Estate of Steinberg, Matter of, 88-1089

• Decision Date: 19 July 1989
• Docket Number: No. 88-1089,88-1089
• Citation: 443 N.W.2d 711
• Parties: In the Matter of the ESTATE OF Gayford H. STEINBERG, Deceased. Genevieve PARISEAU, Appellant, v. FIRST NATIONAL BANK OF COUNCIL BLUFFS, Executor of the Estate of Gayford H. Steinberg, Deceased, Appellee.
• Court: Iowa Supreme Court

Page 711

443 N.W.2d 711

In the Matter of the ESTATE OF Gayford H. STEINBERG, Deceased.

Genevieve PARISEAU, Appellant, v. FIRST NATIONAL BANK OF COUNCIL BLUFFS, Executor of the Estate of Gayford H. Steinberg, Deceased, Appellee.

No. 88-1089.

Supreme Court of Iowa.

July 19, 1989.

Clarence B. Meldrum, Jr., Council Bluffs and John J. Respeliers, Omaha, Neb., for appellant.

Oscar O. Over of Over, Over & Over, Council Bluffs, for appellee.

Considered by McGIVERIN, C.J., and HARRIS, SCHULTZ, LAVORATO and SNELL, JJ.

McGIVERIN, Chief Justice.

Appellant, Genevieve Pariseau, is the daughter of Gayford H. Steinberg, deceased. After Gayford's will was admitted to probate, Genevieve filed a claim in her father's estate and also filed an action to set aside the will. The district court dismissed Genevieve's petition to set aside the probate of the will as untimely. The court also dismissed her claim in probate due to failure to name the executor as defendant. Genevieve appealed, and we reverse.

I. Background facts and proceedings. The following facts can be discerned from the district court's post-ruling statement of proceedings. Iowa R.App.P. 10(c).

Gayford H. Steinberg died on July 26, 1987. A will of the decedent was admitted to probate on September 21, and First National Bank of Council Bluffs was appointed executor on that date. Notice of probate of the will and appointment of executor was published on September 25 and October 2.

On February 2, 1988, the last date upon which an action to set aside the will could be filed, Genevieve filed an "application" to contest probate of the will. An original notice was not filed with the application, however, and service was not perfected. Notice of the action was not provided to any of the other interested parties under the will. See Iowa Code § 633.312 (1987).

Also, on February 2, Genevieve filed a claim against the estate entitled "Genevieve Pariseau, claimant, vs. the Estate of Gayford Steinberg."

On March 10 the executor filed a resistance to the application to contest probate of the will, and a motion to dismiss Genevieve's claim in probate.

The district court found Genevieve's application failed to comply in a timely fashion with Iowa Code section 633.309, and sustained the executor's resistance to the application. The district court also dismissed Genevieve's claim in probate for the reason that it was improperly captioned against the estate of Gayford Steinberg, rather than against the executor of the estate.

Genevieve, who is now represented by new counsel, appealed as to both of these rulings.

II. Dismissal of the petition to set aside the will. Iowa Code section 633.308 provides that a person "may petition to set aside the probate of a will by filing a written petition in the probate proceedings." Iowa Code section 633.309, in turn, provides that such an action must be commenced within four months from the date of the second publication of notice of admission of the will to probate. See Iowa Code § 633.304. The executor concedes that Genevieve filed her petition within the four month limitation of section 633.309, but contends that her failure to provide an original notice when filing her petition prevented the tolling of this limitations statute.

In Ritter v. Dagel, 261 Iowa 870, 878, 156 N.W.2d 318, 323 (1968), relied on by the trial court when dismissing Genevieve's application, we held that the mere filing of a petition to set aside a will was not sufficient and that notice must also be served of the filing of a petition in order to avoid the running of the statute of limitations. At that time, our general rules of civil procedure required filing of the petition and service of original notice within the limitations period. Iowa R.Civ.P. 48, 49 (1966). Since the Ritter case was decided, we have amended our rules of civil procedure. See 1975 Iowa Acts ch. 260. Thus, it is necessary that we readdress this question.

