Conger v. Cook
| Decision Date | 23 April 1881 |
| Citation | 8 N.W. 782,56 Iowa 117 |
| Parties | CONGER v. COOK ET AL |
| Court | Iowa Supreme Court |
Appeal from Adair Circuit Court.
THE plaintiff, as administrator of the estate of Charles Wilshire, deceased, filed a petition in the Circuit Court of Adair county, praying for an order for the sale of real estate, averring, in substance, that the personal property is inadequate to pay the debts and expenses of the administration. The petition showed that the plaintiff was appointed administrator Dec. 12, 1878, and gave notice of his appointment in the same month. The petition was filed June 11, 1880. It showed that the deceased died intestate, leaving as his widow Ina M. Wilshire, now Ina M. Cook, and the defendant William Wilshire, as his only child. These persons are made defendants, as being the owners of the property sought to be sold. William Wilshire appeared and demurred to the petition. The demurrer was overruled, and he appeals.
AFFIRMED.
H. E Long and Charles S. Fogg, for appellant.
Ben. S Adams and McCaughan & Dabney, for appellee.
The petition was filed about one year and five months after completed publication of notice of administration. The defendant Wilshire demurred upon the ground that it appeared that the application was barred by lapse of time.
It is not claimed that there is any statute limiting the time of making an application for the sale of real estate, for the payment of claims, by an administrator, but it is contended that, on principle, the application ought to be denied unless made before the expiration of the time allowed by statute for establishing claims: that the statute allows one year for establishing claims, and the application was not made until that time had elapsed.
The plaintiff contends that, on principle, more time ought to be allowed for making an application to sell real estate for the payment of claims than is allowed for establishing claims because an application to sell real estate for the payment of claims cannot be made until after the claims have been established, and, indeed, not until after the personal property has been exhausted, or the balance necessary to be paid by the sale of real estate has been ascertained.
The defendant, in support of his theory of limitation, cites and relies upon McCrary v. Tasker, 41 Iowa 255 (260.) In that case Mr. Justice Day said: "We are disposed to hold that, as a general rule in this State, an application of the executor to sell real estate of the decedent for the payment of debts will not be sustained unless made within eighteen months from the time the executor gives notice of his appointment, unless the peculiar circumstances of the case are of such a character as to make it the duty of the court of equity to depart from this general rule, and that, under such circumstances, the application must be made within a reasonable time." Under the statute then in force the time allowed for establishing claims was eighteen months.
In that case the application was made more than thirteen years after the appointment of the executor, and more than seven years after he was discharged. The court thought the application was made too late, and it was accordingly denied.
The plaintiff in the case at bar does not question the correctness of the decision in denying the application, but he contends very strenuously that the court not only had no occasion to fix a definite time within which application, as a general rule, must be made, but even if it had, that the time fixed is too short, and that the rule adopted is not sustained by the authorities.
The case at bar is not such as to require us to review the correctness of the doctrine enunciated in that case farther than this: we are of the opinion that if the general rule is that the time for making an application to sell real estate for the payment of claims expires when the time expires for establishing claims, matters of excuse for delay may not only be shown, but may be set up in the petition by which the application is made. In the case at bar a matter of excuse is thus set up. It is averred that the value of real estate was depreciated, and...
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