IN THE SUPREME COURT OF IOWA

No. 12–1340

Filed October 25, 2013

IN THE MATTER OF THE ESTATE OF CARROLL IRVING SAMPSON, 

Deceased.

CHERYL ANN MURKEN and MARY ANN SMITH, Coexecutors of the 

Christine Rosilia Sampson Estate,

Appellants.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Story County, James C. 

Ellefson, Judge.

The coexecutors of a wife’s estate seek further review of a decision 

of the court of appeals, affirming an order of the district court reopening 

her husband’s estate. DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

John D. Jordan and Meredith C. Mahoney Nerem of Jordan & 

Mahoney Law Firm, P.C., Boone, for appellants.

John P. Dollar and Scott S. Riemenschneider of Wilson, Deege, 

Dollar, Despotovich & Riemenschneider, West Des Moines, for appellees.
2

MANSFIELD, Justice.

This case requires us to examine the interplay between two 

sections of the Iowa Probate Code that address deadlines to reopen 

estates. In 1993, a husband died, and his will was probated. His wife 

received almost all of his property pursuant to a residuary clause in the 

will. Nearly eighteen years later, in 2011, the wife died. At that time, a 

number of relatives who had not been formally notified of the probate 

proceedings in 1993 reviewed the husband’s will. They brought an 

action to reopen the estate, asserting that a different residuary clause in 

the husband’s will entitled them to the husband’s property and that they 

should have received it in the earlier proceedings.

The relatives’ petition was opposed by the coexecutors of the wife’s

estate. Among other things, they asserted that the petition was barred 

by section 633.488 of the Iowa Probate Code, which provides a five-year 

time limit from the final report to reopen settlement of an estate when a 

party did not receive formal notice of the final report and accounting. 

The district court and the court of appeals disagreed with this argument. 

They found that section 633.489 of the Code, which allows estates to be 

reopened without time limit under certain circumstances, controlled 

here. On further review, we hold that section 633.488 is the applicable 

statute and therefore reverse and remand for further proceedings.

I. Facts and Procedural History.

Carroll Sampson, a resident of Story City, was married to Christine 

Sampson. They did not have any children. In 1991, Carroll executed a 

will which nominated Christine as executor. The will contained two 

residuary clauses. In article two of his will, Carroll stated:

I give any automobiles, household furniture or 

furnishings, silverware, china, crystal, books, wearing 

apparel and other tangible personal effects owned by me at 
3

my death to Spouse, if she survives me for a period of thirty 

days. I give the residue of my estate to Spouse, if she 

survives me for thirty days.

In article four, Carroll stated:

The rest residue and remainder of my estate I divide 

into 15 equal parcels to be divided as follows amongst my 

and my spouses surviving brothers and sisters and their 

children if they are not living.

The attorney who drafted the will, Robert Huffer, testified that the 

testator’s intent was for the estate to go to Christine if she survived 

Carroll; otherwise, it would go to the siblings or, if they had died, their 

children.

The main asset of Carroll’s estate was his undivided one-half 

interest in two parcels comprising about 200 acres of farmland in Hardin 

County. Carroll and Christine owned this real property as tenants in 

common.

Carroll passed away on July 29, 1993, survived by Christine. His 

will was admitted to probate on August 10, 1993, and Christine became 

the executor. On September 20, 1993, a report and inventory were filed 

which listed Christine as the sole beneficiary. On December 22, 1993, 

Huffer filed the final report on Christine’s behalf, which again listed 

Christine as the sole beneficiary and asked that the estate be settled and 

closed. The estate was closed on January 3, 1994, and the assets, 

including the farmland, passed to Christine.

The siblings, nephews, and nieces of Carroll and Christine 

identified in article four did not receive formal notice of the probate 

proceedings for Carroll’s will. Huffer explained that since they were not 

beneficiaries, he did not believe they needed to receive formal notice. 

However, these relatives were aware that Carroll had died and that 

probate proceedings had been opened. Several of the relatives later 
4

testified it was their understanding that Christine had received a life 

estate in the real property, and it would be theirs once Christine died.