Actions to set aside a will are triable in the probate court as actions at law, and the rules of civil procedure apply. Iowa Code § 633.311. Current Iowa Rule of Civil Procedure 48 provides that "[a] civil action is commenced by filing a petition with the court." Iowa Rule of Civil Procedure 55, furthermore, provides that "[f]or the purpose of determining whether an action has been commenced within the time allowed by statutes for limitation of actions, ... the filing of a petition shall be deemed a commencement of the action."

In addition to these rules, however, the executor directs our attention to current Iowa Rule of Civil Procedure 49 and contends that rules 48 and 55 must be read together with rule 49.

Iowa Rule of Civil Procedure 49 in part provides:

(a) Written directions for the service of the original notice and copy of petition shall be delivered to the clerk with the petition. There shall also be delivered to the clerk with the petition the original notice to be served and sufficient copies of both....

(b) Upon the filing of the petition the clerk shall forthwith deliver for service the original notice and copies of the petition, and the directions for service to the sheriff, to a person specially appointed to serve it, or other appropriate person....

(Emphasis added.)

The executor contends that Genevieve's failure to deliver an original notice to the clerk with the petition in compliance with rule 49 prevented her from tolling the statute of limitations; thus she did not timely file a petition to contest probate of the will.

In Scieszinski v. City of Wilton, 270 N.W.2d 450, 452 (Iowa 1978), we noted that under the prior rules of civil procedure an action was commenced for limitations purposes by service of the original notice. These rules were amended in 1975 to allow commencement of an action, for limitations purposes, to begin with filing of the petition with the court. This change was intended to prevent the hardships which sometimes resulted when prompt service was not effectuated and the period of limitations expired. Id.

In Scieszinski, the plaintiff filed an eleventh-hour petition seeking damages from the city of Wilton and one of its officers. Rather than filing an original notice with the petition, however, the plaintiff filed a motion together with an ex parte court order requiring the clerk to seal the petition, motion and order. The city subsequently claimed, based upon rule 49, that the plaintiff had failed to commence his action within the period of the statute of limitations. In response, the plaintiff asserted that his technical compliance with rule 55 tolled the running of the statute of limitations. Id. The district court nevertheless dismissed the plaintiff's action.

In the plaintiff's appeal, we recognized the salutary intentions of the amended rule, and then observed:

We have no intention to retreat from the advance made in the amendment. Here however we have an unusual case. We do not have a bungle by a clerk while processing papers or a botch by an officer in delivering them. We have an intentional bypass by a plaintiff of some of the steps for starting an action--the requirements for contemporaneously placing in the clerk's hands the petition and the notice papers and for prompt delivery of those papers by the clerk to the serving officer.

Id.

Under the circumstances of that case, we held that the plaintiff intentionally defeated the prompt issuance or service of summons; therefore, the filing of the petition alone was not enough to toll the statute of limitations. Id. at 453; see also Becker v. Star Auto, Inc., 376 N.W.2d 645, 648 (Iowa App.1985).

The issue concerning timely commencement of an action was again raised in Taylor v. Wiebold, 390 N.W.2d 128 (Iowa 1986). In Taylor we noted that federal cases interpreting Federal Rule of Civil Procedure 4(a), the federal counterpart to Iowa Rule of Civil Procedure 49(b), had drawn a distinction between those cases in which delay was traceable to a plaintiff's intentional act and those where the delay was attributable to other causes. Taylor, 390 N.W.2d at 130 (citing 4 C. Wright and A. Miller, Federal Practice and Procedure § 1086, at 341-43 (1969)). Under the facts in Taylor, we found that there was no evidence of intentional delay on the part of the plaintiff; therefore current rules 48 and 55 applied, and the filing of the petition alone commenced the...