Estate of Pope, Matter of

• Decision Date: 18 November 1986
• Docket Number: No. 62204,62204
• Citation: 1986 OK 72,733 P.2d 396
• Parties: In the Matter of the ESTATE OF H. Everett POPE, Jr., Deceased. TULSA PROFESSIONAL COLLECTION SERVICES, INC., Appellant, v. Joanne POPE, Executrix of the Estate of H. Everett Pope, Jr., Appellee.
• Court: Oklahoma Supreme Court

Page 396

733 P.2d 396

1986 OK 72

In the Matter of the ESTATE OF H. Everett POPE, Jr., Deceased.

TULSA PROFESSIONAL COLLECTION SERVICES, INC., Appellant, v. Joanne POPE, Executrix of the Estate of H. Everett Pope, Jr., Appellee.

No. 62204.

Supreme Court of Oklahoma.

Nov. 18, 1986.

Rehearing Denied March 10, 1987.

Naylor & Williams, Inc. by David A. Tracy and Randall E. Rose, Tulsa, for appellant.

Smith & Smith by Phillip K. Smith, Tulsa, for appellee.

LAVENDER, Justice:

I.

Appellant, Tulsa Professional Collection Services, Inc., was assigned a debt owed to St. John Medical Center. This debt had arisen from the expenses of the last illness of H. Everett Pope, Jr. Appellant initiated the current action by the filing of an application for an order compelling the payment of the expenses of the last illness of H. Everett Pope, Jr. The following facts were stipulated to by the parties in conjunction with the trial court's ruling on the application:

1. H. Everett Pope, Jr. ("decedent") was admitted to St. John Medical Center ("hospital") in Tulsa on 23 November 1978. He remained in the hospital until his death on 2 April 1979.

2. The expenses of decedent's hospital stay were in excess of $142,000.00. Decedent's insurer made some payments to hospital, leaving a net balance due of $14,657.55. The parties dispute the amount of the net balance due attributable to decedent's last illness.

3. Decedent's will was admitted to probate on 16 July 1979.

4. The qualified personal representative of decedent's estate published notice to creditors on 17 July 1979 and 24 July 1979.

5. No timely creditor's claim was presented to the personal representative within the applicable statutory period of 4 months [sic]. The parties dispute whether a creditor's claim was ever presented to the personal representative, but if presented, such claim was not approved. No suit to compel the personal representative to approve the claim has been filed.

6. Assignee filed an "Application for Order Compelling Payment of Expenses of Last Illness" on 17 October 1983. It was set for hearing on 10 November 1983. Upon the above stipulations of fact, briefs were scheduled to be submitted, and the matter was taken under advisement by the Court.

The trial court found that appellant's failure to file a claim for the debt within the time noted in appellee's publication of notice to creditors of the estate of H. Everett Pope, Jr., barred the assertion of the claim. The trial court denied appellant's application and this appeal ensued.

On appeal, as in the trial court, this dispute was characterized as a question of statutory interpretation. Appellee relied upon the general chapter in the probate code governing claims against the estate; specifically 58 O.S.1971 § 331, which provided in pertinent part:

Every executor or administrator must, immediately after his appointment, give notice to the creditors of the deceased, requiring all persons having claims against said deceased to present the same, with the necessary vouchers, to such executor or administrator, at the place of his residence or business, to be specified in the notice, within two (2) months from the date of the first publication of said notice; such notice must be published in some newspaper in said county once each week for two (2) consecutive weeks....

and 58 O.S.1971 § 333, which provided in pertinent part:

If a claim arising upon a contract heretofore made, be not presented within the time limited in the notice, it is barred forever, ....

Appellant, on the other hand, relied on the subchapter of the probate code governing payments of the debts of the estate. Appellant argued that 58 O.S.1971 § 594 dispensed with the requirement that a claim be filed in connection with the expenses of the last illness. Section 594 provides:

The executor or administrator, as soon as he has sufficient funds in his hands, must pay the funeral expenses, and the expenses of the last sickness, and the allowance made to the family of the decedent. He may retain in his hands the necessary expenses of administration, but he is not obliged to pay any other debt or any legacy until, as prescribed in this chapter, the payment has been ordered by the court.

