Linton v. Crosby

• Decision Date: 16 June 1883
• Citation: 16 N.W. 342,61 Iowa 401
• Parties: LINTON v. CROSBY.
• Court: Iowa Supreme Court

61 Iowa 401

16 N.W. 342

LINTON

v.CROSBY.

Supreme Court of Iowa.

Filed June 16, 1883.

Appeal from Clayton circuit court.

The plaintiff, Mary Ann Linton, as widow of the defendant's testate, applied for an order of probate directing the defendant, as executor, to pay her her distributive share in the personalty belonging to the estate. Upon hearing, the court made an order that the defendant pay the plaintiff the sum of $500 as part of her distributive share of the personalty, expressly providing that the order was not to be regarded as fixing the amount of her distributive share, and was not to prejudice a future application for any balance that might be found due. Both parties appeal, the defendant perfecting his appeal first.J. O. Crosby and L. O. Hatch, for appellant.

Murdock & Larkin, for appellee.

ADAMS, J.

1. We do not understand the defendant as contending that the court erred in respect to the amount which he was ordered to pay the plaintiff, provided she is entitled to anything. The only question in respect to the amount (provided the plaintiff is entitled to anything) appears to be raised by the plaintiff. She contends that the court, instead of remitting her to a future application for whatever balance may be due, should have proceeded to ascertain what her full share is, and should have ordered its payment; or, if her full share cannot be ascertained in this proceeding, should at least have ordered the payment of a much larger sum than $500. But in our opinion there is nothing in the order made of which the plaintiff can properly complain. The precise amount to which the plaintiff is entitled, if anything, cannot be ascertained until completed administration and final settlement of the executor's accounts. It can hardly be said, indeed, to be entirely certain that the personal estate will not be wholly exhausted in the payment of debts and the expenses of administration. This, it is true, seems highly improbable. The year allowed for filing claims has long since expired, and they amount to much less than the personal estate; but it is not certain that other claims may not be made against the estate, under circumstances which will entitle the claimants to equitable relief. In refusing, therefore, to order the payment of more than $500, we think that the court did not err.

2. The plaintiff, in her petition, prayed for an allowance of 6 per cent. interest. The court made no order in respect to interest, and the plaintiff assigns its failure to do so as error. The order made was doubtless based upon the theory that the defendant could safely pay $500, irrespective of the question of interest. In this we think that there was nothing of which plaintiff can properly complain. If she is entitled to interest upon her distributive share, it will not be lost to her by reason of the order, but will enhance her balance. There was, indeed, no ground for computing interest on the $500, under the circumstance under which it was allowed, and it could not be computed on the balance, because that was unknown. The question, then, as to whether the plaintiff was entitled to interest was, in some sense, an abstract one, and was properly reserved, we think, to be determined when a computation of interest, if any, was to be made.

3. The plaintiff, in her petition, prayed that the defendant be ordered to file a full report of the condition of the estate within 30 days. The court made no order in that respect, and the plaintiff assigns the failure to do so as error. It is not shown to our satisfaction that the defendant had not at that time filed all the reports which could properly be required of him under the circumstances.

4. We come next to consider the questions presented by the defendant's appeal. He insists that the court erred in ordering that the plaintiff should be paid anything. The testator made a complete disposition of his personal property by his will, and ...