In re McPheeter's Will
| Decision Date | 06 April 1943 |
| Docket Number | 46243. |
| Citation | 8 N.W.2d 588,233 Iowa 199 |
| Parties | In re McPHEETERS' WILL. JOHNSTON v. McPHEETERS. |
| Court | Iowa Supreme Court |
Oscar Strauss, of Des Moines, for appellant.
Henry E. Sampson, of Des Moines, for appellee.
There is involved herein a claim of Myrtle L. Johnston against the estate of Walter P. McPheeters, deceased, and against Zelma I. McPheeters, administratrix with the will annexed of said estate. The claim was filed in probate and upon motion of the claimant was transferred to equity and was tried and determined by the lower court in that forum.
The records in this case show that Myrtle L. Johnston, the claimant, and Walter P. McPheeters, now deceased, were married in Kansas in 1912 and continued to live together as husband and wife until the first day of June, 1922. On March 17, 1926 in the Circuit Court of Clay County, Missouri, upon her petition, claimant was awarded a decree of divorce from Walter P. McPheeters and in said decree was given the exclusive care, custody and control of a minor child, Josephine McPheeters, then seven years of age. In said decree Walter P. McPheeters was ordered to pay to claimant for the support and maintenance of said child the sum of $30 per month and execution was ordered to issue therefor.
Later Walter P. McPheeters moved to Des Moines, Iowa, and married. He died testate, a resident of Polk County, Iowa, on the 16th day of August, 1941. On September 16, 1941, his will was admitted to probate in the District Court of Polk County, Iowa, and his widow, Zelma I. McPheeters, was appointed administratrix with the will annexed. Said administratrix qualified as provided by law and on September 17, 1941, gave due and legal notice of her appointment. On July 11, 1942, said administratrix filed a final report in said estate.
On June 27 1942, Myrtle L. Johnston, claimant, filed in the estate a claim for the sum of $1,890 as being due from the deceased on account of his failure to make the payments as provided in the decree of divorce of March 16, 1926. She asked that said amount with interest be allowed. Attached to said claim were duly authenticated copies of the court proceedings in Missouri wherein claimant was divorced from the decedent. On July 21, 1942, claimant filed what was termed a petition and claim wherein she alleged that at the date of his death, the said Walter P. McPheeters was indebted to her in the sum of $1,890 with interest and made said claim a part of her petition. She pleaded that the will of Walter P. McPheeters was probated on September 16, 1941, and notice of the opening of said estate was given on September 17 1941. Claimant further alleged that for many years she had been a nonresident of Iowa and that at the time of the death of Walter P. McPheeters and the granting of the administration of his estate, she was a resident of the state of Colorado. Claimant further alleged that the estate was still open and was not fully administered, was solvent and that there was property belonging to the estate subject to administration more than sufficient to pay all claims against it, including that of claimant.
Claimant further pleaded, by way of an amendment, that on July 1 1941, the Iowa law was changed whereby the time for the fiing of claims against estates was reduced from a period of twelve months following the opening of an estate to a period of six months; that the law permitting the filing of claims against estates within twelve months had long been on the statute books and that she was wholly without knowledge or notice of the change and was without such contact as to put her on notice of the change; that her claim herein was filed within approximately nine months after the posting of the notice and well within the year as provided in the statute prior to the amendment referred to; that by reason of the foregoing she did not file her claim within the six months' period following the notice of appointment of the administratrix herein and she alleged that such delay and belated filing has not and cannot prejudice said estate and she repeated the prayer of her claim as first filed.
On August 25, 1942, claimant filed another amendment to her claim and stated that during the period between October, 1933, and December, 1938, the said Walter P. McPheeters failed to comply with the order of the court to make payment of $30 per month for the support of his minor child and that said support and maintenance were supplied by the claimant out of her own funds and that the reasonable value of such support and maintenance is the sum of $3,000, and she asked that her prayer for relief contained in the petition and claim be granted.
On October 7, 1942, claimant filed an amendment to her claim as amended and stated that from and after thirty days from the date of the death of Walter P. McPheeters, the administratrix had knowledge of her claim as asserted therein. In said amendment claimant made each and every order and filing in the estate a part of the claim and renewed the prayer of her petition and claim.
On September 4, 1942, on the application of claimant, the matter of her claim was transferred to equity. On October 6, 1942, the administratrix filed a motion to dismiss claimant's petition filed July 21, 1942 and in said motion set out the various grounds therefor. The principal ground of said motion to dismiss was based upon the failure of the claimant to file her claim within the statutory period as set forth in Section 11972 of the Code, as amended by Laws 1941, c. 301. Also that the estate had been fully administered and settled and distribution made at the time said claim was filed. In short, the administratrix asserted that the claim was barred by the statute of limitations, and there was no showing made entitling claimant to an allowance of her claim. On October 9, 1942, said motion to dismiss was sustained in the lower court and judgment for costs was entered against the claimant. From this order of the court sustaining said motion to dismiss, the claimant has appealed.
Boiled down, the pleaded facts show that Walter P. McPheeters, a resident of Polk County, Iowa, died testate on August 16, 1941. His will was probated in the District Court of Polk County, Iowa, on September 16, 1941, and his widow, Zelma I. McPheeters, was appointed administratrix with the will annexed; that she qualified and gave notice of her appointment on September 17, 1941, and thereupon proceeded to the settlement of said estate. At the time of the death of Walter P. McPheeters appellant herein had a claim against the decedent for failure to pay for the care and support of the minor child as provided in the decree of divorce; that appellant, prior to and at the death and after the opening of the estate was a nonresident of the State of Iowa and was a resident of the State of Colorado. On June 17, 1942, appellant filed a claim against the estate for $1,890, with interest and asked for an allowance of said amount, and thereafter various amendments were filed to said claim, the last amendment reciting that the appellant, by reason of the failure of the said Walter P. McPheeters to pay the support of said minor child, had advanced the cost of said support and maintenance and that such was reasonably worth the sum of $3,000 and asked that the claim be allowed.
Appellant concedes that the claim was not filed within the statutory period and that it was not filed until practically ten months following the opening of the estate. Appell...
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