In re Estate of Wonn , 80 Iowa 750 ( 1890 )

Robinson, J.

— H. A. Wonn died on the twenty-sixth day of July, 1888, and Sarah E. Wonn was appointed administratrix of his estate. She published notice of her appointment, the first publication being made on the second day of August, 1888. In October of the same year, she paid in full certain indebtedness of the decedent, amounting in the aggregate to $1,099.53, made up of the following items : One note to the State Bank for $230.10 amount due as treasurer to the district township of Soap Creek, $668.43; orders and checks paid on account of the district township, two hundred and one dollars. The estate of decedent is insolvent. On the twentieth day of April, 1889, the administratrix filed a report and application in the proper court which showed the payment of the sums aforesaid; that when she paid them the parties to whom they were paid agreed to file claims for such sums within six months from the first publication of the notice of her appointment, but that they had failed to do so. The application asks that the claims aforesaid be treated as of the third class, and that the proper order to that end be made. The district court ordered that the claims be treated as of the third class, and that the administratrix be allowed credit for pro-rata dividends on account of the payments she had made.

1. Estates of decendents: orders: oral objections: appeal. I. The appellee has filed a motion to dismiss the appeal on the ground that appellants filed no pleading nor written objection nor exception to the rePorf an<3- aPpUcation in the district court, an^ raised no issue from which they can appeal. The record fails to show that appellants filed any pleading, written objection or exception in the court below ; but it does show that the right of the administratrix to the allowance demanded was denied by appellants. They appeared in the proceeding, and offered evidence without objection. The court found and made of record certain material facts fyy their consent, and they excepted to the finding and order of the court. The court found that they were creditors of 'the estate, and that their claims were of the third class. Under these circumstances the appellee cannot now, for the first time, object that the appellants were not parties to the proceeding in the district court, and for that reason have their appeal dismissed. Hervey v. Savery, 48 Iowa, 322; Davis v. Nolan, 49 Iowa, 686; Trayer v. Reeder, 45 Iowa, 273; Wire v. Foster, 62 Iowa, 117; Williams v. Wilcox, 66 Iowa, 67; Martyn v. Lamar, 75 Iowa, 236.

2. —: payment of claims not filed: relief by order of court: priority. II. It is not denied that the claims in question were valid as against the estate of decedent, and that ^hey would have belonged to the third class bad they been filed formally within six months from the date of the first publication of the notice of the appointment of an administratrix. It is not alleged that there was any fraud or improper intent on the part of the administratrix in paying them as she did. But appellants contend that, as they were not formally filed within the statutory period aforesaid, they cannot be treated as claims of the third class, and, since the estate is insolvent, they, as creditors of that class, are entitled to be paid in full before any payment can be allowed on the claims in suit. Section 2408 of the Code provides for the filing of claims, and for notice of the hearing thereof where they have not been approved by the administrator. When .they have been so approved, they may be allowed by the clerk without such notice. Claims filed are to be entitled in the name of the claimant against the executor. Code, sec. 2409. When filed, and not expressly admitted in writing signed by the executor, with the approbation of the court, they are to be considered as denied without pleading on behalf of-the estate. Section 2410. After the expiration of the time for filing claims of the third class the executors are required to proceed to the payment of claims. Section 2422. No claims of one class can be paid until those of a previous class are satisfied. Section 2424. Within their respective classes, claims are to be paid in the order in which they were filed. Section 2426. But, where the available funds are not likely to be sufficient to pay all the claims of any one class in full, pro-rata payment shall be made. Section 2427. These provisions of the statute are designed, in large part, to enable parties interested to investigate claims made, that invalid ones maybe rejected; to preserve such a record of claims presented as will fix the order of their' payment; and to facilitate the settlement of estates. It is the duty of the executor to investigate all claims made, and to disallow those which for any reason should not be paid by the estate. He has no right to disapprove a valid claim, and should pay all claims duly approved in the order provided by statute. The claims in controversy were not filed with the clerk, but were presented to the administratrix, and approved by her, within the time prescribed for filing claims of the third class. They were valid claims, which neither the clerk nor court could then have disapproved. The material purposes of the statute were accomplished. A record had not been made, it is true; but the claims were, in effect, assigned to the class to which they belonged, The appellants do not claim that they have been in any manner prejudiced by the omission to file the claims with the clerk within the statutory period of six months, but insist that, by reason of that omission, they have acquired a vested right to a larger dividend than-they will receive if the claims are allowed as of the third class. But, since the spirit of the statute has been complied with, we do not think they should be permitted to profit by the omission of a technical requirement which did not in any manner prejudice their interests. In making the payments in question, the administratrix assumed the burden of proving that the claims were valid, and should have been paid. She also incurred the risk of paying more than the assets of the estate would warrant, and is not entitled to an allowance for the amount she has disbursed in excess of the dividends which the court may order paid. But the payments were made on valid claims presented in time to be treated as of the third class, for the benefit of the estate, and we think the administratrix is entitled to an allowance therefor to the amount of the dividends to which the claims treated as of the third class will be entitled. See Crispin v. Winkleman, 57 Iowa, 526; Portman v. Klemish, 54 Iowa, 198; Lockhart v. White, 18 Tex. 107; Roberts v. Rogers, 28 Miss. 154. The order of the district court is -

Aeeirmed.