly admitted to probate in Cook County, Illinois; that she was the sole and only legatee under the will; that the estate had been closed and all matters adjusted prior to the time
Tt is claimed for appellee that the administrator’s report of July 29th, 1915, was never filed or entered of record, either in the probate or district court' of Polk County, and that neither the original nor a copy is on file there now, or had ever been filed. It is also shown that, on August 6, 1915, the administrator, Smith, filed an inventory, in which he stated that deceased left no personal property and no real estate, save that which he, the administrator, believed he could subject to the payment of claims against the estate.
It will be observed that practically all the orders in this estate, save the last, setting part of the previous orders aside, were made on July 29, 1915; and it should also be noted that the motion to set aside these orders, or some of them, was made at the same term of court as the original orders, and that they were made in probate, which court is always open, and that they were, each and all, save, perhaps, the allow
Both sides, in argument, make wide departures from the record, and indulge in statements pro and con which we cannot and should not consider. The only question in the case is whether or not, under the record before us, the trial court erred in setting aside the allowance of the Norris claim by the administrator, and the approval thereof on the same day by the court on an ex parte showing. We arc constrained to hold that there was no error. While, for some purposes, the allowance of a claim by an administrator, and an approval thereof by the judge, constitutes a judgment, it is not, until final settlement, such a judgment as that it cannot be reviewed, especially where, as here, the motion to set aside the allowance is at the same term, and within a few Aveeks of the time, the original order was made. Necessarily, a Avide discretion is vested in the probate court in such matters, especially where the original approval is of an allowance made by an administrator selected by the clamiant himself, and it does not appear that any testimony was.taken, either by the administrator or by the court. Upon a substantial objection and sIioav of defense to the claim, such as was here made, it became the duty of the court to set aside the alloAVance, in-order that a fair hearing be had upon the claim.
It is hardly necessary to cite authorities in support of these propositions. Either because of the broad powers of the court, under Section 243 of the Code, or the inherent power of the court to modify and change its conclusions during a term of court, or by reason of the provisions of Section 3399 of the Code, there can be no doAAbt of the power
“Any person interested in the estate may attend upon the settlement of his accounts and contest the same. Accounts settled in the absence of any person adversely interested, and without notice to him, may be opened within three months on hiá application. ’ ’
If authorities be needed, we cite a few in support of our conclusion: Van Aken v. Welch, 80 Iowa 114; Ordway v. Phelps, 45 Iowa 279; Willett v. Malli, 65 Iowa 675; Smith v. Shawhan, 37 Iowa 533; In re Estate of Davenport, 85 Iowa 293; Dorris v. Miller, 105 Iowa 564; In re Estate of Douglas, 140 Iowa 603; Rabbett v. Connolly, 153 Iowa 607; McDermott v. McDermott, 138 Iowa 351.
Some of the cases are directly in point. We shall not quote from them, as it would serve no useful purpose. There never was a final hearing of the claim, under Sections 3340 and 3341, Code, 1897.
Appellees’ motion to strike thé reply brief of appellant is overruled. The trial court did not err in sustaining the motion, and its orders are — Affirmed.