Stevens v. Witter
| Decision Date | 27 May 1893 |
| Citation | 88 Iowa 636,55 N.W. 535 |
| Parties | STEVENS v. WITTER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Polk county; W. F. Conrad, Judge.
Proceeding to establish a claim against an estate. Claim allowed, and defendant appeals.Clinton L. Nourse, for appellant.
Henry S. Wilcox, for appellee.
1. It is contended that this claim was not “filed and proved” within the 12 months, as provided by the statute, and hence it is barred. Code, § 2421. The claim was filed within 12 months of the giving of the notice by the administrator, and proceedings actually begun to prove it up within the time, but not concluded until after the expiration of the 12 months. The claim was for $372, being a balance said to be due on a contract made with the decedent for the erection of a dwelling house in the city of Des Moines. No question was made in the district court as to the claim being barred, and we cannot now consider it.
2. It is said that the court erred in establishing the claim, inasmuch as plaintiff failed to show that anything was due thereon. Plaintiff insists that if he shows the contract between him and decedent for the erection of the house, wherein the amount to be paid and the times of payment are set forth, and if he establishes the fact that the house was in fact erected in accordance with the contract, plans, and specifications, it is sufficient to establish the liability of defendant, and, if payments were made which have not been credited, it is incumbent upon the defendant to establish such fact. Section 2410 of the Code provides: “All claims filed and not expressly admitted in writing, signed by the executor with the approbation of the court, shall be considered as denied, without any pleading on behalf of the estate.” It is said in Scovil v. Fisher, 77 Iowa, 97, 41 N. W. Rep. 583: In Lamm v. Sooy, 79 Iowa, 597, 44 N. W. Rep. 893, in speaking of this provision of the statute, the court says: “The defendant not having filed any answer to either petition, it follows from this provision that each and every allegation of both of the plaintiff's petitions was denied, and thereby the burden was cast upon him to prove each material allegation.” The denial which the law interposes makes it necessary for the plaintiff to show that he had a valid claim against the estate of decedent,--that something was due him. The denial goes to the entire claim. It was the purpose of the law to protect estates against any but legitimate claims, and to that end the burden is cast upon the claimant to establish his claim. This cannot be done by plaintiff's showing that he has carried out a contract which he had entered into with decedent, by the terms of which decedent was to pay him a certain sum of money. It seems to be conceded in argument that there was no evidence showing the amount due plaintiff. Under such circumstances, the court should not have established plaintiff's claim against the estate. It is said that payment is an affirmative defense, and must be pleaded and proven by the one claiming it has been made. That this is the general order may be conceded, but the provision of the statute above quoted renders such rule inapplicable to this class of cases, and imposes on the claimant the burden of showing the amount due.
3. It appears that the claim of plaintiff is for a balance alleged to be due him in a house built for decedent, McClelland, in the year 1885. It is claimed, and the evidence tends to show, that some time prior to the erection of the house decedent entered into a written contract with plaintiff for its erection. It also appears that the house was to be built in accordance with certain plans and specifications agreed upon...
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Ah How v. Furth
...witness, and was, we think, entirely competent. Foggeth v. Gaffney (S. C.) 12 S.E. 260; Dysart v. Furrow (Iowa) 57 N.W. 644; Stevens v. Witter (Iowa) 55 N.W. 535; Lerche v. Brasher, 104 N.Y. 157, 10 N.E. 58. For same reason, and upon the same authorities, respondent's Exhibit A, which purpo......
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Anderson v. Oleson (In re Berdell's Estate)
...sustaining appellants' contention. See 40 Cyc. §§ 2325, 2328; McCorkendale v. McCorkendale, 111 Iowa, 314, 82 N. W. 754;Stevens v. Witter, 88 Iowa, 636, 55 N. W. 535. But the question has been decided in this state adversely to the appellant's contention. This court long ago held that the s......
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In re Estate of F. A. Berdell, Deceased
...sustaining appellants' contention. See 40 Cyc. §§ 2325, 2328; McCorkendale v. McCorkendale, 111 Iowa, 314, 82 N. W. 754; Stevens v. Witter, 88 Iowa, 636, 55 N. W. 535. But the question has been decided in this state adversely to the appellants' contention. This court long ago held that the ......