Thompson v. Romack
| Decision Date | 12 February 1916 |
| Docket Number | 30500 |
| Citation | 156 N.W. 310,174 Iowa 155 |
| Parties | REBECCA ANN THOMPSON, Appellee, v. E. A. ROMACK, Administrator, Appellant |
| Court | Iowa Supreme Court |
Appeal from Jefferson District Court.--C. W. VERMILION, Judge.
THIS was an action in probate on the claim of plaintiff against the administrator for the value of an 80-acre farm, because of the failure of deceased to will or deed the same to her under an express agreement to do so, for making a home for him from February, 1912, until his death, in July, 1913. Defendant filed a counterclaim in the sum of $ 1,514, for payments of money alleged to have been made by deceased to the plaintiff. The case was tried to a jury, which returned a verdict for claimant for $ 15,000, to which the court added interest at 6 per cent. from the date of the death of the intestate to the date of the verdict, and the claim was allowed as of the third class for $ 15,725. The defendant appeals.
Affirmed.
Leggett & McKemey, for appellant.
Crail & Crail and J. F. Ready, for appellee.
The issues, as stated by appellant, were whether any contract or agreement had been made, as alleged in the claim, whereby claimant was to receive the farm of the deceased, in consideration for keeping him and caring for him; and whether claimant received large sums of money from deceased, as claimed by the administrator. As stated, there was a jury trial, and the issues were decided in favor of the claimant.
1. The cause was tried at the April Term, 1914. On April 7, 1914, the defendant filed a motion to dismiss the claim or to have the same disallowed, because, as he claimed, the plaintiff had not complied with an order of court entered in the cause at a former term, another judge presiding. This order was made on February 14, 1914, and is as follows:
It is said by appellant that the statute, Sec. 3338, Code, 1897, provides the manner in which a claim against an estate shall be brought on for hearing. But that has reference to the filing of the claim, or perhaps, more properly speaking, to giving notice thereof to the administrator in the first instance. The record shows, as we understand it, that, as to the claim itself, the defendant, by his attorneys, had entered an appearance to the claim, so that the notice there provided for was waived. McLeary v. Doran, 79 Iowa 210, 44 N.W. 360.
The order made on February 14th was broader than it needed to be. Doubtless the only purpose of the court in making the order was that the cause then pending should be brought on for hearing. The plaintiff did file with the clerk, within the proper time, a trial notice that the cause would be brought on for hearing at the April Term. The rule and statute do not require that such notice shall be served on opposing counsel. Such a notice was not served. But the cause was brought on for trial at the April Term and was tried at that term, the defendant appearing and contesting the claim. Conceding that the order before referred to was not technically and strictly complied with, we are unable to see how defendant was in any manner prejudiced, and we think the trial court had some discretion in the matter. If the order of February 26th was too broad, the court could have modified it, doubtless, at a subsequent time. This was not done, but the ruling of the court in overruling defendant's motion to dismiss or disallow the claim at least had that effect. It should have been stated that the order of February 14th was ex parte. The deceased died July 10, 1913, and an administrator was appointed September 18, 1913. The claim was filed November 7th of the same year. At that time, the time for filing claims would not expire for seven months thereafter. Plaintiff was nearly 80 years of age, and lived at Newton, Kansas. In our opinion, the ruling of the district court at this point was just and right, even though the prior order had not been technically complied with.
2. It is thought by appellant that the claim was not sufficiently specific. It was not attacked in any way in the district court, so that it is doubtful whether the question has ever been properly raised. It is enough to say that we think it was sufficient, under the rule laid down in Carton National Bank v. Whicher, 163 Iowa 571, 145 N.W. 299, that such a claim is not subject generally to the rules of pleading prevailing in ordinary litigation, and that a defect which would render a petition demurrable is not necessarily fatal to a claim in probate.
3. As stated, the claim was for the value of the land. The claim is that there was a contract that she was to receive the land. This was not an action for specific performance, and plaintiff did not receive the land. A son of plaintiff's testified to a conversation between his mother (the claimant) and the deceased, stating that the substance of the conversation was that she was to make a home for him and care for him for the farm. He was to give her the farm. Defendant moved to strike the answer as a summary and incompetent, which was overruled, and this is assigned as error. The witness was not cross-examined by appellant to test his credibility. The witness was unable to give the conversation verbatim. It is not often that a witness is able to repeat the words used. Where the substance of the conversation is given, the evidence is not generally to be excluded as the conclusion of the witness. Walker v. Camp, 63 Iowa 627, 19 N.W. 802; State v. Donovan, 61 Iowa 278, 16 N.W. 130; Stiles v. Breed, 151 Iowa 86, 93, 130 N.W. 376; 17 Cyc., 794.
Objection was made to declarations made by deceased, to the effect that he had his arrangements all made by which he was to make his home with his sister and that she was to get the farm. We think this was proper. The objection urged against some of the declarations in the court below was that they were incompetent under Section 4604, Code, 1897, and that they were contrary to the statute of frauds. But these objections are not now urged. The intentions of the deceased were material and relevant to show that he understood the contract and were proper evidence in corroboration of the direct evidence of the contract. At the time the declarations and...
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