Evjen v. Brooks

¶1(specially concurring)

¶2I concur specially. I agree with the majority in their determination that the plaintiff has failed to plead and prove peculiar circumstances which entitled him to equitable relief despite the fact that this claim was known to decedent’s representative, the estate is still open and it appears that decedent had a liability insurance policy covering the accident in question.

¶3I have grave difficulty justifying the harsh result that section 633.410 of the Code has dealt the plaintiff herein.

¶4The purpose of a shortened claims statute is to provide for a speedy settlement of estates. See In Re Estate of Northup, 230 N.W.2d 918, 921 (Iowa 1975). However, the need for speedy settlement of estates hardly seems to provide sufficient justification to allow the personal representative to summarily shorten with nothing more than a published notice the statute of limitations on claims of creditors known to or discoverable with reasonable diligence by the personal representative.

¶5It is difficult to determine that a routine notice published two times in an inconspicuous place in a newspaper of general circulation in the county of decedent’s residence is a fair notice.1 For the creditor to actually see the notice he must subscribe to and/or read carefully the newspaper of publication. Realistically, how many creditors would be in such a class, particularly in today’s world when persons’ business transactions frequently cross county as well as state lines.

¶6*55While the argument could be advanced that a person knowing of a debtor’s death has the obligation to check with the clerk of court for a probate filing, there are two serious fallacies with that argument. First, our shortened claim statute2 allows the claim time to be tolled in less than twenty weeks, a period in which the creditor may still be unaware of the debtor’s death. Secondly, the date for filing is not a date certain until the publication is actually made.

¶7True published notices are the only manner to notify unknown claimants. But as to known or readily ascertainable claimants the legislature should look at IRCP 60.1(a) with reference to mailing of a published notice to known defendants and consider requiring a mailing of the published notice by the personal representative to known or readily ascertainable claimants.