88 Iowa 636 | Iowa | 1893
Section 2410 of the Code provides: “All claims filed and not expressly admitted in writing, signed by the executor with the approbation of the court, shall be considered as denied, without any pleading on behalf of the estate.” It is said in Scovil v. Fisher, 77 Iowa, 97: “The resistance of the defendant put in issue all matters upon which a defense to the claim could be based, usually set up by a general denial. It is not to be presumed that the defendant admitted plaintiff’s right to recover or the validity of his claim.” In Lamm v. Sooy, 79 Iowa, 597, in speaking of this provision of the statute, the court says: “The defendant not having filed any answer to either petition, it follows from this provision that each and every allegation of both of the plaintiff’s petitions was- denied, and thereby the burden was cast upon him to prove each material allegation.” The denial which the law interposes makes it necessary for the plaintiff to show that he had a valid claim against the estate of decedent — that something was due him. The denial goes to the entire claim.
It was the purpose of the law to protect estates against any but legitimate claims, and to that end the burden is cast upon the claimant to establish his claim. This can not be done by the plaintiff’s showing that he has carried out a contract which he had entered into
The plaintiff, as a witness, was asked if he had a contract in his possession or under his control between
The plaintiff was also asked what Exhibit B was. The same objection being made and overruled, he testified that it was a part of the specifications he built the house by; that they were the- ones he had in his possession. So far as is disclosed by this record, these specifications were a copy of those originally agreed upon by the parties, and, if so, the evidence was inadmissible.
The witness also testified as to the provisions and conditions of the contract which had been entered into
For the errors pointed out, the case is reversed.