In re Chismore
| Decision Date | 16 May 1914 |
| Docket Number | 29,413 |
| Citation | 147 N.W. 297,166 Iowa 217 |
| Parties | In the Matter of CHARLES C. CHISMORE, Deceased, v. ANNA CHISMORE, Administratrix, Appellee CLARISSA A. CHISMORE BIDER, Claimant, Appellant, |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. MILO P. SMITH, Judge.
APPEAL from the action of the court in granting a new trial. Defendant appeals.
Affirmed.
E. J Dahms and F. L. Anderson, for appellant.
J. H Preston and E. C. Preston, and E. R. Baskerville, for appellee.
On February 10, 1912, Anna Chismore was duly appointed administratrix of the estate of Chas. C. Chismore, deceased, and qualified as such. On February 12, 1912, Clarissa A. Chismore Bider filed in the district court, in which said administration was pending, a claim against the estate of Chas. C. Chismore, which claim was in the following words and figures:
Claimant claims the sum of three thousand dollars against the estate of Charles C. Chismore upon promissory note given July 7, 1910, together with interest at six per cent from date thereof. A copy of note is hereto attached. Cedar Rapids, Ia., July 7, 1910. After date, for value received, I promise to pay Clarissa A. Chismore Bider, or order, $ 3,000.00 (three thousand dollars) at Cedar Rapids, Iowa with interest payable semiannually at the rate of 6 per cent per annum from until paid. If any part of the principal or interest of this note is not paid when due, the overdue amount shall bear interest at the rate of 8 per cent per annum after maturity until paid, payable semiannually. If this note is not paid at maturity agree to pay expenses of collection, including legal attorney fee, and hereby consent that any justice of the peace may have jurisdiction on this note, provided the amount does not exceed three hundred dollars. All parties to this note, including sureties, endorsers and guarantors, hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest and diligence in bringing suit against any party thereto, and hereby consent that time of payment may be extended from time to time without notice thereof.
To which the administratrix answered as follows:
Comes now the above-named defendant, and for answer and defense to the claim of plaintiff filed herein says: That she reserves for herself as such administratrix, and relies upon all the provisions of the law constituting a defense in behalf of said estate against said claim, the same as though specifically set out herein. And for further defense this administratrix says: That on and prior to the 9th day of November, 1901, the said claimant and the said deceased were husband and wife, that on said day a divorce was granted by this court, and by the decree in said divorce proceedings it was provided that deceased should pay to said claimant alimony as therein specified. That deceased complied with all the provisions of said decree by paying to said claimant the alimony therein provided for, and that all of said decedent's obligations thereunder were thereby fully and finally settled and satisfied. And this defendant avers that, since the satisfaction of said alimony by decedent, the said decedent never was indebted to said claimant in any sum whatever, neither did he have any business transaction with said claimant of any character from said date up to the time of his death. Wherefore defendant says that said pretended note has not, and never had, any consideration for its execution, and the same is void and of no effect. Wherefore this defendant asks that said estate be protected from the allowance of said illegal claim.
Upon the issue so tendered, the cause was tried to a jury. Upon the conclusion of all the testimony, the court, on the motion of the claimant, directed a verdict for the claimant. Thereupon the jury returned a verdict for the amount of the note, to wit, $ 3,469. Thereafter, and within the time allowed by law, the administratrix filed her motion for a new trial, which was by the court sustained and a new trial granted. From the order granting a new trial, the claimant, Clarissa A. Chismore Bider, appeals, and assigns the following errors for reversal:
This case presents a question of fact. The burden of proof rested upon the claimant. To recover, the plaintiff must establish two propositions: (1) That the note, upon which she predicates her right to recover, was executed by intestate. (2) That it rests upon a good or valuable consideration.
The signature to the note being proven, the presumption is that it was executed by the party whose signature is attached thereto. The signature may be proven by the testimony of one who saw it placed there, or by the testimony of those who are familiar with the handwriting of the deceased, or who have seen him write and know his signature, or it may be proven by the testimony of experts, by comparison, or by comparison by the jury, with writing proved to be genuine. See section 4620 of the Code. Every negotiable instrument is deemed, prima facie, to have been issued for a valuable consideration, and every person whose signature appears thereon, to have become a party thereto for value. See Code Supplement, section 3060-a24.
The general rule is that where suit is brought upon a negotiable promissory note, and the original or copy thereof is attached to the pleading, the signature thereto is deemed to be genuine and admitted, unless the person whose signature the same purports to be shall, in a pleading or writing filed within the time allowed for pleading, deny the genuineness of such signature. See section 3640 of the Code. In such case, where there is no denial under oath, as required by the statute, no proof of the genuineness of the signature is required of the party presenting it.
Where, however, the claim is against an estate, based upon a note, claimed to have been executed by one who is dead, this provision of the statute does not apply, for the reason that the dead can neither affirm nor deny. The execution of the note and the genuineness of the signature are put in issue by the statutory denial. This denial avoids the presumption which ordinarily obtains in favor of the signature on a written instrument, when the statutory denial is not made. See section 3340 of the Code. The law interposes, on behalf of the estate, a denial of the claimant's right to the relief for which she prays, without any pleading on behalf of the estate. In this case, the plaintiff's right to recover rests upon due proof of the execution of the instrument upon which she relies, and that it rests upon a good or sufficient consideration. See Schulte v. Coulthurst, 94 Iowa 418, 62 N.W. 770.
In Smith v. King, 88 Iowa 105, 55 N.W. 88, this court had occasion to discuss this question in a case involving the question here under consideration. In Smith v. King, the plaintiff sought to establish a claim against the estate of which the defendant was the executor. The claim was founded upon a promissory note. The court admitted the note, without proof of the genuineness of the signature, on the theory that the signature was not denied under oath, but, upon a reconsideration of the case, changed its ruling, and held that the note could not be introduced in evidence without such proof, although there was no denial, under oath, of the genuineness of the signature. This court, in passing upon the question, said:
The only question presented is: Did the court err in holding that the note was not admissible, in the absence of any evidence as to the genuineness of the signature of Jane King? The question here presented involves the construction of section 2410 (now 3340), and section 2730 (now 3640), of the Code. Section 2410 (3340) provides that all claims filed against an estate, 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. Section 2730 (3640) provides that, when a written instrument is the basis of the action, the signature thereto shall be deemed genuine and admitted, unless the persons whose signature the same purports to be shall deny the genuineness of such signature under oath. Under section 2410 (3340), it has been held that the denial made by the law puts in issue all matters upon which a defense to the claim could be based, usually set forth in a general denial, and such denial casts the burden upon the plaintiff to establish every material allegation of his petition. In Ashworth v Grubbs, 47 Iowa 353, it was expressly held that a denial of the execution of the note included a denial of the genuineness...
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