Ashing's Estate, In re

• Decision Date: 16 December 1958
• Docket Number: No. 49597,49597
• Citation: Ashing's Estate, In re, 93 N.W.2d 587, 250 Iowa 259 (Iowa 1958)
• Parties: In the Matter of the ESTATE of Tobitha ASHING, Deceased. STATE BOARD OF SOCIAL WELFARE, State of Iowa, Appellant, v. Charles M. MANLY II as Administrator of the Estate of Tobitha Ashing, Deceased, Appellee.
• Court: Iowa Supreme Court

Page 587

93 N.W.2d 587

250 Iowa 259

In the Matter of the ESTATE of Tobitha ASHING, Deceased STATE BOARD OF SOCIAL WELFARE, State of Iowa, Appellant, v. Charles M. MANLY II as Administrator of the Estate of Tobitha Ashing, Deceased, Appellee.

No. 49597.

Supreme Court of Iowa.

Dec. 16, 1958.

Norman A. Erbe, Atty. Gen., and Frank D. Bianco, Asst. Atty. Gen., for appellant.

John Paul Jones and W. C. Hoffmann, Des Moines, for appellee.

LARSON, Justice.

The State Board of Social Welfare brought these proceedings in probate to set aside an order closing the estate of Tobitha Ashing, deceased, and to reopen for the purpose of considering appellant's claim filed after the expiration of the six-month period for filing claims under Section 635.68, Code 1954, I.C.A. The trial court denied the application and the Board appeals.

The facts as disclosed by the record are not in dispute. The State Board of Social Welfare, under Chapter 249 of the Code, I.C.A. granted and paid old age assistance to Tobitha Ashing from February 1, 1936, to and including April 1, 1946, in the sum of $2,809.20. Other funds were then available to her and the allowance was cancelled. She died on or about November 17, 1956, and due notice of the appointment was first published under date of November 22, 1956. The administrator, relatively a newcomer in the vicinity, although having acted as her guardian for some seven or eight years, denied any actual knowledge of the old age assistance previously furnished, until he received a letter from the department in November, 1957, almost a year after the estate was opened and about three months after it had been closed. As the ward was deaf and dumb, the guardian could only communicate with her through a sister. This was seldom, and then at a nursing home where Tobitha Ashing was being cared for prior to her death.

On May 15, 1957, an auditor for the social welfare department learned of her death and that her estate was then open. He immediately wrote a letter to the state social welfare office in Des Moines informing them of his discovery. Although the remaining time was obviously short in which to file a claim, the matter did not receive special handling. The department prepared a claim which was sent in the usual manner to the county social welfare worker at Grinnell, Iowa, some 22 miles from the county seat. It arrived on her desk on the 22nd day of May, the last day for filing the claim in the estate. Instead of driving to the court house in Montezuma, Iowa, to file the claim, she sent it by mail to the clerk of the court at the county seat. It arrived on the 23rd day of May, 1957, and was marked filed on that date.

In the meantime, on the 22nd day of May, the administrator, being in Montezuma, had examined the file, found no outstanding claims, and had taken the file back to his office in Grinnell for the purpose of preparing his final report. He testified that he did not re-examine the docket for possible claims filed after May 22, 1957.

On August 9, 1957, Mr. Manly, the administrator, filed his final report showing a balance on hand of $2,863.53. Pursuant to the required notices to 'all other interested persons', as shown by the file in his office, the final report was presented to and approved by the court on August 23, 1957. The undistributed cash was paid to Ethel N. Patty, a niece and only heir-at-law of the deceased. No notice was served upon the social welfare department. It was unaware that the estate was closed until shortly before commencing this action in November, 1957. With the exeception of filing the claim on May 23rd, it had made no effort to have the claim considered or to call the matter to the attention of the administrator.

The trial court denied the application to reopen, and the Board appealed.

The sole question of law presented by this appeal is, did the trial court err in overruling the application or, in effect, in dismissing its petition for the establishment of its claim and for an accounting?

Appellant contends that its claim was timely filed, that it was illegally deprived of notice of the closing of the estate, that its claim was illegally given no consideration, and that it had shown peculiar circumstances which would permit a reopening of the estate for the purpose of considering that claim.

The crux of this controversy is whether the appellant carried its burden to prove due diligence in filing its claim, and had not been negligent in connection with the failure to file within the statutory time. The trial court apparently found that it failed on both of these issues, and we agree.

I. We do not agree with appellant that this action is triable de novo. The matter was tried in probate, and where so tried, the action is at law even though some equitable relief is asked. If there is substantial evidence to sustain a finding that appellant was not diligent, this court is bound by that finding by the trial court. Rindfleisch v. Mundt Estate, 247 Iowa 1124, 1130, 77 N.W.2d 643, and many cases cited therein; Federal Land Bank of Omaha v. Bonnett, 226 Iowa 112, 123, 284 N.W. 97. While it is true there were no specific findings of fact and conclusions of law filed in this matter, this case is like the Rindfleisch case in that it is obvious the court found a lack of due diligence in filing the claim, neglect in prosecuting its claim subsequent to discovery that the estate was open, and that there was no misconduct on the part of the administrator which would relieve appellant from its obligation. Unless the record then fails to disclose substantial evidence to support these findings, the trial court's action in denying appellant's application must stand.

The facts as disclosed by the record before us are simple. The auditor for the social welfare department discovered the open estate six full days before the expiration of the six-month statutory period expired. He did not contact the administrator. He did not call the office in Des Moines. He wrote a letter to the Des Moines office on May 15, 1957, and it arrived on the 16th. There it received no special handling. Although Saturday and Sunday intervened, yet it was not until May 21st that the claim was executed and sent by mail, not to the clerk of the court at the county seat in Montezuma, Iowa, but to the social welfare worker in Grinnell, Iowa. It arrived on the 22nd of May, the last day for filing a claim in this estate....