In re Fuller's Will
| Decision Date | 18 June 1940 |
| Docket Number | 45177. |
| Citation | 293 N.W. 55,228 Iowa 566 |
| Parties | In re FULLER'S WILL v. FULLER. BLUE GRASS SAV. BANK OF BLUE GRASS |
| Court | Iowa Supreme Court |
Appeal from District Court, Scott County; Wm. W. Scott, Judge.
Claim on promissory note on which decedent was guarantor. From order disallowing claim and objections to final report claimant appeals.
Reversed.
Hoersch & Hoersch, of Davenport, for appellant.
Smith Swift & Maloney, of Davenport, for appellee.
The facts in this case are not in dispute. The case was tried on a stipulation and the claim was disallowed. From such disallowance this appeal is taken.
On December 28, 1928, one C. R. Pettit executed his note to the claimant in the sum of $1211. This note bore the following endorsement:
" For Value Received We hereby guarantee the payment of the within note, waiving demand, notice and protest.
(Signed) Nellie Fuller.
(Signed) Miltilda Pettit."
This note was secured by chattel mortgage. Several small payments were made and endorsed on the note, the last of which was on July 24, 1930. Nellie L. Fuller died and Jesse C. Fuller was appointed executor of her estate and notice of his appointment was given on March 18, 1933. Within the six months' period, and on April 14, 1933, the claimant filed its claim on the note attached to the claim, in the office of the clerk of the district court of Scott county. On July 17, 1933, a resistance to the claim was filed by the executor of the Nellie L. Fuller estate, alleging that the endorsement was without consideration; that the note and chattel mortgage were cancelled by act of the parties therein concerned; estoppel; that the signature was obtained by fraud, duress, intimidation, and misrepresentation; and other reasons. Neither such claim nor the objections was ever set down for hearing. On February 27, 1939, the executor filed his final report, in which he referred to the claim and to the fact that he had previously filed his resistance thereto; and alleging that the note was past due for more than ten years and the principal maker thereof, by reason of the statute of limitations, was relieved from any liability in connection therewith. The report further alleges that the guarantor is discharged by the discharge of the principal, alleges the bar of the statute of limitations, and asks that the report be approved. On March 10, 1939, the claimant filed its objections to the final report of the executor, alleging that the filing of the claim constituted the institution of an action against the executor; denying that the statute of limitations could run against the claimant during the pendency of the action; denying the bar of the statute; and asking the allowance of the claim and that the final report of the executor be not approved. The stipulation, subject to the objection of the claimant, further sets out the purchase of certain real estate prior to the execution of the note, but this is not material to the point in issue in this proceeding.
A jury was waived and hearing had, and the note attached to the claim was offered in evidence against the objection of the executor. On May 3, 1939, the court entered an order overruling the objections to the final report of the executor and disallowing the claim, and from this order appeal is taken to this court.
The only question involved in this proceeding is whether or not the claim is barred by the statute of limitations. Code 1939, § 11007. The claimant (appellant herein) contends that the filing of the claim tolled the statute of limitations, that being the commencement of an action. On the other hand the executor argues that, ten years having elapsed between the date of the note and the filing of the final report, the note is now barred under the provisions of section 9581 of the Code of Iowa (), which provides that a person secondarily liable on an instrument is discharged by the discharge of a prior party. Section 9581 is in part as follows:
" A person secondarily liable on the instrument is discharged:
1. By an act which discharges the instrument.
* * *
3. By the discharge of a prior party.
* * *
5. By a release of the principal debtor, unless the holder's right of recourse against the party secondarily liable is expressly reserved."
The executor also refers to the fact that the claim against the estate was denied by the executor and that such claim did not come before the court on any notice filed by the claimant setting the matter of its claim for hearing and determination. As to the latter argument it is to be remembered that the claim was filed within six months after the giving of notice by the executor, and as such was a claim of the third class.
If no action were brought within ten years from the date of the note, which, being a note on demand, was due on the date thereof, it would be fully barred by the statute on December 28, 1938. Citizens' Bank of Pleasantville v Taylor, 201 Iowa 499, 207 N.W. 570.But it is not disputed that if action were brought any time prior to December 28, 1938, the statute would be tolled. However, the claimant did file its claim on the 14th day of April, 1933. The filing of a note as a claim against an estate before the note is barred prevents the running of the statute, and it is not material that notice of hearing upon the claim is not given until the note has run more than ten years after maturity. Fritz v. Fritz, 93 Iowa 27, 61 N.W. 169.In that case the note which was a part of the claim was dated January 1, 1882. Claim therefor was filed in November 1891, and on the failure of the administrator to allow the claim, and on June 29, 1893, notice was served upon the administrator of the hearing at the coming term of the district court. The plea was the statute of limitations, and the court held that the single question was: Does the filing of the claim suspend the running of the statute, and was...
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