Swift v. Flynn

• Decision Date: 09 February 1910
• Citation: 145 Iowa 630,124 N.W. 626
• Parties: SWIFT ET AL. v. FLYNN ET AL.
• Court: Iowa Supreme Court

145 Iowa 630

124 N.W. 626

SWIFT ET AL.

v.FLYNN ET AL.

Supreme Court of Iowa.

Feb. 9, 1910.

Appeal from District Court, Washington County; W. G. Clements, Judge.

The opinion states the case. Affirmed in part, and reversed in part.W. H. Butterfield, for appellants.

Eicher & Livingston and S. W. & J. L. Brookhart, for appellees.

SHERWIN, J.

This action was brought for the partition of real estate owned, at the time of his death, by Martin Swift, Sr. There was no question as to the interest taken by the several parties, nor any question as to the necessity of selling to make partition. The appellant Mary Swift is the widow of the decedent and took her distributive share, and the other parties are the children and their spouses. The original decree provided for partition by sale, but the distribution was to be subject to the question of advancements to one or more of the heirs. James Swift was appointed sole referee by consent of all parties in interest and sold the property. He made partial distribution under order of the court, and his final report was objected to for reasons which will be hereinafter referred to. It was claimed that the appellant Francis Swift had received from his father an advancement of $1,000, and the trial court so found, and adjudged that it be deducted from his interest in the estate. After the evidence was all in, an amended pleading was filed, alleging that advancements had also been made to J. T. Swift, James Swift, and Martin Swift, but the trial court found against the claim. Objections were made to specific items in the referee's report, and also to his bill of $750 for services as referee. The court cut his compensation down to $450, and approved the rest of the report, except as to a few minor items. Some of the real estate was leased at the time of the death of Martin Swift, Sr., and a part of the rent accrued thereafter. But it was used for paying the debts of the estate over the protest of Mary Swift. Mary Swift, Francis Swift, A. B. Swift, Abigail Flynn, and Jane Bruty appeal.

We have given the record in this case, and the transcript of the evidence certified to us, careful consideration, and reach the conclusion that the referee is entitled to the sum allowed him as compensation for his services, and that the report as approved by the trial court is substantially correct. We think the district court was justified in ordering the referee to hold the balance of the funds in his possession until final disposition was made of the question of advancements, and that no charge should be made against the referee for interest.

The court was also right in denying the claim of advancements to J. T. Swift, James Swift, and Martin Swift. No issue of the kind was presented until after the evidence had been taken, and it would be unfair to entera decree on a question not in issue when the case was tried, because there happened to be evidence which would tend to sustain such an issue if properly presented. But aside from such consideration, the evidence is wholly insufficient to sustain the claim. The court found that an advancement of $1,000 had been made to Francis Swift some years before his father's death. This finding was based almost wholly on representations said to have been made by Francis Swift to his brothers, after his father's death. The facts seem to be that Francis had at...