Flora v. Brown
| Decision Date | 20 March 1913 |
| Citation | 159 Iowa 253,140 N.W. 364 |
| Parties | FLORA v. BROWN ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; W. H. McHenry, Judge.
This is an application of the plaintiff administrator to sell real estate for the purpose of paying debts. From an order sustaining application, the defendants have appealed. Reversed.Oscar Strauss and E. J. Frisk, both of Des Moines, for appellants.
I. W. Douglas, of Maxwell, and Mulvaney & Mulvaney, of Des Moines, for appellee.
The plaintiff brought this proceeding as administrator of Lewis Bell. The proceeding was brought under the provision of sections 3323 and 3324. The right of the plaintiff to subject the real estate is resisted upon many grounds. The principal facts involved appear in the record by stipulation.
Lewis Bell died in July, 1904. Immediately thereafter the plaintiff was appointed as his administrator. The personal estate, which was small, was immediately converted into money and applied upon the payment of claims. At the time of the death of the decedent, he was the owner of an undivided one-fifth of 40 acres of land in Polk county, subject to the right of occupancy for life by his mother. This is the real estate involved in this proceeding. The decedent had been the owner of such real estate since 1897, when it came to him by inheritance from his father, Henry Bell. Lewis Bell left surviving him a widow and four children, two of whom are still minors. These are the defendants in this proceeding. In 1908 the administrator made his final report, and was finally discharged by order of the court. Up to that time no application had been made to subject real estate to the payment of debts. In 1911, by a proceeding which will be referred to again in a later paragraph, the estate was reopened, and the administrator was reinstated. Thereafter he brought this proceeding under the statute.
[1] It is well settled that the title to this real estate was cast by descent upon the heirs of Lewis Bell immediately upon his decease. It was no part of the estate coming primarily into the hands of the administrator. In re Pitts' Estate, 153 Iowa, 269, 133 N. W. 660. It was subject to the call of the administrator for the payment of debts, if necessary, under the provision of the sections above cited.
[2] We have repeatedly held, however, that the application by the administrator under these sections must be made promptly when it is made to appear that resort to real estate will be necessary for the payment of debts. We have held, also, that such application will not be allowed after a long delay, unless the delay be excused by a showing of equitable circumstances. McCrary v. Tasker, 41 Iowa, 255;Hadley v. Gregory, 57 Iowa, 157, 10 N. W. 319;Creswell v. Slack, 68 Iowa, 110, 26 N. W. 42;Reed v. Reed, 94 Iowa, 569, 63 N. W. 329;Milburn v. East, 128 Iowa, 101, 102 N. W. 1116. It has been held, also, that the excuse for delay must appear in petition and proof. Conger v. Cook, 56 Iowa, 117, 8 N. W. 782;Wilson v. Stanton, 58 Iowa, 404, 10 N. W. 792.
In the McCrary Case, supra, it was held that such application should ordinarily be made within 18 months. The later cases have not treated this period as an exact time limit; nor are we now disposed to hold it forth as such. But all our cases enforce the rule that the application must be prompt, in the absence of equitable circumstances excusing delay. The title to real estate cast by descent upon heirs cannot be clouded indefinitely by belated application, unless there be appropriate reason therefor.
In the case before us no equitable circumstance excusing the delay is contended for, except mere oversight. Mere oversight in such a case is mere neglect. Lewis Bell was a resident of Polk county. He lived upon the premises before the death of his father, Henry Bell, in 1897 and afterwards, and he was living there when he died in 1904. Henry Bell left a will devising the life estate to his widow, who survived him. No further provision was made in the will, and the fee was cast by descent upon his children. This will was probated in Polk county. Every essential fact that is known now to the administrator was known then, or was easily ascertainable. We are constrained, therefore, to hold that the application comes too late and without excuse for delay under the rule of our previous cases.
[3] 2. We have already referred to the fact that the administrator, previous to this application, had been finally discharged. This occurred in October, 1908. Afterwards certain creditors, whose claims were on file since 1904, brought, in another branch of the court, a proceeding in equity under the provision of section 3398. No other defendant was named therein than the present plaintiff; nor was any notice given to any party in interest. The defendant therein (plaintiff herein) made no resistance to the petition. A formal decree was entered reopening the estate and reinstating the administrator, and finding, also, that the real estate of the decedent, which is involved in this suit, was liable for the payment of the claims against the estate. It is now contended that such decree in the equity suit, whether right or wrong, is conclusive against all the parties herein, and that it determined in advance the very issue presented in this suit. If such contention be correct, then this suit was quite unnecessary.
Section 3398 is as follows: ...
To continue reading
Request your trial