As a practical matter, things would have worked out that way if 

Christine had not changed her will. Originally, Christine’s will mirrored 

Carroll’s, which meant that upon her death her property would have 

been divided among the siblings and their children because Carroll did 

not survive her. However, in 2006, Christine decided to change her will 

because of some family disputes. Thus, she essentially removed the 

siblings of Carroll and herself and their children as beneficiaries. She 

devised the residue of her estate, including the Hardin County real 

property, to charity.

Christine died on March 1, 2011. Her will was subsequently 

admitted to probate. A number of Christine’s and Carroll’s siblings and 

their children were surprised to learn at that time that they would not be 

receiving an interest in the real property. They claimed not to have seen 

Carroll’s will until after Christine’s death.1

Upon reviewing Carroll’s will, these relatives brought an action on 

July 28, 2011, seeking to reopen Carroll’s estate under Iowa Code 

section 633.489 (2011). They alleged that, under article four of Carroll’s 

will, they should have received his undivided interest in the Hardin 

County real property.

The coexecutors of Christine’s estate answered, denying that the 

prior 1994 distribution of the residual assets to Christine had been 

improper. The coexecutors of Christine’s estate also alleged that the 

petition to reopen was untimely because of the time that had elapsed 

 

1Huffer disputes this in part. He maintains that after Carroll died in 1993, he 

gave a copy of Carroll’s will to one of Carroll’s nephews who is now seeking to reopen 

Carroll’s probate proceeding.
5

since Carroll’s estate was closed. Subsequently, the coexecutors moved 

for summary judgment. In their motion, the coexecutors maintained 

that the relatives’ petition to reopen was foreclosed by the five-year 

statute of limitations in section 633.488.

The district court held a hearing, and thereafter on July 5, 2012,

denied the coexecutors’ motion for summary judgment, reasoning that 

section 633.489 rather than section 633.488 governed the relatives’ 

claim. Thus, the court found, “There is no time bar.” The estate sought 

an interlocutory appeal. We ruled that an appeal as of right was 

available and transferred the case to the court of appeals.

In an opinion filed April 24, 2013, the court of appeals agreed with 

the district court that section 633.489 rather than section 633.488 

applied. Hence, like the district court, the court of appeals found that 

the petition to reopen was not time-barred. The coexecutors sought 

further review, which we granted.

II. Standard of Review.

As we said recently in In re Estate of Roethler:

A petition to reopen an estate requires the court to 

engage in a two-step decision process. First, the district 

court must make a preliminary determination whether the 

plaintiff has asserted a permissible reason for reopening the 

estate. This determination is governed by Iowa Code 

sections 633.487, 633.488, and 633.489. We review the 

district court’s preliminary decision as to whether to reopen 

the estate under section 633.489 for abuse of discretion. 

The district court abuses its discretion when it exercises its 

discretion “on grounds clearly untenable, or to an extent, 

clearly unreasonable.”

801 N.W.2d 833, 837 (Iowa 2011) (citations omitted).

III. Merits.

This case involves part 9 of the Iowa Probate Code, which our 

general assembly enacted in 1963. See 1963 Iowa Acts ch. 326 §§ 487–
6

89. That part is divided into three sections and is entitled “Reopening.” 

Id. The first section of part 9 reads as follows:

Limitation on rights.

No person, having been served with notice of the 

hearing upon the final report and accounting of a personal 

representative or having waived such notice, shall, after the 

entry of the final order approving the same and discharging 

the said personal representative, have any right to contest, 

in any proceeding, other than by appeal, the correctness or 

the legality of the inventory, the accounting, distribution, or 

other acts of the personal representative, or the list of heirs 

set forth in the final report of the personal representative, 

provided, however, that nothing contained in this section 

shall prohibit any action against the personal representative 

and the personal representative’s surety under the 

provisions of section 633.186 on account of any fraud 

committed by the personal representative.

Iowa Code § 633.487.

Next, section 633.488 provides:

Reopening settlement.

Whenever a final report has been approved and a final 

accounting has been settled in the absence of any person 

adversely affected and without notice to the person, the 

hearing on such report and accounting may be reopened at 

any time within five years from the entry of the order 

approving the same, upon the application of such person, 

and, upon a hearing, after such notice as the court may 

prescribe to be served upon the personal representative and 

the distributees, the court may require a new accounting, or 

a redistribution from the distributees. In no event, however, 

shall any distributee be liable to account for more than the 

property distributed to that distributee. If any property of 

the estate shall have passed into the hands of good faith 

purchasers for value, the rights of such purchasers shall 

not, in any way, be affected.

