Wise v. Outtrim

Decision Date09 July 1908
CourtIowa Supreme Court


Appeal from District Court, Greene County; Z. A. Church, Judge.

The plaintiff presented a claim against the estate of James Outtrim for personal services rendered in the life of the deceased. The claim having been allowed in the sum of $1,255, the executrix appeals. Reversed.G. S. Toliver, J. A. Henderson, and Wilson & Albert, for appellant.

Owen Lovejoy and Howard & Howard, for appellee.


James Outtrim died testate May 29, 1904, and his widow was appointed executrix of his will August 24, 1904. Notice of her appointment was published September 1 and September 8, 1904. On May 10, 1905, the plaintiff filed her duly verified claim against the estate in the following words, omitting caption and verification:

“The said Kittie D. Wise claims of the said Mrs. Dovey Outtrim, as executrix of said estate, the sum of $2,500.65 as per the following statement:

November 17, 1878. Commenced doing work and labor in housekeeping and nursing for James Outtrim, deceased.

                ¦Worked until February 17, 1884, being 275 weeks, at $4 per week¦$ 1,100 00 ¦
                ¦Interest at 6 per cent                                         ¦1,400 65   ¦
                ¦Total                                                          ¦$ 2,500 65”¦

On July 22, 1905, plaintiff filed a written statement asking the allowance of her claim previously filed and alleging that said James Outtrim in his lifetime promised and agreed to make provision, for payment for plaintiff's services, out of his estate after his decease. To this claim defendant demurred, on the ground that plaintiff's right of action, if any she ever had, appears to be barred by the statute of limitations; that the alleged services are not shown to have been rendered in consideration of or reliance upon the promise pleaded in the petition for allowance; that the claim was not filed within 6 months after publication of the notice of defendant's appointment as executrix, and no notice of such filing was ever served on said executrix within 12 months, as provided by statute; that the petition for allowance is not entitled in the manner provided by the statute. The demurrer was overruled, and thereupon defendant filed a motion showing that plaintiff was a nonresident of Iowa, and asking that she be required to give a cost bond. This motion was also overruled, and defendant answered the petition, pleading the statute of limitations and denying the claim made by the plaintiff. It is further pleaded that during the time when the alleged services were rendered by the plaintiff, she was a member of the family of the testator, and that the service rendered by her was performed in that capacity, without promise or expectation of payment or compensation other than her support and maintenance, which she, in fact, did receive. Other matters are pleaded, but they are, in substance, the statements of grounds of demurrer to the plaintiff's claim, and will be considered in their proper place.

While making very numerous objections to the rulings of the trial court, counsel for appellant say in argument that “the principal controversy in the case is whether the provisions and requirements of law, with respect to the statement of claims against estates of deceased persons, the filing of the same, and giving notice thereof, are not to be observed and may be disregarded as in the case at bar.” To this phase of the case we therefore give first attention.

1. It will be seen from the statement of facts that the plaintiff filed her claim May 10, 1905, about 8 months after the publication of notice of the executrix's appointment, and it therefore ranks as a claim of the fourth class. It is conceded that this paper was entitled in due form, and that notice thereof was duly given, shortly after the filing of the claim. On July 22, 1905, before the expiration of one year from the appointment of the executrix, the plaintiff filed the written petition already spoken of. That petition is in the following form:

“In the district court of the state of Iowa, in and for Greene county. August Term, 1905. In Probate. In the Matter of the Estate of James Outtrim, Deceased. Petition for Allowance of Claim. Your petitioner Kittie D. Wise states: That on and between the 17th day of November, 1878, and the 7th day of February, 1884, at the request of James Outtrim, she performed work and labor for him, as stated in her verified claim, filed in this court on the 10th day of May, 1905. That there is justly due and owing your petitioner, from the estate of said James Outtrim, the sum of $2,500.65, as shown by said verified claim, which is made part hereof, no part of which has been paid or in any manner satisfied. That the said James Outtrim during his lifetime frequently promised and agreed to and with your petitioner that he would make provision for payment in full for her services, from his estate after his decease. That said deceased made no provision for said payment, and your petitioner asks that her claim be allowed against said estate of James Outtrim, in the sum of $2,500.65, including interest, and the executrix of said estate be ordered to pay the same.”

