Woodward v. Laverty

Baldwin, C. J.

The court erred in sustaining the defendants’ demurrer to plaintiff’s replication. Section 2404, Revision of 1860, provides the order in which claims against an estate shall be paid by the administrator. The next section provides that all claims, after the fourth of the above classes (and the defendants’ claim falls within this class), not filed and proved within one year and a half of *383 the giving of the notice aforesaid, are forever barrtd, unless the claim is pending in the District or Supreme Court, or unless peculiar circumstances entitle the claimant to equitable relief.

It is not alleged that this claim was pending in either of said courts. Nor do the defendants undertake to make any satisfactory showing that would entitle them to equitable relief.

% It may be said that the showing by defendant in relation to the fact that the defendant supposed the note had been applied by Kitchell, &c., and was given up to the adminis-' trator, was sufficient to take the claim out of the statute; ' The proof in relation to this averment was 'introduced to establish a settlement, and not to establish any claim for relief.

We are not prepared to hold that there was error in the ruling of the court in giving to the defendant the opening and closing argument, or in refusing to tax the cost against defendant to the time a portion of the answer was withdrawn. This was so much a matter of discretion that an appellate court will not interfere with it.

The court erred in the admission of the testimony of Mrs. Kitchell. It was improper to permit her to testify as 1 to what her understanding was of the declarations of her husband. Also, -in the admission of the evidence of the defendant Igow as to the purpose of executing a note by Laverty and others to defendant Igow, and in the admission of the note in evidence. These were matters between the defendants, and without any evidence tending to show that the plaintiff had any knowledge of this arrangement.

If the 3d and 10th instructions asked by the plaintiff, and refused by the court, contained the proposition, as is stated by counsel under their 6th point, which is, that a debtor to an insolvent estate cannot buy claims of creditor’s to set off against his debt, such refusal would be clearly erroneous.

*384 It has been ruled by tbis court in tbe case of Cook v. Lovell, 11 Iowa, 81 , that in an action by an administrator for money due his intestate demands against tbe intestate, and acquired by tbe defendant after bis death, cannot be pleaded as a set-off.

Tbe defense in tbis case is twofold. First, it is claimed that tbe administrator took this note in absolute payment of tbe debt; second, that if not, it should now be allowed as a set-off.

Whether tbe administrator could thus take a claim not probated, in full payment and satisfaction of a debt due tbe estate, is a question not properly raised by tbe instruction. On tbe contrary, tbe affirmative of tbis proposition is conceded by tbe first instruction asked. Tbe 3d and 10th instructions each contained two distinct propositions, one of which in each is contradictory of tbe proposition conceded by tbe plaintiff in tbe first instruction asked and given. Tbe court did not, therefore, err in refusing to give tbe instructions asked in tbis form.

Holding, as we do, that tbe statute of limitations was well pleaded, tbe cause on reversal will be in such a situation that it is not important to consider tbe other instructions alleged to be erroneous.

Reversed.