Id. § 633.488.

Lastly, section 633.489 provides:

Reopening administration.

Upon the petition of any interested person, the court 

may, with such notice as it may prescribe, order an estate 

reopened if other property be discovered, if any necessary act 

remains unperformed, or for any other proper cause 

appearing to the court. It may reappoint the personal 
7

representative, or appoint another personal representative, 

to administer any additional property or to perform other 

such acts as may be deemed necessary. The provisions of 

law as to original administration shall apply, insofar as 

applicable, to accomplish the purpose for which the estate is 

reopened, but a claim which is already barred can, in no 

event, be asserted in the reopened administration.

Id. § 633.489.

As the foregoing quotations indicate, section 633.487 essentially 

cuts off the rights of persons who received notice of the final report to 

contest distribution or prior acts of administration, except in the case of 

fraud. See id. § 633.487. Section 633.488 imposes a five-year deadline 

on persons who did not receive notice to seek a “new accounting” or a 

“redistribution” of property that passed through an estate. See id. 

§ 633.488. Section 633.489 allows a party to request reopening of the 

estate at any time, regardless of prior notice or the lack thereof, “if other 

property be discovered, if any necessary act remains unperformed, or for 

any other proper cause.” Id. § 633.489.

The section titles were part of the 1963 legislation and remain in 

the Code today. See 1963 Iowa Acts ch. 326 §§ 487–89 (codified at Iowa 

Code §§ 633.487–.489). Here, the titles inform us. See State v. Tague, 

676 N.W.2d 197, 201 (Iowa 2004) (relying on a section heading as an aid 

to interpretation and noting that “[a]lthough the title of a statute cannot 

limit the plain meaning of the text, it can be considered in determining 

legislative intent” (citation and internal quotation marks omitted)). They 

indicate that section 633.487 is intended as a “limitation on rights” of 

persons who received notice of the hearing on the final report. 

Meanwhile, section 633.488 is about reopening settlement—e.g., seeking 

to redistribute property from one party to another—whereas section 

633.489 is about reopening administration—e.g., seeking to distribute

newly discovered property.
8

The comment by the bar committee that drafted the Iowa Probate 

Code states that section 633.488 is “[d]esigned to protect persons 

adversely affected by a final report or final accounting who did not 

receive notice, but at the same time protecting rights of good faith 

purchasers for value.” See 1963 Iowa Probate Code § 488 bar committee 

cmt., at 140 (West 1963). Section 633.489, by contrast, is “[a]dapted 

from section 194 of the Model Probate Code in lieu of 638.9 (1962 Code) 

to permit reopening for administration of newly discovered property or 

performance of required but omitted acts of personal representatives.” 

See id. § 489 bar committee cmt., at 141; see also In re Estate of Foster, 

483 N.W.2d 327, 329 (Iowa 1992) (citing the bar committee comments in 

a case interpreting the Iowa Probate Code); Patten v. Patrick, 276 N.W.2d 

390, 397 (Iowa 1979) (same); In re Estate of DeVries, 203 N.W.2d 308, 

310 (Iowa 1972) (stating that any doubt about a specific question of 

interpretation of the Iowa Probate Code was “settled by this Bar 

Committee comment appended to the statute”).

The underlying policy of having a time limit for claims regarding 

settlement but not administration makes sense. At some point, it is 

desirable for the distribution of an estate to be recognized as final, even if 

there was some flaw in the proceeding, such as a failure to give formal 

notice to potential beneficiaries. Assets need to be marketable, and 

recipients of estate property need to be able to move on with their affairs.

On the other hand, if all efforts to reopen an estate were subject to 

a five-year time bar, then this could handcuff the ability of heirs to deal 

with unforeseen circumstances or result in assets being unmarketable. 

For example, if additional property of the testator were discovered six 

years after the closing of an estate, absent section 633.489 there would 

be no way of dealing with that property. Or if an error in a legal 
9

description surfaced six years after the closing, section 633.489 provides 

a means of addressing it. See Shirley A. Webster, Decedents’ Estates: 

Succession and Administration, 49 Iowa L. Rev. 638, 676–77 (1964) 

(giving this example).