This writing was not verified, and no notice was given of its filing, except such notice as is imparted by the filing of a pleading or amendment in proceedings pending in court. It is the position of appellant that said petition is not a mere amendment to the original claim, or another statement of the same claim in more extended and formal terms, but that it should be regarded and treated as an independent claim which must stand or fall without reference to the matter previously filed. Starting with this assumption, defendant states that this petition is defective in form, because not properly entitled in the name of the claimant as plaintiff, against the executrix as defendant, and because it is not verified. It is also urged that, even if objection to the form of pleading be waived, notice of its filing was not served within the first year of administration as required by Code, § 3338. We are of the opinion, however, that the assumption that the claim filed May 10, 1905, and the written petition for allowance filed July 22, 1905, are distinct claims, and not two statements of the same claim, cannot be upheld. While the petition does not in express words style itself an amendment, or substitute for the claim originally filed, it does so state in substance. It expressly alleges the petitioner's claim to be for the services performed by her “as stated in her claim filed on the 10th day of May, 1905.” The pleading is clearly an attempt to state plaintiff's original claim in a more formal manner, and not to state another and distinct claim, and the district court did not err in so treating it. In their argument upon this point counsel for appellant say that the claim as originally filed is based upon an implied contract, while in its amended form it is based upon an express contract. Even if this were a true interpretation of the record, it would not follow that the amendment sets up such new claim or cause of action as would permit the intervention of the statute of limitations where the period has expired since the filing of the original claim. See Kuhn v. Brownfield, 34 W. Va. 252, 12 S. E. 519, 11 L. R. A. 700.

But it is hardly correct to say that the claim as originally filed is founded upon an implied contract. The statement is a mere skeleton account, stating no facts from which the court or jury could determine whether the services for which payment is demanded were rendered without any agreement as to the time of payment therefor, or under an express agreement providing for the payment at some future date. Doubtless, in this form, the statement was subject to a motion for a more specific showing, but before any such motion was made the amendment was filed, alleging a promise by which the testator bound himself to provide for the payment out of his estate at his decease. There is no necessary inconsistency between the claim as originally filed and as stated in the written petition. It is true that as originally filed the claim may have been demurrable, as being apparently barred by the statute of limitations, while the amendment states additional matter, which, if true, prevents the application of the bar. But this additional allegation does not destroy the identity of the claim. Due notice of the claim was given at or about the time of the original filing, and appellant appeared thereto by counsel. There is some dispute as to the time when counsel appeared, and whether their appearance was to the claim as amended, or simply to the matter originally filed. The controversy in this respect is of an immaterial character. The defendant was in court to defend against a claim of which she had been duly notified, and was bound to take notice of amendments made thereto. When the defendant has been duly served with the notice of filing of a petition or claim, and appears to resist or defend, there is no rule or statute which requires a new original notice to be given every time an amendment to the petition is filed. Moreover, in the case at bar the question whether co...

To continue reading

Request your trial
10 cases
  • State ex rel. Steinfort v. District Court of Fourth Judicial Dist. in and for Ravalli County
    • United States
    • Montana Supreme Court
    • December 4, 1940
    ... ... claim which was filed in time, where the amendment merely ... indicates that the claim is not barred on its face ( Wise ... v. Outtrim, 139 Iowa 192, 117 N.W. 264, 130 Am.St.Rep ... 301) or makes some other addition or alteration, provided the ... essential ... ...
  • Hurd v. Varney
    • United States
    • New Hampshire Supreme Court
    • January 2, 1929
    ...was in no way inconsistent with the original demand. This point was specifically decided by the Iowa court in Wise v. Outtrim, 139 Iowa, 192, 117 N. W. 264, 130 Am. St. Rep. 301; and with the conclusion reached in that case we are in full 3. Subject to defendant's exception, a witness for t......
  • State ex rel. Steinfort v. District Court of Fourth Judicial Dist in and for Ravalli County
    • United States
    • Montana Supreme Court
    • December 4, 1939
    ... ... limitations and when the essential grounds of recovery are ... left substantially unchanged. Wise v. Outtrim, 139 ... Iowa 192, 117 N.W. 264, 130 Am.St.Rep. 301. Section 9187, ... Rev.Codes is sufficiently broad to permit such amendments ... ...
  • State ex rel. Steinfort v. Dist. Court of Fourth Judicial Dist. In
    • United States
    • Montana Supreme Court
    • December 4, 1940
    ...a claim which was filed in time, where the amendment merely indicates that the claim is not barred on its face (Wise v. Outtrim, 139 Iowa 192, 117 N.W. 264, 130 Am.St.Rep. 301) or makes some other addition or alteration, provided the essential grounds of recovery are left substantially unch......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT