Ritter v. Dagel

• Decision Date: 06 February 1968
• Docket Number: No. 52737,52737
• Citation: 261 Iowa 870,156 N.W.2d 318
• Court: Iowa Supreme Court
• Parties: Camilla Conley RITTER, Appellant, v. Roger DAGEL, Ralph Newport, Arthur Conley, Jean Conley Brokaw, and Marcia Conley Grupp, Appellees.

Page 318

156 N.W.2d 318

261 Iowa 870

Camilla Conley RITTER, Appellant, v. Roger DAGEL, Ralph Newport, Arthur Conley, Jean Conley Brokaw, and Marcia Conley Grupp, Appellees.

No. 52737.

Supreme Court of Iowa.

Feb. 6, 1968.

Lawyer, Lawyer, Ray & Crouch, Des Moines, for appellant.

Joy, Wifvat & Poffenberger, Perry, for appellees.

GARFIELD, Chief Justice.

This appeal involves an important question as to the time within which a law action to set aside probate of a will under Iowa Probate Code, chapter 633 Code 1966, must be commenced and the manner of commencing it.

More particularly, the question is whether the statute of limitations for the commencement of such an action is tolled by the filing of the petition or is plaintiff also required to deliver an original notice thereof to the sheriff of the proper county with intent that it be served immediately.

The trial court held merely filing the petition is insufficient. We affirm the decision.

I. On September 7, 1965 Arthur T. Conley, a brother, filed with the clerk of the district court of Dallas County the will of R. M. Conley, deceased, together with his petition for probate thereof and appointment of petitioner and Roger Dagel as executors. On the next day the will was admitted to probate and Arthur T. Conley and Roger Dagel were appointed executors by the clerk of the court. No notice of filing the petition or hearing thereon was given prior to making the order.

The appointees filed their oaths as executors, letters of appointment issued and notice of probate, dated September 8, was published on September 10 and 17, 1965 in strict compliance with Code section 633.304. (References, unless otherwise indicated, are to Iowa Code 1966.)

The notice, addressed to all persons interested in the estate, recited: 'any action to set aside said will Must be brought in the district court of said county within one year from the date of the second publication of this notice, or thereafter be forever barred.' (emphasis added) This is the exact language of the form for such notice found in section 633.304 and required thereby.

Plaintiff, a daughter, on September 10, 1966 filed her petition at law to set aside probate of the will as not properly executed and the result of undue influence. On the same date an original notice of the filing of the petition was delivered to the sheriff of Dallas County. However, the notice recited the petition was on file with the clerk of the district court of Polk County and required appearance 'before said Court at Des Moines, Polk County.'

On September 20, 1966, a year and three days after the date of the second publication of the notice of probate of will and appointment of executors above referred to, a proper original notice of the filing of plaintiff's petition to set aside probate of the will was delivered to the sheriff of Dallas County to be served on Roger Dagel, a co-executor, only defendant to the action residing in Dallas County. This notice was served on Dagel September 22, 1966.

On September 29, 1966 defendants to plaintiff's action filed their special appearance thereto challenging the court's jurisdiction on the ground the first original notice, requiring appearance at Des Moines, county seat of Polk County, was void. In her resistance to this special appearance plaintiff asserted that merely filing her petition to set aside probate of the will within one year after the date of the second publication of the executors' notice thereof conferred jurisdiction on the Dallas County court to determine the matter, irrespective of the contents of the first original notice.

Defendants' special appearance was sustained as to the original notice first served upon them. No complaint has been made of this ruling nor is it here contended, as it was in the resistance to the special appearance just referred to, it was unnecessary to serve, or deliver to the sheriff for service, an original notice of plaintiff's action.

Thereafter defendants filed answer to plaintiff's petition alleging it was barred by limitations because no valid original notice thereof was served or placed for service until more than a year from the date of the second publication of the notice of probate.

In her reply to defendants' answer plaintiff alleged the order admitting the will to probate was entered without notice or appearance by anyone, her petition to set aside probate was filed before entry of an order approving the final report and therefore the order for probate was reviewable by the court. Also that filing plaintiff's petition on September 10, 1966 met the requirement of code section 633.309.

