Herring v. The Herring's Estate

• Decision Date: 02 April 1895
• Citation: 62 N.W. 666,94 Iowa 56
• Parties: JOHN R. HERRING v. THE ESTATE OF SOPHIA A. HERRING, Deceased, AND THE FIRST METHODIST EPISCOPAL CHURCH, Appellant
• Court: Iowa Supreme Court

62 N.W. 666

94 Iowa 56

JOHN R. HERRING v. THE ESTATE OF SOPHIA A. HERRING, Deceased, AND THE FIRST METHODIST EPISCOPAL CHURCH, Appellant

Supreme Court of Iowa, Des Moines

April 2, 1895

Appeal from Lee District Court.--HON. J. M. CASEY, Judge.

This is a proceeding in probate by which the plaintiff seeks to establish a claim against the estate of Sophia Herring deceased. The First Methodist Episcopal Church of Ft. Madison is the principal legatee under the will of the deceased, and it appeared to the proceeding, and resisted the claim of the plaintiff. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.

Reversed.

T. B Snyder for appellant.

Casey & Stewart for appellee.

OPINION

Rothrock, J.

I.

As we understand the record, the deceased was the widow of a brother of the plaintiff. He was executor of her will, and when he filed his claim against the estate he petitioned the court to appoint a temporary executor to act upon the claim. After the First Methodist Church filed its answer in denying and contesting the claim, it was agreed in open court that no temporary executor should be appointed, and the matter was set down for trial on the claim of the plaintiff, the answer thereto by the said church, and the "denial of plaintiff's claim by law." This last part of the agreement doubtless had reference to section 2410 of the Code, which provides that "all claims filed and not expressly admitted in writing signed by the executor, with the approbation of the court, shall be considered as denied, without any pleading on behalf of the estate." Under the agreement above referred to, the cause was required to be tried precisely as it would have been if a temporary executor had been appointed, and under the same restrictions as to the necessary evidence to establish the plaintiff's demand. The claim was in this form:

To services rendered Sophia A. Herring from

July, 1879, to January, 1893, in attending to

all her business, renting her property, col-

lecting rents, making and overseeing repairs,

payment of taxes, insurance, etc., being thir-

teen years and six months, at $ 35.00 per year

$ 472 50

To cash paid for taxes March 19, 1892

23 26

To insurance paid April 1, 1892

22 50

To painting and repairing roof, June 1, 1892

23 00

To cash paid for taxes September 20, 1892

23 27

To cash paid for connecting with water mains

and pipe in house, October 13, 1892

22 00

$ 586 53

The principal controversy in the case is in reference to that part of the claim for services from July, 1879, to January 1893, amounting to four hundred and seventy-two dollars. The plaintiff was a witness in his own behalf and testified in part as follows: "Am plaintiff. Live five miles from Ft. Madison. Was a brother-in-law of Sophia Herring, deceased. She lived in Ft. Madison the biggest part of the time from July, 1879, up to her death. Was living in the country for last three or four years. Lived part of the time with my son, part at Rice's, sometimes with Duey's and visited around. Int. 8. What if any business did you attend to for her from July, 1879, up to the time of her death? Int. 9. I will now ask what you did in the way of looking after this property, in the way of paying insurance and taxes, etc.? Ans. I paid her taxes and insurance, and rented the property, received the rents, and attended to having the repairs that should be done about the house; paid taxes on property; put a new tin roof on; had carpenter work done. I always had seen about the renting of that property. Generally received and receipted for the rents. Paid taxes every year, unless there was one year that Rice lived with them. Attended to having property insured. Think I made twelve or thirteen trips a year to town on her business. Cannot say as to total number of times I came in. I thought my services were worth the price charged,--$ 35 a year. The cash items for taxes, of $ 23.26, and $ 23.27, I paid out of my own money. I have never been paid for that by anybody. (Tax receipts for above introduced.) The cash item for insurance, of $ 22.50, I paid out of my own money. It has never been repaid. I paid $ 22 for putting in water service. The taxes I paid were for the same house. For repairs and tin roof, January 1, 1892, $ 23, I paid Mr. A.; part was paid for painting. I paid for tin work to him. Some was for paints I got. Did not put down the items and work. Don't recollect the amount of tinwork. I receipted for it. I paid that $ 23 out of my own money. It has never been repaid." All of this testimony was objected to as being in the nature of personal transactions between the plaintiff and the deceased. The objection was overruled, and a proper exception was taken.

It is unnecessary to cite section 3639 of the Code in full. It is a plain and unequivocal provision of the law, which absolutely prohibits a party to an action from...