Ritchie v. Barnes

86 N.W. 48, 114 Iowa 67

• Court: Supreme Court of Iowa
• Decided: May 16, 1901
• Status: Published

Opinion

Ladd, J.

The propriety of including a demand for the division of personal property in a suit for the partition of real estate may well be questioned. See section 4240 el secj., Code. But if this might be done, the defendants are not in a situation to ask for such relief. Conceding, for the purpose of the case, that Parmelia Ritchie at the time of her death owned an undivided interest in the notes and mortgages held by plaintiff, her heirs are not entitled to their possession, or the proceeds thereof, until, through distribution or the expiration of the period of limitation, their interest therein has been definitely ascertained. Phinny v. Warren, 52 Iowa, 332; Foss v. Cobler, 105 Iowa, 728; Murphy v. Murphy, 80 Iowa, 740; Jordan v. Hunnell, 96 Iowa, 334; Haynes v. Harris, 33 Iowa, 516; Stahl v. Brown, 72 Iowa, 720. She died November 9, 1896. As administration does not appear to have been granted, and the period of limitation has not yet expired, the right to the possession and control of the personal property left by the deceased is in the administrator appointed or to be appointed, and not the heirs. Christie v. Railroad Co., 104 Iowa, 707, is not in conflict with these views. — Aeeirmed.