Corbin v. McAllister (In re Brigham's Estate)

• Decision Date: 08 May 1909
• Citation: 120 N.W. 1054,144 Iowa 71
• Parties: IN RE BRIGHAM'S ESTATE. CORBIN v. MCALLISTER ET AL.
• Court: Iowa Supreme Court

144 Iowa 71

120 N.W. 1054

IN RE BRIGHAM'S ESTATE.

CORBIN

v.MCALLISTER ET AL.

Supreme Court of Iowa.

May 8, 1909.

Appeal from District Court, Carroll County; F. M. Powers, Judge.

L. P. Brigham, a resident of Carroll county, died November 3, 1892, and in June following J. Brunnier was appointed administrator of his estate. In August, 1895, Brunnier reported to the court that no claims had been filed against him as administrator and no property had come into his hands, and he was discharged. In February, 1897, on application of W. L. Culbertson, based on alleged discovery of assets belonging to deceased, R. E. Corbin was appointed administrator of the estate, and a claim of Culbertson amounting to $4,712.81 was allowed by the administrator, as were also two other claims, one for $125.98 and the other for $128.82. Suit was begun by the administrator on September 9, 1906, more than nine years after his appointment and fourteen years after the deceased had departed this life, in which he prayed that three quarter sections of land in Osceola county be ordered sold to pay the claims against the estate. The petition alleged that Brigham died seised of said land, and that the cause of delay in asking an order of sale was the pendency of an action to recover the amount of the claim of Culbertson from H. C. McAllister and the unsalability of the land. Of the defendants, Celia Brigham is a widow of deceased and the daughter of H. C. McAllister. Helen Brigham and Mrs. Harry Hine are daughters of deceased. Lucius McAllister is son and Anna M. Burnett is a daughter of H. C. McAllister. The defenses interposed were: (1) That the action was barred, in that the petition was filed “more than 12 months after the appointment of said administrator, and no peculiar circumstances are shown to exist which would authorize a court of equity to excuse a delay of nearly 10 years in administrator before making his application and filing his petition to sell the real estate for the payment of said decedent's debts.” (2) That said real estate was not owned by deceased at the time of his death nor prior thereto, but was the property of H. C. McAllister, and then belonged to Celia Brigham and Anna M. Burnett. (3) That the last-named persons and their grantors “have been in open, notorious, and adverse possession of said real estate for more than 10 years past.” In a separate answer Mrs. Brigham averred that she was widow of deceased, and as such was entitled to one-third of all real estate of which said Brigham died seised, free from indebtedness outstanding against him, and she asked the court to protect her rights as widow in any real estate which the court might find belonged to the deceased. To this answer plaintiff replied that in the proceeding referred to, wherein Culbertson prayed that an administrator be appointed, H. C. McAllister, Mrs. Brigham, and her daughters were made parties, notified of the hearing of the application and joint issue thereon, and that on hearing the court adjudicated that said McAllister did not own the real estate described at the time of Brigham's death, but that it then was the property of Brigham; that McAllister never owned said premises; that title thereto never passed to Lucius McAllister, under whom Mrs. Burnett and Mrs. Brigham claimed; that a pretended deed from Brigham and wife to H. C. McAllister was never delivered; that the deed from H. C. McAllister and wife to Lucius McAllister was void and of no effect, for that the grantor was incapable of executing a deed at the time the same was signed, and that the same was without consideration and made in pursuance of the plan to place the title of said land where it could not be reached by the creditors of Brigham or McAllister, and that the subsequent conveyances by Lucius McAllister to Mrs. Burnett and Mrs. Brigham were in pursuance of a similar design; that Lucius McAllister was concluded by the adjudication referred to for that (1) he acquired only the interest H. C. McAllister had, and (2) he had then concealed the deed from his father by keeping it off from the record, and that, even though McAllister may have been insane at the time, said order appointing an administrator was binding on him and his heirs; that the property belonged to plaintiff's decedent. In reply to the answer of Mrs. Brigham, plaintiff pleaded the alleged adjudication: (1) That she had made no claim of dower until February 19, 1907, but had asserted the ownership of an undivided one-third of the realty under an independent claim of title; and (2) if such dower were set apart, it would award her an estate additional to fee ownership, and her claim should not impair the right of the petitioner to subject the entire estate to the payment of the debts of deceased. On hearing the petition was dismissed, and plaintiff appeals. Affirmed.L. H. Salinger and B. I. Salinger, for appellant.

Jayne & Hoffman, for appellees.

LADD, J.

The basis of the claim of Culbertson established against the estate of L. P. Brigham was four promissory notes executed to him by the firm of Salinger & Brigham, composed of said Brigham and B. I. Salinger. Action was begun on these notes against the surviving partner March 20, 1896, and later H. C. McAllister was made a party, and recovery sought against him on the ground, as was alleged, that for a valuable consideration he had agreed to sign notes as surety of Salinger and Brigham, and that these should be delivered to Culbertson in the place and stead of all notes then held by him against said firm, and that he failed to perform said agreement, to Culbertson's damage in the amount of the notes sued on. McAllister's answer put these averments in issue, and the petition, as against McAllister, was finally dismissed in 1906. See Culbertson v. Salinger & Brigham et al., 111 Iowa, 447, 82 N. W. 925, 122 Iowa, 12, 97 N. W. 99, and 131 Iowa, 307, 108 N. W. 454. Immediately after the final disposition thereof, the petition in this action was filed. The reason assigned for the delay is that, had the action against McAllister been successful, payment would have been procured from him, and proceedings against the land of the deceased rendered unnecessary. It is also said that land was not of ready sale in 1896, and those entitled thereto have been benefited by such delay through the increase in value of the land from $50 to $75 per acre. But, as seen, the value of the land was ample in 1896 and thereafter to satisfy the claims on which the application to sell was based, and the mere fact that property may increase in value furnishes the officer of court no excuse for postponing an application for an order long beyond the statutory period. Otherwise he might speculate on futures at will and necessarily must be exonerated for delay if in doing so he exercise reasonable foresight. Moreover, the administrator is not authorized to weigh the possible enhancement in value through delay against the probable inconvenience resulting therefrom to the owners of the fee. There was no showing that a sale of the property at an earlier day as in 1898 or any year since would have resulted in sacrifice as in Conger v. Cook, 56 Iowa, 117, 8 N. W. 782, and like cases. The alleged enhancement in value did not justify the long delay. Nor do we think the pendency of the action against McAllister justification for the postponement of the application for nearly 10 years. It will be observed that deceased was primarily liable on the notes as partner of the firm of Salinger & Brigham, and that action against McAllister was grounded on an alleged breach of contract to become surety for the firm on the same indebtedness. Had Culbertson been successful in that suit and collected of McAllister, the latter would have had a claim against the estate of Brigham for the amount paid, so that it is not perceived what advantage could accrue to the estate through the delay.

Section 3349 of the Code provides that all claims not filed and allowed within 12 months after the first publication of notice of the appointment of executor or administrator shall be barred unless peculiar circumstances entitle claimant to equitable...