Craig v. Estate of Craig
| Decision Date | 21 November 1914 |
| Docket Number | 29770 |
| Parties | LIZZIE CRAIG, Appellee, v. Estate of EDWARD CRAIG, Deceased; FRANK O. CRAIG and MAUD STONE, Appellants |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge.
PROCEEDINGS to establish a claim against the estate of Edward Craig deceased. On the theory that the claim was not filed in time claimant pleaded equitable circumstances excusing the delay and upon trial to the court these circumstances were held sufficient. A jury was then called to pass upon the claim and at the conclusion of the testimony the trial court directed a verdict for the claimant, and the objecting heirs appeal.
Affirmed.
Milton Remley, for appellants.
John J. Ney, for appellee.
OPINION
There is much dispute between counsel over the record, which, according to the certified transcript, is plain and could easily have been abstracted. But the record is such that we have been compelled to resort to these transcripts for the facts. Appellee's counsel say in argument there are no transcripts; but we find two which bear the proper filing marks and have come to us with the other papers, and we must assume they are properly before us. Many motions are also filed in the case; among them a motion to dismiss the appeal because of insufficiency of the notice.
It is manifestly sufficient to present some of the matters complained of, and the appeal should not be dismissed.
Another is a motion to strike appellants' argument because filed out of time. It is claimed that appellee had the burden and that he was entitled to open and close the argument. We do not, as a rule, strike an argument because not filed in regular order, provided it be filed in time. The case has been thoroughly argued on both sides, and no prejudice has resulted to appellee, even if it be conceded that he was entitled to open and close. This motion to strike will also be overruled.
The case is complicated by various claimed errors made by the trial court prejudicial to appellee; but appellee has not appealed. Again the point is made that the trial court neglected to rule upon certain motions, i etc., made by appellee; but appellee did not appeal from these matters.
As we understand the case, it is as follows: Edward Craig died intestate, the latter part of November of the year 1910, leaving Lizzie or Elizabeth Craig his widow, and Frank O. Craig and Maud Stone, his children and only heirs surviving. The widow was appointed administratrix, and gave notice of her appointment December 3, 1910. On the 25th day of February, 1911, she made out, subscribed, and verified a claim in the name of Lizzie Summerhays Craig against the estate, which claim, omitting the verification, is as follows:
Lizzie Summerhays Craig v. Lizzie Craig, Administratrix of the Estate of Edward Craig, Deceased.
Claim.
The said Lizzie Summerhays Craig claims of the said Lizzie Craig as administratrix of said estate the sum of eleven hundred and eighty dollars, as per the following statement:
To money loaned decedent
By reason of circumstances presently to be related, this claim was not filed until November 3, 1911. On April 5th the court appointed one Cash as "special administrator to investigate and report upon the claim." On December 5 1912, this administrator made and filed his report allowing the claim to the amount of $ 1,223.75. On December 17th, of the same year, Frank Craig and Maud Stone filed the following resistance to the claim:
Comes now Maud Stone and Frank O. Craig, sole heirs of Ed. Craig, deceased, and deny that the said claim is just and right against the said estate; deny that she loaned any money to the said Ed. Craig, deceased, as stated in said claim. They further deny that said estate owes to the said claimant any sum whatsoever.
They, therefore, ask that she be required to prove her claim as any other claim against the said estate.
And on the same day they filed objections to the report of the special administrator. On the next day the claimant filed a motion to strike the above objections from the files, upon the following grounds:
(1) The said alleged heirs are not parties to this case or suit.
(2) The said alleged heirs are not the representatives of the deceased.
(3) The said alleged heirs have no legal title or power to defend, call a jury, or otherwise conduct a litigation.
(4) The claim is allowed by the special administrator and he is the sole representative of the deceased, in this matter; and his report stands as conclusive until impeached.
No rulings seem to have been made on any of these motions, and so the case rested until the regular February term of court, when the matter came on for hearing, the claimant in the meantime and on February 5, 1913, having filed an amendment to her claim, pleading equitable circumstances excusing her failure to file the claim within six months, and for not pressing it to a hearing, giving notice, or proving the same. The heir demurred to this amendment on the ground that the circumstances pleaded did not excuse the delay. This demurrer was overruled, and the heirs excepted.
On the 19th day of April, 1913, the matter came on for hearing before the court on the amendment to the claim setting forth the equitable circumstances, and, after hearing all the testimony, the court found that these equitable circumstances were sufficient to excuse any delay on the part of the claimant, in filing, giving notice of, and proving up her claim. The case was then assigned for trial, and, when reached for that purpose, on the demand of the heirs a jury was called and testimony heard upon the claim itself, and at the conclusion thereof the trial court directed a verdict for the claimant, and the claim with interest at 6 per cent. from March 2, 1908, was established and allowed against the estate.
The appeal of the heirs is from the judgment and order establishing the claim, "and from all orders made in the matter of such claim." As already stated, the claimant did not appeal, although her counsel have argued the case as if she did. Perhaps this is legitimate if it should appear from the whole record that no other order could be made except to allow the claim.
In the view we take of the case it is not necessary to decide this proposition, and we shall direct our attention to the two main questions presented by the appeal. It might also be suggested in this connection that Lizzie Craig objected to the trial by a jury, and upon this motion the trial court made the following order:
It appearing to the court the report of the special administrator has not been approved by the court and that the heirs of Edward Craig, deceased, are objecting to the allowance of the claim of Lizzie Craig, the court holds that the jury will be impanelled and the matter tried and determined and the objections will be overruled and exceptions noted. Exception saved.
It will be observed that the proceedings were about as complicated as they could well be; but, as we understand it, the only questions now arising relate to whether or not claimant sufficiently excused her delay in filing, proving, giving notice, etc., of her claim against the estate, and as to whether or not under the record a verdict should have been directed in her favor.
It appears that the law firm of Ranck & Bradley (Bradley doing the work) represented the estate or the administratrix; and that the administratrix spoke to him (Bradley) about her claim; and that he, not knowing of any contest, undertook to handle the matter for her. He made a preliminary investigation and advised her to file a claim. He then drew up the claim, which we have heretofore set out, and it was verified by claimant as stated. He expected to file it immediately, and fully supposed he had done so, and several times reported to claimant that it had been filed. He did not discover anything to the contrary until after the dissolution of his firm some time in June, 1911; when, in looking over various papers relating to other matters, he discovered that the claim had not been filed. Claimant fully supposed it had been filed and knew nothing to the contrary until about the time it was filed. When this discovery was made, the attorney then immediately filed the claim, and, having learned shortly afterward that there was to be a contest, he advised claimant to employ another attorney.
Before the matter was turned over to another attorney, Bradley had the claim docketed, and the "special administrator" was appointed as heretofore stated. But no notice was given of the filing of the claim for two reasons: First, because the regular administratrix was also claimant; and, second, because about the time of the change of counsel the heirs appeared and objected to the claim, and to the report of the special administrator.
Section 3349 of the Code provides:
All claims of the fourth of the above classes, not filed and allowed, or, if filed and notice thereof, as hereinbefore provided, is not served within twelve months from the giving of the notice aforesaid, will be barred, except as to actions against decedent pending in the district or Supreme Court at the time of his death, or unless peculiar circumstances entitle the claimant to equitable relief.
It will be observed that this claim was filed within twelve months, but no notice was ever given of its filing.
Sections 3338 and 3340, before their recent amendment by the 35th G. A., chapter 277, read as follows:
Sec 3338. Claims against the estate shall be clearly stated, and, if...
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