Both appellant and appellee argued authorities from other jurisdictions concerning the construction of statutes similar to section 594. Some authorities had found such a statute to relieve the necessity of filing a claim. ¹ Appellee's authority had found that failure to timely file a claim had resulted in the claim being barred despite the presence of a statute similar to section 594. ² Appellee also cited from this Court's statements in State ex rel. Central State Griffin Memorial Hospital v. Reed, ³ to the effect that:

The purpose of the nonclaim statute [58 O.S.1971 § 333] is to facilitate the handling and closing of estates. The legislature has considered the importance of this question in its amendment of the statute reducing the period of time within which the claim may be filed from four months to two months. Clearly this is an expression of the legislative concern for the expediting and disposing of administration of estates without delay.

The trial court concluded that a construction of section 594 which would have the effect of allowing certain claims to be maintained outside the time limits of the nonclaim provisions would be contrary to the legislative intent behind those provisions as set forth in Central State Griffin Memorial Hospital. On appeal, the Court of Appeals, Division IV, affirmed the trial court's ruling.

In reviewing the decisions of the courts below we find the reasoning applied to this question of law to be correct. In the case of Rogers v. Oklahoma Tax Commission, ⁴ we stated in Court's syllabus:

In the construction of statutes, harmony, not confusion, is to be sought. The true rule is that when two acts or parts of acts are reasonably susceptible of a construction that will give effect to both and the words of each, without violence to either, it should be adopted in preference to one which, though reasonable, leads to the conclusion that there is a conflict.

As properly noted by the Court of Appeals, the statutory framework of 58 O.S.1971 §§ 331 through 354 constitutes a system of safeguards against invalid and improper claims against an estate, as well as a system designed to expedite the administration of these estates. To find that section 594 would allow some claims to be maintained outside this system would directly conflict with the clear intent of these statutes. It is, moreover, possible to read the cited provisions in harmony. Section 594 provides that the personal representative of the estate must pay the expenses of the last illness as soon as funds are available when a proper claim ⁵ has been presented therefore.

II.

Following the Court of Appeals' affirmance of the trial court's decision in this case, appellant petitioned that court for rehearing. In its petition for rehearing, appellant raised, for the first time, a due process argument based on an alleged failure to give actual notice of probate proceedings and of the necessity to file claims. Appellant asserted that appellee knew of the existence of its claim at the time notice was published pursuant to 58 O.S.1971 § 331. Appellant then argued that recent decisions of this Court ⁶ and other courts ⁷ required that actual notice be given under these circumstances. Appellant argued that to apply the bar of the nonclaims statute in the absence of actual notice to a known creditor would deprive that known creditor of due process.

In a supplemental opinion on rehearing the Court of Appeals rejected this argument and denied rehearing. In the supplemental opinion it was stated that the argument was procedurally defective as it was initially raised in the petition for rehearing. The Court of Appeals then dismissed the argument on the ground that there was no evidence to show that appellant did not have actual notice of the probate proceedings.

We first address the Court of Appeals' assertion that the question of due process is procedurally inappropriate for consideration. The question of adequacy of notice goes to the jurisdiction of the court. ⁸ A matter involving a question of jurisdiction should be considered even if submitted initially in a petition for rehearing. ⁹

The Court of Appeals' disposition of appellant's argument on the grounds that there was no evidence to support a finding that appellant did not have actual notice is also erroneous. We have previously noted that the burden of affording proper notice rests on the party whose responsibility it is to give that notice. ¹⁰ And, since the operation of the nonclaims provisions result in the forfeiture of what might otherwise be meritorious claims, the burden of pleading and proof regarding compliance with the provisions properly rests on one claiming the benefit of those provisions. ¹¹

The question of the notice required under 58 O.S.1971 § 331 has not been previously addressed by this Court. However, the question of the sufficiency of notice required to meet due process requirements in the context of the operation of nonclaims statutes has been addressed in a number of jurisdictions. Examining the relation of the nonclaims statutes to the line of cases originating with Mullane v. Central Hanover Bank and Trust Co., ¹² and culminating most recently in Mennonite Board of Missions v. Adams, ¹³ the courts have clearly held that the reasoning behind those cases was not applicable to the operation of the nonclaims statutes. ¹⁴ Most recently, the Supreme Court of Missouri, in addressing the question of the applicability of due process requirements set forth in the United States Supreme Court cases following Mullane, stated: ¹⁵

These cases make it clear that when the rights or interests of a person are sought to be affected by judicial or quasi-judicial decree, due process requires that the person be...