In re Peet's Estate

• Decision Date: 17 October 1896
• Citation: 68 N.W. 705,99 Iowa 314
• Parties: IN THE MATTER OF THE ESTATE OF JAMES M. PEET, Deceased, Petition of ORA D. PITKIN, Executor, to Sell Real Estate to Pay Debts and Legacies, v. E. E. PEET, Administrator, and E. G. PEET, Administrator of the Estate of W. G. PEET, Deceased, Appellants, and MATILDA PEET
• Court: Iowa Supreme Court

68 N.W. 705

99 Iowa 314

IN THE MATTER OF THE ESTATE OF JAMES M. PEET, Deceased, Petition of ORA D. PITKIN, Executor, to Sell Real Estate to Pay Debts and Legacies, v. E. E. PEET, Administrator, and E. G. PEET, Administrator of the Estate of W. G. PEET, Deceased, Appellants, and MATILDA PEET

Supreme Court of Iowa, Des Moines

October 17, 1896

Appeal from Jones District Court.--HON. JAMES. D. GIFFEN, JUDGE.

THIS appeal is by the administrators of the estate of W. G. Peet deceased, from a decree ordering the petitioner to sell the real estate described, and to apply the proceeds, or so much thereof as may be necessary, to the payment of the legacy to Ora D. Pitkin, under the will of James M. Peet.

Reversed.

Jamison & Burr and F. O. Ellison for appellants.

Remley & Ercanbrack for Matilda Peet.

Sheean & McCarn for appellee.

OPINION

GIVEN, J.

I.

An unusual amount of litigation has attended the settlement of this estate, and the matters involved in the several cases are so interwoven, that we deem it necessary to here make a brief summary of the facts, and of the other cases; J. M Peet, died testate, August 13, 1888. He left surviving him his widow, Matilda Peet, to whom he bequeathed the interest on three thousand dollars, as provided in an ante-nuptial contract between them. He bequeathed to his daughter, Ora B Pitkin, nine thousand eight hundred and eighty-eight dollars, and to his son, W. G. Peet, certain described real estate, and the residue of all his estate, real and personal. The will was duly probated September 26, 1888, and W. G. Peet nominated therein, qualified as executor. The inventory of personal property, consisting of notes and mortgages, amounted to about fifteen thousand dollars. There were substantially no debts, except the expenses of the last sickness; consequently, but little to pay, other than the costs of administration allowances, to the widow and the legacies. Matilda Peet filed an application for an allowance, as widow, for her support pending the settlement of the estate, and was allowed eight hundred dollars, which, on appeal by the executor, was affirmed. See 79 Iowa 185 (44 N.W. 354). The widow also made claim for one-third of the property, real and personal, whereupon W. G. Peet filed his petition against her, showing that there were no debts, and asking to be quieted in his title, under the will, to all the real estate, as against claims of the widow. Decree was rendered in his favor, and affirmed on appeal. See 81 Iowa 172 (46 N.W. 1051). Before that opinion was announced, Ora D. Pitkin commenced an action against W. G. Peet, as executor and as an individual, and against Matilda Peet. On March 20, 1890, decree was entered therein, awarding to Mrs. Pitkin her legacy, but holding that W. G. Peet was not personally liable therefor, and limiting the payment of said legacy to the personal property; also holding that W. G. Peet was personally liable for the payment of said legacy to the personal property; also holding that W. G. Peet was personally liable for the payment of the interest on the three thousand dollars to the widow, and that she was not entitled to share in the personal property. From this decree all the parties appealed, and pending the appeal, the opinion in Peet v. Peet was announced. A re-hearing was granted, and an opinion filed, holding that the plaintiff, Mrs. Pitkin, had abandoned her appeal; that W. G. Peet was not personally liable for the interest on the three thousand dollars, and that the widow is entitled to a distributive share of the personalty, unaffected by the ante-nuptial contract, and to the interest on the three thousand dollars. See 87 Iowa 268 (54 N.W. 215). The case being remanded for decree in harmony with the opinion, the district court on the sixth day of October, 1893, entered a decree, in effect, as follows: That Mrs. Peet is entitled to share in the personal estate the same as if no ante-nuptial contract had been made, and is entitled to interest on three thousand dollars during her life, while she remains the widow of J. M. Peet, from time to time, as she demands it; that Ora D. Pitkin is entitled to the legacy as provided in the will, but whether with interest was not determined. It was decreed that said interest and said legacy are charges upon the property of the estate, and to be paid by the executor out of said property, after the payment of debts, and before W. G. Peet receives anything under the will, and that he takes the property devised to him, charged with the payment of said interest and legacy. From that part of said decree making the legacy to Mrs. Pitkin a charge upon the real estate, W. G. Peet appealed, and, having died pending the appeal, his administrators were substituted. On that appeal, this court held October 22, 1895, that making the legacy to Mrs. Pitkin a charge upon all the property of the estate, and requiring its payment from such property before W. G. Peet should receive anything under the will, was erroneous, and reversed the decree. 96 Iowa 748 (64 N.W. 793). On December 9, 1895, Mrs. Pitkin filed her petition for a re-hearing in that case, which is now before us for consideration. W. G. Peet having resigned as executor, Ora D. Pitkin was appointed October 7, 1893, to administer the estate. On the thirtieth day of August, 1893, pending the appeal in the last named case, Ora D. Pitkin, as executor, filed the petition in this case, showing that there is about two thousand two hundred and fifty-six dollars and fifty-two cents of the personal estate for distribution, and asking that she be authorized to pay one-third thereof, after deducting costs and expenses, to the widow, and the remainder on the legacy to Ora D. Pitkin. She shows that said remainder will be insufficient to pay said legacy in full, and asks an order to sell certain of said real estate specifically devised to W. G. Peet, to pay said legacy to Ora D. Pitkin. Matilda Peet answered, joining issue as to the amount of personal assets for distribution; but, as she does not appear in this court, we need not further notice the issues joined by her...