Widner v. Wilcox

• Decision Date: 11 July 1906
• Citation: 108 N.W. 238,131 Iowa 223
• Parties: N. A. WIDNER, Executrix of the Estate of SUSAN HANKINS, Deceased, v. D. O. WILCOX, Administrator of the Estate of THOS. PASLEY, Deceased, Appellant
• Court: Iowa Supreme Court

108 N.W. 238

131 Iowa 223

N. A. WIDNER, Executrix of the Estate of SUSAN HANKINS, Deceased, v. D. O. WILCOX, Administrator of the Estate of THOS. PASLEY, Deceased, Appellant

Supreme Court of Iowa, Des Moines

July 11, 1906

Appeal from Poweshiek District Court.--HON. W. G. CLEMENTS, Judge.

THE defendant was appointed administrator of the estate of Thomas Pasley, deceased, June 6, 1901. On August 7th of the same year Susan Hankins filed her claim with the clerk of the district court in words following: "July 13, 1901. Said estate debtor to plaintiff (Susan Hankins) to cash deposited with decedent in October, 1895, and received by decedent as trustee and custodian for claimant for the sum thus left and deposited with decedent, $ 300.00." This was duly verified. The administrator filed a denial, and in November 1902, the claim was dismissed for want of prosecution. In September, 1903, Mrs. N. A. Widner, a daughter of deceased filed a petition praying for the allowance of the claim and stating excuses for delay. To this the administrator answered, pleading a former adjudication, and that the claim had not been filed in time. In February, 1904, there was filed an amendment to the petition in which the execution of a power of attorney and the assignment of the claim to Mrs Widner, until her appointment as executrix of the estate of Mrs. Hankins and such appointment, were pleaded. Each party then indulged in a demurrer. These were overruled, and on March 22d the plaintiff, by way of reply, repeated all that had been said in the petition and amendment, and, in addition thereto, asked that the dismissal of the claim as first filed be set aside because of fraud practiced by the administrator. A motion to set such dismissal aside and resistance thereto were also filed on the same day. The cause came on for trial April 6, 1904, and at the conclusion of the evidence on the following day the defendant filed an amendment to the answer pleading in bar the statute of limitations. Four days later plaintiff moved to strike this from the files because of delay in filing, and on the ground that the defense had been waived. There appears to have been no ruling on this motion. The court entered an order setting aside the dismissal and allowing the claim without interest. The defendant appeals.

Reversed.

Tom H. Milner, for appellant.

W. J. Lamb, for appellee.

OPINION

LADD, J.

The evidence leaves no doubt but that plaintiff's decedent Susan Hankins, loaned Thomas Pasley, of whose estate the defendant was appointed administrator June 6, 1901, the sum of $ 300 not later than July, 1896. The contract was in parol. The claim therefor was not filed with the clerk of court until August 7, 1901, nor notice thereof accepted by the administrator until July, 1902. More than five...