Our prior cases interpreting the two statutory provisions have 

recognized this basic distinction between reopening settlement and 

reopening administration. In Ritz v. Selma United Methodist Church, we 

held section 633.489 allowed an estate to be reopened when buried 

money that had never been administered as part of the estate was 

discovered more than five years after the estate’s closing. See 467 

N.W.2d 266, 270 (Iowa 1991). We explained:

The five-year limitation on reopening a final settlement 

contained in section 633.488 is, by its express terms, aimed 

at an attempt to reopen an estate by an adversely affected 

person who was not given notice and opportunity to be heard 

on the final report.

Section 633.488 contemplates a reopening of matters 

which have been previously considered in the final 

accounting, distribution, and settlement order. Section 

633.489, on the other hand, is aimed at reopening a closed 

estate for the purpose of administering property omitted 

from the inventory or performing other necessary acts which 

were not performed during the original administration. 

Section 633.489 does not place any time limitation on 

reopening for such purposes.

Id. (footnote omitted).

Then, in In re Estate of Lynch, we held that an estate could be 

reopened under section 633.489 to correct an overpayment of statutory 

executor and attorney fees that had only been established through

subsequent events. 491 N.W.2d 157, 159–61 (Iowa 1992). In Lynch, the 

state tax authorities had determined—after the closing of an estate—that 

certain assets were not part of the estate and that there had been an 

overpayment of inheritance tax. Id. at 158–59. This meant that executor 
10

and attorney fees had been overpaid based on the erroneously overstated 

probate inventory. Id. at 160–61. We held that such a “mistake in the 

court’s allowance of fees may constitute proper cause for reopening an 

estate.” Id. at 161. As we noted later in Roethler, Lynch should be 

viewed as a case involving estate administration as well. See Roethler, 

801 N.W.2d at 840. The issue was a “mistake in the court’s allowance of 

fees,” a matter of administration, not a challenge to the underlying 

distribution of property under the will. See Lynch, 491 N.W.2d at 161.

In In re Estate of Warrington, we held that a widow who had 

received a life estate in property under a will could utilize section 

633.489 to seek authority to invade the principal of that property 

notwithstanding the passage of more than five years since the closing of 

the underlying estate. 686 N.W.2d 198, 200, 204–05 (Iowa 2004). Again, 

this did not affect the previously approved plan of distribution. See id. at 

205 (noting that “Leona’s right of invasion will not deprive the 

remainderpersons of any testamentary devise to which they were 

unconditionally entitled under the provisions of Leonard’s will”).

Finally, and most recently, in Roethler, we held that parties who 

had been given an option to buy real estate in a will but had never been 

formally notified of the probate proceedings—and never knew they had 

that option—could reopen an estate nine years after the final report to 

exercise that option. 801 N.W.2d at 835–37, 839–41. We reasoned that 

under our precedents, section 633.489 could be invoked when an action 

“required more than simply redistributing property amongst distributees, 

as contemplated in section 633.488.” Id. at 840. As we put it:

Section 633.489 applies where future events require 

administration of matters not considered in the final report, 

and a time-bar is inconsistent with this purpose.
11

. . . In cases applying section 633.489, the estates 

were reopened to reinventory property, to perform acts not 

considered in the original administration, or to perform acts 

more substantial than just distribution amongst 

distributees.

Id.

With the language of sections 633.488 and 633.489 and these 

precedents in mind, we now turn to the present case. This case does not 

involve some unperformed act of administration. The petitioners do not 

ask to be given the opportunity to exercise an option; they do not seek 

permission to invade principal based on the widow’s postclosing financial 

circumstances; they do not request an adjustment of executor or 

attorney fees based on a postclosing decision of the state authorities; and 

they have not found some newly discovered property that needs to be 

handled. This case, purely and simply, involves “redistributing property 

amongst distributees.” Id. The petitioners contend that Carroll’s interest 

in the real estate should have been distributed to them rather than 

Christine. The “matter”—i.e., to whom did the will devise Carroll’s real 

property interest?—“[was] previously considered in the final accounting, 

distribution, and settlement order.” Ritz, 467 N.W.2d at 270. Thus, we 

conclude that this is an effort to reopen settlement, covered by section 

633.488, rather than administration, covered by section 633.489.

