Pitkin v. Peet

96 Iowa 748 | Iowa | 1895

Robinson J.

1 The appellee asks that the abstract be stricken from the files, -on the ground that it does not show the name of the judge who presided on the trial in the district court. Section 117 of the rules of this court, adopted December 16, 1886, requires that the 'abstract in each case appealed to this court “be so prepared as to show the name of the judge who presided at the trial.” Under this rule, it is the customary and approved’ practice to print the name of the trial judge on the first page of the abstract, immediately following the statement in regard to the court from which the appeal is taken, although this is not in terms required. In Kissinger v Council Bluffs, 72 Iowa, 471 (34 N. W. Rep. 215), the decision of the cause was deferred until the rule should be complied with, and in a proper case we might adopt other measures to secure the observance of the rule. In this case, the name of the trial judge does not appear on the first page of the abstract, but it is shown in it in connection with the decree, and it is also shown on the first page of each of several printed papers which 'have been filed in the case. The purpose of' the rule, therefore, has been fully accomplished, and the motion to strike the abstract will be denied.

2 II. The appellee asks that the evidence be stricken from the abstract, and tlhat the -decree be affirmed, on the grounds that the abstract does not purport to contain all the evidence offered during the trial; that it does not show what evidence was offered during the trial, nor that it was duly made of record. The decree-from which the appeal is taken contains a recital to the effect that all the record and all the evidence in the case were considered in entering the decree, and were made a part of the record, and thirty days were allowed in Which to settle a bill of exceptions. The object of these provisions is not apparent, but we are of the opinion that they are immaterial, for the reason that the decree shows affirmatively that 'it was rendered on the motion of the plaintiff on account of the procedendo, and that it was designed to be in accordance with the opinion of this court filed on rehearing. In such a ease, we take notice of our decision, and of the record on wihich it is founded. Those show that the case was tried here anew, and that, in the absence of an application for a new 'trial, or -other ground for further action to determine the merits -of the case, the district court had no duty to perform-excepting to render a decree as required by the procedendo. Austin v. Wilson, 57 Iowa, 586 (11 N. W. Rep. 8). See also Bank v. Radtke, 92 Iowa, 207 (60 N. W. Rep. 615). The record submitted to us fully justifies -the conclusion that ¡nothing else was-attempted, and the motion to strike and affirm is overruled.

3 III. “The decree from which the first appeal was taken was rendered on the first day of March, 1890, and contains the following; “The court construes -the ante-nuptial contract and will set forth in plaintiff’s petition, as giving to the defendant. Matilda Peet no distributive share in any property of the estate of said James M. Peet, deceased, and as excluding her from any such distributive share; that under said contract and will, said defendant Matilda Peet is entitled to receive only the interest on $3,000 during her natural life, while she remains the widow of the said J. M. Peet, and no more, and that said interest on said sum of $3,000 is to be paid to her from time to time as she demands it, by the defendant William G. Peet individually, and said William G. Peet is charged personally with the payment of said interest to sa.id Matilda Peet; that said defendant Matilda Peet, is not entitled to any distributive share in the personal property of said estate of J. M. Peet, deceased; that the plaintiff, Ora D. Pitkin, is entitled to the legacy of $9,888, as provided in said will, the same to be paid to her by William G. Peet, executor of said estate, out of the personal property of said estate, and as to whether the said sum should bear interest the court does not now determine.” It was ■held by this court, in effect, that the decision was erroneous in denying to the widow a distributive share in the personal estate ■of her deceased husband, and in making William G. Peet, personally liable for the payment to the widow of the interest on the sum of three thousand dollars, to which she was entitled. It was ■also determined that the appeal of the plaintiff had been abandoned. Other questions were also decided, but they are not of importance on this appeal. In October, 1893, the district court rendered the decree which is now in controversy. That contains the following: “Now, to-wit, on this sixth day of October, 1893, this cause coming on for hearing in accordance with the procedendo and opinion of the supreme court of Iowa, and thereupon it is ordered, adjudged, and decreed by this court that the judgment and decree rendered by this court in this ease on March 20, 1890, and recorded in Record I of decrees of this court, on pages 31 Ef and 316, be, and the same is herebv, modified in accordance with the decision and opinion of the supreme court of Iowa heretofore rendered in this esse as follows, viz.: The court construes the ■ante-nuptial contract and will set forth- -in -plaintiff’s petition as not preventing the defendant Matilda Peet from asserting her claim to her distributive share of the personal property of the estate of James M. Peet, deceased, and -that said Matilda Peet is entitled to her -distributive shai’e of said personal property, as the widow of the said James M, Peet, deceased, the same as if no -ante-nuptial contract had been made; that said Matilda Peet is entitled to -receive the interest on only $3,000 under said ante-nuptial contract and will, and is to receive the said interest during her natural life, while she remains the widow of the said James M. Peet, and no more, and to receive said interest from time to time as she demands it; that said plaintiff, Ora D. Pitkin, is entitled to the legacy -of $9,888, as provided in said will, and as to -whether the said sum should bear interest the court does not now 'determine; that said interest on said sum of $3,000, payable to Matilda Peet, and said legacy of $9,888, payable to said Ora D. Pitkin, are charges upon all of said property of said estate, and are to be paid by the executors of said estate out of the property of said estate; that said interest and said legacy are to be paid out of the property of the said estate, after the payment of debts against said estate, before said defendant William G. Peet receives anything under tne will, and that said William G. Peet, as legatee under said will, takes all of the property devised and bequeathed to him thereby, charged with the payment of said interest and legacy, all of which is ordered, adjudged, and decreed by the court.” The appellant complains of so much of the decree as relates to the interest of the plaintiff in the estate, and especially that part which made the 'legacy to her a charge upon all of the property of the estate, to be paid therefrom before the appellant should receive anything under the will. The appellee contends that the portion of the decree objected to is authorized by the first opinion, filed on a former appeal, as found in 50 N. W. Rep. 282. But, when the rehearing was ordered, that opinion was suspended, and as it was not adhered to on the final disposition of the cause on that appeal, it ceased to have any effect, and was fully superseded by the opinion afterwards filed. That ■adhered to the conclusion of the first opinion in regard to the personal liability of William G. Peet for the interest money to which the widow should be entitled, but did not otherwise adopt the opinion. The statements which It contained, and upon which the plaintiff relies, to the effect that the son was a residuary legatee, and that the bequests to the widow and to the plaintiff should be paid before the son should receive anything, were, therefore, without effect, and gave the district court no authority to render that part of the decree in question. The plaintiff had abandoned her appeal, and was not asking further relief, and this court made no attempt to disturb the decree so far as it related to her. That part of it provided for the payment of her legacy out of the personal property of the estate. She knew that the widow was demanding a share of that property, and must be charged with a knowledge of her rights to it; but, notwithstanding that -fact, the plaintiff failed to prosecute her appeal, and thus made the original decree final as to herself. We conclude that the action of the district court, had in October, 1893, in making the legacy to her a charge upon all the property of the estate, and requiring its payment from such property before William G. Peet should receive anything under the will, was erroneous, and it is reversed.

No complaint is made of the provisions of the second decree in favor of the widow, and her rights are not involved in this appeal. —Reversed.