Reed v. Reed

• Decision Date: 18 May 1895
• Parties: REED v. REED ET AL.
• Court: Iowa Supreme Court

94 Iowa 569

63 N.W. 329

REED

v.REED ET AL.

Supreme Court of Iowa.

May 18, 1895.

Appeal from district court, Hardin county; D. R. Hindman, Judge.

Plaintiff asks an order to sell an undivided one-half of the homestead property of herself and deceased husband, to pay debts of said estate. Defendants, the brothers and sisters of deceased, and only heirs, answered, alleging, among other defenses, that this action is barred by the statute of limitations. As the other defenses are not insisted upon in argument, they need not be noticed. Decree was entered granting an order as prayed. Defendants appeal. Affirmed.C. E. Albrook, for appellants.

Huff & Ward, for appellee.

GIVEN, C. J.

1. Appellants say in argument: “This case involves the settlement of but one proposition we care to discuss: Is the right of action of plaintiff barred by the statute of limitations?” The facts appearing upon this question are these: S. A. Reed died July 1, 1890, leaving the plaintiff, his widow, and the defendants, his brothers and sisters, the only heirs surviving him. The property described was occupied by deceased and plaintiff as their homestead at and for a long time prior to his death, and by the plaintiff ever since. Plaintiff was appointed administratrix of the estate on July 5, 1890, and letters issued to her on July 7th. Notice of her appointment was published from July 8th to 29th, and an inventory and list of heirs and description of real estate filed September 1, 1890. August 26, 1890, Hardin county filed a claim for $1,142.13 for money expended by it for keeping deceased at the hospital for the insane, which claim was allowed by the court on the 18th day of October, 1890. On June 22, 1891, plaintiff was granted leave to institute proceedings in the courts of Nebraska for the sale of real estate there situated. The assets on hand, including the Nebraska land, are insufficient to pay said claim of Hardin county; therefore plaintiff filed this petition on the 9th day of September, 1893.

In McCrary v. Tasker, 41 Iowa, 258, this court said: “Our statute contains no limitation of the time within which an executor must make application for the sale of real estate for the payment of debts. But it is manifest that the right ought not to continue without limitation. There must be some time when the heirs may take possession of the real estate, and safely occupy, improve, and dispose of it as their own.” It is further stated on page 260, as the conclusion arrived at, as follows: “By analogy to the rule established in Maine, New Hampshire, Massachusetts, and Illinois, we are disposed to hold that, as a general rule in this state, an application of the executor to sell real estate of the decedent for the payment of debts will not be sustained, unless made within eighteen months from the time the executor gives notice of his...