Indeed, if this case were not covered by section 633.488, it is 

difficult to see what case would be. True, the relatives of Carroll and 

Christine did not receive formal notice in 1993. And, the probate court 

never heard them argue that article four of the will required the 

distribution of the real property interest to them rather than Christine.

2 

 

2Notably, the relatives’ present argument that article four trumps article two 

means they should have received Carroll’s half-interest in the real property outright in 

1994. It is not consistent with their alleged understanding that they would receive the
12

But the very point of section 633.488 is to provide an outside five-year 

limit on claims challenging the settlement of property even when a party 

does not receive notice. If the relatives had received formal notice, 

section 633.487 would have barred their claims immediately.

We realize that section 633.489 allows an estate to be reopened “if 

other property be discovered, if any necessary act remains unperformed, 

or for any other proper cause appearing to the court.” Iowa Code 

§ 633.489 (emphasis added). We have previously explained that this 

language “should be read as permitting the district court to exercise 

discretion in considering a petition that alleges a cause for reopening 

other than the two causes specifically enumerated in section 633.489 

(discovery of property, performance of necessary act).” In re Estate of 

Witzke, 359 N.W.2d 183, 185 (Iowa 1984). We have also said that a 

district court’s decision to find or not to find proper cause should be 

reviewed for abuse of discretion. Id.; see also Roethler, 801 N.W.2d at 

837, Warrington; 686 N.W.2d at 205; Lynch, 491 N.W.2d at 161.

But “[u]nder the doctrine of ejusdem generis, general words which 

follow specific words are tied to the meaning and purpose of the specific 

words.” Iowa Comprehensive Petroleum Underground Storage Tank Fund 

Bd. v. Shell Oil Co., 606 N.W.2d 376, 380 (Iowa 2000); see also Sallee v. 

Stewart, 827 N.W.2d 128, 153 (Iowa 2013). So “other proper cause” 

should be interpreted with reference to the other items in the list—i.e., 

other property being discovered or any necessary act being 

unperformed—which concern unperformed acts of administration. See 

______________________________________

property only after Christine’s life estate terminated. As we note above, the executors’ 

interpretation of the will giving priority to article two is actually more consistent with 

the relatives’ alleged understanding of how things worked. The relatives’ problem is 

that Christine changed her plan of distribution by executing a new will in 2006.
13

Iowa Code § 633.489. And if “other proper cause” were interpreted too 

expansively, it would subsume section 633.488’s five-year time limit on 

reopening settlement.

Notably, the 1963 bar committee comment attributes only two 

purposes to section 633.489—“administration of newly discovered 

property” and “performance of required but omitted acts of personal 

representatives.” 1963 Iowa Probate Code § 489 bar committee cmt., at 

141. The comment does not suggest that “other proper cause” is 

intended to dramatically enlarge the scope of section 633.489 so it can

be used to reopen settlement.

Additionally, “[t]o the extent there is conflict or ambiguity between 

specific and general statutes, the provisions of specific statutes control.” 

Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d 802, 815 (Iowa 2011) 

(citation and internal quotation marks omitted); see Iowa Code § 4.7 (“If 

the conflict between the provisions is irreconcilable, the special . . . 

provision prevails as an exception to the general provision.”). We would 

violate this principle if we were to read the general terminology “other 

proper cause” to encompass an effort to redistribute property based on 

lack of prior notice, a topic specifically covered by section 633.488.

Indiana’s courts have concluded that Indiana’s counterpart to Iowa 

Code section 633.4893 cannot be used simply to alter the distribution of 

 

3Indiana law provides:

If, after an estate has been settled and the personal representative 

discharged, other property of the estate shall be discovered, or if it shall 

appear that any necessary act remains unperformed on the part of the 

personal representative, or for any other proper cause, the court, upon 

the petition of the discharged personal representative or any person 

interested in the estate and, without notice or upon such notice as it may 

direct, may order that said estate be reopened. It may reappoint the 

personal representative or appoint another personal representative to 

administer such property or perform such act as may be deemed
14

property when there is no unperformed act of administration. See In re 

Estate of Kalwitz, 923 N.E.2d 982, 988 (Ind. Ct. App. 2010) (holding that 

Indiana Code section 29-1-17-14 cannot be used to modify a distribution 

of real property because it would be “an untimely attack on the decree of 

distribution” and the provision is not available to “seek[] a different 

distribution of the item of property” (citation and internal quotation 

marks omitted)); In re Estate of McNabb, 744 N.E.2d 569, 572–73 (Ind. 

