#### Cora *Cummings*v. Martha J. Lynn, Administratrix of the Estate of William Dilts, Deceased, Appellant.

Estates of Decedents: appointment op administrator : insuffi-1 cjlency of application : limitation. An application for the appointment of an administrator made more than five years after the death of decedent, on the ground that it is necessary to complete title to real estate of decedent, will not be granted, where the alleged ground appears to he untrue. The applicant has no interest in the estate and the application negatives the existence of personal property.

Administration; ENFORCEMENT of claims: invaltoity of pro-2 ceeding. A stranger to the estate cannot, after the lapse of five years, procure administration and subject real estate which has passed to the heirs to the payment of debts, and where an administrator is appointed without a proper showing the whole proceeding is void.

Claim for Services: evidence of payment. In au action against 3 an estate for services, entries made by the claimant in a mem-oranda book kept by deceased, which recite payment to a time subsequent tc the death of decedent, are sufficient, in the absence of explanation, to show full payment.

*Appeal from Hardin. District Court.*— HoN. W- S. *Ken~*YON, Judge.

Friday, October 16, 1903.

On April 4, 1900, Martha. J. Lynn filed her application for appointment as administratrix of the'estate of William Dilts, in which slie alleged he was a resident of the county, llied intestate October 3, 1804, Jett no personal property save what passed into the bands of his widow, and that *345the object of the application was to complete the title to certain real estate left by him. Letters of administration issued to her, and statutory notice was published. On August 6, 1900, Oora Oummings filed her claim of $689 for balance due from deceased for services rendered him from July 3, 1893, to March 25, 1900. Jury was waived, and, after hearing the evidence, the court allowed claimant the sum of *$100.*

Reversed.

*Albrook & Lundy*for appellant.

*John Porter*and *W. J. Moir*for appellee.

Ladd, J.

*x.*Appointment traato?‘5isuffi-StionTSm-itauon. The application for appointment as admin-istratrix was made more than five years atfer the death of decedent. It asserts no tenable ground for the issuance of letters. It negatives the existence of per- ° sona^ property, and in this respect the case is to be distinguished from *Murphy v. Creighton, Io*wa, 179, where this was presumed in aid of the jurisdiction of the court, and *Lees v. Wetmore,*58 Iowa, 170, where the court was held to have had jurisdiction to determine deceased possessed property within the county. Nor is any equity asserted to meet the suggestions in *Bridgman v.*Miller, 50 Iowa, 392, and *Haynes v.*Harris, 33 Iowa, 516. The allegation that administration was necessary to complete the title, to real estate of deceased was untrue on its face. *Herriott v.*Potter, 115 Iowa, 648. Indeed, there is nothing therein to indicate. that the applicant had or has the slightest interest in the estate either as heir or creditor. In .these circumstances' it must be held that the court, in granting administration, acted without authority. Our statute provides that “ad: 1 ministration shall not be originally granted after five years from the death of the decedent, or from the time, his death wasdinown when he died out of the state. ” Section • *3463305, Code. Upon the expiration of this period the personal estate of decedent, if any he had, vested absolutely in his heirs. *Phinny v.*Warren, 52 Iowa, 332. See, also, *Crossan v. McCrary,*37 Iowa, 684; *Lees v.*Wetmore, *supra; Christie v. C. R. I. & P. R. R. Co.,*104 Iowa, 707; *Murphy v. Murphy,*80 Iowa, 740.

. „„ Sent offorce’ vSidity'of proceeding, Can a mere stranger intervene after this period, and, by procuring letters of administration, subject the realty which has been vested in heirs for more than five years, and which could have been transferred free from indebtedness of decedent, tothepayment of claims? Should one heir be allowed ren(jer the property of others liable for debts barred by the statute? Can this statute be entirely ignored, and, notwithstanding its provisions, parties interested in the estate, in the absence of any equitable or other considerations, deprived of its .benefit? We think not. Should appellee’s claim be established, there is no personalty from which to satisfy it. The bar of the statute, if interposed, would be conclusive defense to an application for a sale of the real estate. Administration must be applied for not only in the proper county *(In re King's Estate,*105 Iowa, 320), but within the statutory period. If granted thereafter, without proper showing at least, the entire proceeding is void. *Wales v. Willard,*2 Mass., 120.

3 claim for “idem»of payment. But there is still another reason for rejecting the claim. The evidence satisfactorily shows that the indebtedness, if any ever existed, has been paid. The claimant began work July 3, 1893, and decedent died October 4, 1894. Though she may have been employed to work for him during the lives of himself and wife, his death terminated such employment. During that period she was to receive not to exceed $1.75 per week. In a book of account kept by deceased were found these entries in claimant’s handwriting: “Oora *347paid to Oct., 1893,” and on another page, in the same handwriting, “Cora paid to May, 1895.” She had con-tin aed to work for Mrs. Dilts subsequent to his death until her death in 1898 or 1900; and in another memorandum, in'March, 1897, the account is marked .settled, and again, “Settled up to April 1st, 1898.” No evidence was offered explaining these memoranda, and we think them s afficient to- establish payment The administratrix necessarily labored under difficulties in establishing payments of a character ordinarily made by handing over the money, and slighter proof will suffice than might be required under other circumstances. Each party will pay her own costs. —REVERSED.

WeaveR, J., taking no part.