On defendants' motion for adjudication of law points under rules 105 and 176 Rules of Civil Procedure the trial court held, as indicated at the outset hereof, that merely filing plaintiff's petition to set aside probate of the will within a year after the date of the second publication of notice of probate of the will, without at least delivering original notice thereof to the sheriff of the proper county with intent that it be served immediately, was insufficient to toll the statute of limitations for the commencement of such an action as plaintiff's.

II. Plaintiff relies upon two code sections, principally 633.37: 'All orders entered without notice or appearance are reviewable by the court at any time prior to the entry of the order approving the final report.'

The quoted section codifies the rule applied by many decisions of ours under sections 638.9, 638.10 Iowa Code, 1962 and earlier codes prior to the adoption of our present Probate Code by the Sixtieth G.A. in 1963. In re Estate of Swanson, 239 Iowa 294, 305--307, 31 N.W.2d 385, 392 and citations; In re Estate of Jenkins, 245 Iowa 939, 941, 65 N.W.2d 92, 93 and citations.

The other section on which plaintiff relies, although apparently less strongly, is 633.309: 'Time within which contest must be filed. A petition to contest or set aside the probate of a will must be filed in the court in which the will was admitted to probate within one year from the date of second publication of notice of admission of such will to probate and not thereafter.'

From this it is argued in effect the statute of limitations for bringing such an action as plaintiff's is tolled by merely filing the petition in the proper court within the year even though original notice thereof is not served or delivered for service to the sheriff of the proper county within such time.

III. In seeking the meaning of the code sections plaintiff relies on and others, the entire Probate Code of which they are part should be considered. 'Each section must be construed with the act as a whole and all parts of the act considered, compared and construed together.' Bruce v. Wookey, Iowa, 154 N.W.2d 93, 94, citing Manilla Community School District, etc. v. Halverson, 251 Iowa 496, 101 N.W.2d 705. See also Ahrweiler v. Board of Sup'rs, 226 Iowa 229, 231, 283 N.W. 889; Everding v. Board of Education, 247 Iowa 743, 747, 76 N.W.2d 205, 208 and citations; Rath v. Rath Packing Co., 257 Iowa 1277, 1284--1285, 136 N.W.2d 410, 414.

Bruce v. Wookey holds a claim against a decedent's estate was barred under our Probate Code for failure of claimant to file request for hearing within 20 days after the claim was disallowed. Sections 633.440, 633.442.

The Manilla Community School District opinion, supra, points out it is not permissible to rest the interpretation of a legislative act upon any one part or to give undue effect thereto. (pages 501--502 of 251 Iowa, page 708 of 101 N.W.2d.)

We think the rule expressed in Bruce v. Wookey and many other Iowa precedents leads to an affirmance of the trial court's decision here.

IV. Section 633.304 provides in part: 'Notice of probate of will with administration. On admission of a will to probate, the executor shall, as soon as letters are issued, cause to be published once each week for two consecutive weeks in a daily or weekly newspaper of general circulation published in the county in which the estate is pending, a notice of admission of the will to probate and of the appointment of the executor, In which shall be included a notice that any action to set aside the probate of said will must be brought within one year from the date of the second publication of said notice or thereafter be forever barred, and there shall also be included therein a notice to debtors to make payment, and to creditors having claims against said estate to file them with the clerk within six months from the second publication of said notice, or thereafter be forever barred. (emphasis added)

'Such notice shall be substantially in the following form:'

This statute proceeds to set out in detail the form of notice which shall be published. It designates the court and county in which the will was probated, gives testator's name, is addressed to all persons interested in his estate, gives the date on which the will was admitted to probate and the name of the executor appointed. This recital is included in the statutory notice: 'Any action to set aside said will Must be brought in the district court of said county within one year from the date of the second publication of this notice, or thereafter be forever barred.' (emphasis added)

Following the recital just quoted, the statutory form further provides for notice that all persons indebted to the estate are requested to make immediate payment to the executor and all creditors shall file their claims 'within six months from the second publication of this notice (unless otherwise allowed or paid)' or 'such claim shall thereafter be forever barred.'

It is significant that the provision we have italicized in the first paragraph of 633.304 and the language similar thereto quoted from the statutory form for notice were not included in the Probate Code enacted by the Sixtieth G.A. in 1963. Both the italicized provision in the first paragraph and the language similar thereto in the...