Roger v. Gillett

• Decision Date: 11 June 1881
• Parties: ROGER v. GILLETT AND OTHERS.
• Court: Iowa Supreme Court

56 Iowa 266

9 N.W. 204

ROGER

v.GILLETT AND OTHERS.

Supreme Court of Iowa.

Filed June 11, 1881.

Appeal from Des Moines circuit court.

Action for the partition of two parcels of real estate, one containing 40 and the other 20 acres belonging to Comfort Gillett at his decease, in 1864. The said Comfort left surviving him seven daughters and two sons, or their heirs, all of whom are parties to this action. The plaintiff claims to be entitled to the one-ninth part of said real estate. The petition states that one of the tracts was the homestead of said Comfort Gillett at the time of his death, and that his widow elected to hold and occupy said homestead for and during her life; that she did so, and died in 1879; that Delos A. Gillett has conveyed his interest in the real estate to Mary Gillett. This action was commenced in March, 1880, and the defendants Delos A. and W. H. Gillett alone answered the petition. They admitted the real estate was inherited from Comfort Gillett, and it was alleged he had executed a written instrument as his last will, which was filed for probate in the proper court; that by the terms of said will the said Delos and W. H. Gillett were to receive a larger portion of the estate than the other legatees, and that the latter executed a written agreement whereby it was provided, if said will was set aside and declared inoperative, they would allow the said Delos and W. H. Gillett $200 more than their shares, otherwise would be,--the same to be deducted pro rata from the shares of the heirs other than the answering defendants; that said will was set aside by the proper tribunal, and all the estate, real and personal, of said Comfort Gillett, except that sought to be partitioned, has been disposed of, and that the partition sought in this action is the final distribution of the estate; that the real estate is of such a character that it cannot be divided, but will have to be sold. Wherefore the said defendants claim they are entitled to the amount due them under the written agreement, that the same be adjudged a lien on the real estate; and they also ask general relief. A demurrer to the answer was sustained, and defendants electing to stand thereon a decree was entered, and they appeal.John C. Power, for appellants.

Hull & Huston, for appellee.

SEEVERS, J.

The plaintiff and the other daughters of Comfort Gillett executed, in 1866, the written agreement referred to in and made a part of the answer, and thereby it was provided, in the event the instrument purporting to be the will of said Comfort was set aside: “We will allow proportionately, out of the portion coming to us, the daughters of said Comfort, enough to make $200 to W. H. Gillett and D. A. Gillett each. In other words, said W. H. and D. A. Gillett shall receive, on final distribution, each $200 more than what his distributive share would otherwise be.” One ground of the demurrer in substance was that the relief asked in the answer is barred by the general statute of limitations. By this we understand the claim to be, the cause of action was barred in 10 years after it accrued, and that on the face of the pleadings it appeared such time had elapsed when...