Burns v. Keas

Wright, J.

This case is not important in itself, and yet it presents several questions (owing to the state of the *18 record) of no little difficulty. As our rulings thereon will, because of the peculiar facts of the case, hardly furnish a precedent for subsequent cases, we shall state briefly and generally, without entering into the reasons therefor, our conclusions upon the several points made.

i. E.-racuadminisappeal, I. Where a claim has been allowed, as this one was, in favor of the administrator of an estate, the heirs interested may apply for and prosecute an appeal in their own name. Assuming that they might prosecute the same m the name ox the administrator temporarily appointed ” to defend against the claim, this would not, in our opinion, prevent them, at their election, from applying for the appeal in their own names.

atl0n' II. While the statute contemplates that the appeal, when applied for to the District Court, shall be allowed within year from the act complained of, it must have a reasonable and consistent construction, and therefore, where the party applies for the appeal within the year, and is without fault, either in making his application or prosecuting the same, he is not to be concluded, if the order allowing the same is not made until after that time. To hold that the allowance must be made within the year, without reference to the time of the application, would place it in the power of a litigious adverse party to defeat an application, though based upon the clearest equity and right, in the face of the plain object and policy of the statute. See Miller v. Heirs of Reynolds, 14 Iowa, 100 .

3_ap. pearance. III. Defendant was made a party, by the petition, as administratrix of both estates. As such defendant she appears and defends. In this condition of the reeorq (assuming that she, as administrator of her mother's estate, could object for want of service upon her, as administratrix of her father’s estate, of which there is much doubt) we think she is in court as the party adversely interested, within the meaning óf the statute.

*19 IY. That the petition shows good cause for a failure to claim the appeal within thirty days, and that the case requires revision, we entertain no doubt. Petitioners knew nothing of the allowance of the claim; and without undertaking to prejudge the case upon its merits, we maybe permitted to say that it seems most extraordinary that a husband should be allowed, for money paid in giving his wife decent sepulture, and for medicine and food in her last or any illness.

Affirmed.