Phelps v. Thompson ( 1878 )

Eothrook, Ch. J.

1. admisisciatotekment. It is conceded that the claim of the plaintiff never was formally proved and allowed, The records of the court make no mention of any action having been taken by the plaintiff further than the filing of the claim. In the petition for the sale of the land the claim was set forth as “proved and unpaid, ” but the evidence shows beyond question that this was a mistake of the person who prepared the petition. It does not appear that plaintiff was misled by this recital, nor that it in any manner influenced him in the prosecution of his claim. All that plaintiff did, as shown by the record, was to file his claim, April 11, 1868.

Bo far as the record shows he gave no further attention to it until the commencement of this action, eight years afterward.

The following stipulation was entered into by the parties in. the court below:

“That a notice of said final report was served on one L. Bullis, the general attorney of plaintiff, in June, 1874, and that about the» 1st of January, 1874, said Phelps, plaintiff, left the county of Winneshiek, State of Iowa, for Europe, and was absent from said county till after the order of discharge of the administrator, set out in plaintiff’s petition, and that during such absence said L. Bullis had these claims against the estate of said Lea in his possession, under his control as such attorney, for collection.”

Under these circumstances we think the plaintiff is properly chargeable with negligence in failing to prosecute his claim.

In regard to the charges of fraud against the administrator we have to say that we believe the evidence shows that he acted in entire good faith, and with no intent to wrong any one.

We do not review the authorities cited by counsel for appellant. An examination of them will show in cases where relief has been granted, after a final settlement, to parties holding claims against an estate, the equities were much stronger than in the ease at bar.

Affirmed.