I find myself unable to agree with the majority's opinion in this case and therefore respectfully dissent. *Page 502
In the majority opinion they concede that there were peculiar circumstances, entitling the claimant to equitable relief. The majority say:
"The only thing in the nature of a peculiar circumstance that appears in the record, and apparently the only thing relied upon by the appellee, is the fact that Nicholas W. Lucas died after having filed his claim and before the year for the serving of the notice of hearing had expired. If he had lived, he would have had until the 29th of December, 1931, to serve notice of hearing, Because of his death and because the executor of his estate was not appointed until January, such notice could not be served until after the year for serving it had expired. Conceding that this was a peculiar circumstance that would avoid the bar of the statute until after the executor of the Lucas estate had been appointed and was in a postion to act, * * * ?"
But the majority then hold that due to the fact that the executor of the claimant's estate, who was not appointed until after the year had expired, did not serve the notice of hearing, or take any action with reference to the claim which had been filed by his testator, within a reasonable time after his appointment, the executor of the claimant's estate was guilty of negligence and that the statute of limitations would bar the right of the claimant's estate to recover on the claim.
It should be kept in mind at all times, in the case at bar: First, that the estate of Nicholas Ruden was open and solvent. Second, that the claim of the Nicholas W. Lucas estate against the Ruden estate was duly filed within the year. Third, that the claim was a just claim upon a promissory note, there being no dispute in regard to the note or the amount. Fourth, that, due to the death of Nicholas W. Lucas, it was impossible to serve notice within the period provided by the statute.
In the case of Manatt v. Reynolds, reported in 114 Iowa 688, at page 689, 87 N.W. 683, this court says:
"The record clearly shows that the plaintiff was conversant with the laws governing the time within which his claim must be filed and that he did nothing in relation thereto further than to request the bank official to attend to the matter for him, and to ask him later if he had done so. That the plaintiff relied in perfect good faith upon the statements made to him by the *Page 503 assistant cashier, and believed that his note had been filed as a claim against the estate, cannot be doubted. It is equally as clear that the claim is a just one, and that the estate can suffer no detriment if it be ordered paid. The statute fixing the time for filing claims is a just and salutary one in a large number of cases, but it does not fail to recognize the fact that equitable circumstances may arise from time to time which should soften its strict provisions as to time, so that one who has a concededly just claim may not be deprived thereof on account of an oversight, or on account of some appearance of slight negligence, which can in no way work an injury to the legal rights of others."
In the case above cited the claim was not even filed within two years. In the case at bar it was filed within the year provided by the statute. In the case above cited the only peculiar circumstance was the fact that the claimant had told some officer of a bank to file his claim, not an attorney, but a bank official. And yet this court held that that was such an equitable circumstance that it "would soften the strict provisions of the statute as to time and that one who has a concededly just claim would not be deprived on account of an oversight or on account of some appearance of slight negligence which can in no way work an injury to the legal rights of others." If, under such circumstance, this court says that one holding a just claim will not be deprived of that claim, as this court said in Manatt v. Reynolds, then certainly in the case at bar, where it was an impossibility for the notice to be given within the time, and which the majority say was such a peculiar circumstance as would justify equitable relief, and where the claim, as in the case at bar, is a just and a fair one, on a promissory note which was duly filed within time, it seems to me that this claimant should not be deprived of his right to recover upon this just and fair claim. If appellee is permitted to recover, it will not work an injury to the legal rights of others, the Ruden estate being open and solvent. In the case at bar the appellants could have closed the Ruden estate earlier, and a notice of their intention to do so might have resulted in procuring action more promptly on the part of this appellee. The appellants did not see fit to close this estate sooner; they sat by and permitted the estate to remain open, with the claim of the Lucas estate duly filed. If appellee *Page 504 had brought this action within a shorter time after qualifying as executor, the result would have been the payment of the claim. The delay does not change the situation; all that will result now, if appellee is successful in establishing his claim, will be its payment. No rights of creditors are changed. If the appellee can establish his claim as a just claim against these appellants, he should be permitted to do so.
The able and distinguished trial judge, before whom this case was submitted, listened to the evidence and had the witnesses before him. Discretion has been continually placed in the trial judge by this court in cases of this kind. I find nothing in this record to show that he abused this discretion.
I would affirm the judgment of the lower court.
RICHARDS, J. joins in this dissent.