Ct. App. 2001) (holding a petition which in form seeks to reopen an 

estate on the ground that some acts remain unperformed but in 

substance seeks a redistribution of assets is not covered by Indiana Code 

section 29-1-17-14 notwithstanding deficiencies in the closing statement 

or lack of notice).4

Another consideration is that “[n]otice, or the lack thereof, plays no 

part in [section 633.489].” Roethler, 801 N.W.2d at 840. “[T]he bar of 

section 633.487 does not prevent a person otherwise meeting the 

______________________________________

necessary. Unless the court shall otherwise order, the provisions of this 

article as to an original administration shall apply to the proceedings had 

in the reopened administration so far as may be, but no claim which is 

already barred can be asserted in the reopened administration.

Ind. Code § 29-1-17-14(a) (West, Westlaw through 2013 legislation).

4Louisiana law on reopening estates also employs the “other proper 

cause” terminology:

After a succession representative has been discharged, if other property 

of the succession is discovered or for any other proper cause, upon the 

petition of any interested person, the court, without notice or upon such 

notice as it may direct, may order that the succession be reopened. The 

court may reappoint the succession representative or appoint another 

succession representative. The procedure provided by this Code for an 

original administration shall apply to the administration of a reopened 

succession in so far as applicable.

La. Code Civ. Proc. Ann. art. 3393(A) (West, Westlaw through 2013 Sess.) (emphasis 

added). According to the Louisiana Supreme Court, “Courts have found ‘other proper 

cause’ under [article 3393] to exist under extremely limited circumstances . . . .” In re 

Succession of Villarrubia, 680 So.2d 1147, 1150 (La. 1996).
15

requirements of section 633.489 from reopening an estate.” Warrington, 

686 N.W.2d at 204; see also Lynch, 491 N.W.2d at 160. Assume, 

therefore, that the siblings of Carroll and Christine and their 

descendants had been served with the final report and accounting in 

1993. According to section 633.487, they would be barred thereafter 

from challenging the final decree of distribution (other than by direct 

appeal). However, if we accept their reading of section 633.489, and if 

notice plays no part, they could still petition for reopening of the estate 

nearly two decades later. That is illogical and would undermine the 

principle that we should read a statute as a whole and attempt to 

harmonize all of its provisions. See Thoms v. Iowa Pub. Employees’ Ret. 

Sys., 715 N.W.2d 7, 13 (Iowa 2006) (“We interpret statutes by 

considering them as a whole, not by looking at isolated parts of the 

statute.”); Bruce v. Wookey, 261 Iowa 231, 233, 154 N.W.2d 93, 94 (Iowa 

1967) (“Each section [of the Iowa Probate Code] must be construed with 

the act as a whole and all parts of the act considered, compared and 

construed together.”).

The relatives’ position, summarized on the final page of their brief, 

is that “[t]his case is a request to reopen the estate due to a massive 

mistake in the original probate proceeding. This is what Section 633.489 

is designed to do.” But of course every petition to reopen a legal 

proceeding involves some kind of alleged error, often claimed to be of 

great magnitude. Section 633.489, however, does not allow the 

distribution of property among heirs to be reopened, in the absence of 

some unperformed act of administration, simply because the petitioner 

asserts error in the prior distribution. In using section 633.489 for this 

purpose, the district court abused its discretion. See In re Trust No. T-1 

of Trimble, 826 N.W.2d 474, 482 (Iowa 2013) (indicating that an abuse of 
16

discretion occurs when the district court’s ruling is “based on an 

erroneous application of the law” (citation and internal quotation marks

omitted)).

IV. Conclusion.

For the foregoing reasons, we hold the petitioners’ claims are

barred by section 633.488’s five-year time limit. We vacate the decision 

of the court of appeals, reverse the order of the district court, and 

remand for further proceedings consistent herewith.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED.

All justices concur except Zager, J., who takes no part.