Addison v. Fleenor

• Decision Date: 25 August 1948
• Docket Number: 2416
• Parties: ADAM ADDISON AND STELLA ADDISON, Plaintiffs and Respondents, v. KENNETH O. FLEENOR AND EMMA ALICE FLEENOR, Defendants and Appellants
• Court: Wyoming Supreme Court

196 P.2d 991

65 Wyo. 119

ADAM ADDISON AND STELLA ADDISON, Plaintiffs and Respondents, v. KENNETH O. FLEENOR AND EMMA ALICE FLEENOR, Defendants and Appellants

No. 2416

Supreme Court of Wyoming

August 25, 1948

Appeal from District Court, Fremont County; C. D. MURANE, Judge.

Action by Adam Addison and another against Kenneth O. Fleenor and another for a declaratory judgment as to merchantability of plaintiff's title to realty. From a judgment decreeing such title to be merchantable, defendants appeal.

Judgment affirmed.

For the Defendants and Appellants, the cause was submitted upon the brief of Franklin B. Sheldon of Riverton, Wyoming.

POINTS OF COUNSEL FOR APPELLANTS.

The duty to publish notice to creditors is usually imposed by statute upon the executor or administrator, and that duty he is directed to perform immediately upon appointment to office. The requirement of such a notice is said to come from the practice of the English chancery courts, where notices were customarily issued in administering an estate, requiring creditors to file their claims with the executor within a certain time. The purpose of the notice, it is well settled is to start running the "statute of nonclaim," or that special statute of limitations which bars all claims not presented in probate within the time specified in the notice to creditors. When such a notice is published in compliance with the statute, the preceeding is substantially one in rem and binds all the world. Bancroft's Probate Practice Vol. 3, P. 1354.

While proceedings to have a homestead set over are in the nature of proceedings in rem where notice is required by statute of the hearing, the giving of such notice is said to be a jurisdictional prerequisite. Bancroft's Probate Practice Vol. 2, Pg. 1292.

Curative acts cannot cure a want of authority to act at all, so that defects and omissions which go to the jurisdiction of a board to act at all and which make their actions absolutely void cannot be cured in this manner. In no case will a curative statute be construed to validate acts which the legislature could not have previously authorized, and in no event will their retrospective operation be construed to deprive third parties of vested rights. 59 C. J. 1179, Sec. 713.

For the Plaintiffs and Respondents, the cause was submitted upon the brief of Donald Spiker of Riverton, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS

Notice to creditors is in the nature of process. Statutes relating to the notice must be complied with in all essentials in order to bar claims not presented. But the matter is purely procedural and is one in which creditors have no vested right. The legislature therefore has power to pass laws curing defects pertaining to such notices as have theretofore been given. A change, moreover, in provisions for notice to creditors and establishing a statute of limitations or of non-claim relates to a mere matter of procedure and does not constitute an interference with vested rights, even where made applicable to estates already in process of administration. Bancroft's Probate Practice, Vol 3, Sec 756, Pg. 1355. Davey v. McShane, 47 S.D. 265, 197 N.W. 680.

As stated in Bancroft's Probate Practice, Vol. 3, Page 1355, the publication of notice to creditors is a special statute of limitations commonly known as "Statute of Non-Claim". The purpose of the notice to creditors and special limitations upon time for filing claims, the fixing of a period of time within which to allow or reject claims, filing suit thereon and other similar provisions is to provide a speedy and orderly method of settling estates. However even in lieu of the special "Non-claim" statutes the general statute of limitations, Article 5, W.C.S. 1945 would bar all claims within a period of ten years or less. It would therefore appear that in enacting Section 6-2309 W.C.S. 1945, the legislature had in mind to pass a curative act that would after ten years definitely and positively invoke the General Statute of limitations to cure all defects in all notices required by the probate laws to be published. The failure of the court to make a show cause order and to publish the same is immaterial.

The procedure (Sec. 6-1505 W.C.S. 1945) to set aside a homestead was placed in the body of our law by Chapter 28, Laws of 1919. It being a statutory procedure and as such subject to be dispensed with by the legislature the legislature has power to dispense therewith by a curative act. Where jurisdiction has been established, all presumptions must be made in favor of what does not appear. 21 A. J. 753.

The rule with respect to statutes curing defects in legal proceedings amounting to mere irregularities, not extending to matters of jurisdiction, and in the absence of constitutional limitations, is that if the thing wanting or not done and contituting the defect have dispensed with by prior statute, the legislature has the power to dispense with it by subsequent statute; and if the irregularity consists in doing some act or in the method of doing it, which the legislature might have made immaterial by prior law, it may be made immaterial by a subsequent law. 11 A. J. Sec. 381, p. 1211.

BLUME, Justice. RINER, C. J., and KIMBALL, J. Concur.

OPINION

BLUME, Justice.

This is an action for a declaratory judgment. It appears herein that one John D. Carmichael died testate on December 18, 1923 in Fremont County, Wyoming, and was the owner of Lots 15 and 16 in Block 24 of the Town of Riverton in Fremont County, Wyoming. He left certain bequests to his brothers and sisters and the residue of his estate to his wife, Blanche Carmichael. The decedent's will was admitted to probate and an administrator with the will annexed was appointed on February 17, 1924. By order of the court made on June 25, 1924, the property was set off to Blanche Carmichael as a homestead pursuant to a petition filed by her. On November 29, 1926, a decree of final settlement and distribution was made in the estate and the administrator with the will annexed was discharged. The files in the estate do not disclose that notice to creditors or notice in connection with setting off the homestead to the widow was ever given or published as required by statute. It further appears that subsequent to the final settlement of the estate, the plaintiffs and respondents, Adam Addison and Stella Addison, obtained title to the property. They entered into a contract with the defendants and appellants herein, Kenneth O. Fleenor and Emma Alice Fleenor, for the sale of Lot 15 above mentioned, agreeing to furnish the purchasers with a merchantable title. When the title was examined, the purchasers objected thereto for the reason that the requisite notices as above mentioned were not given. The sellers however maintained that the title was validated by virtue of Section 6-2309 W.C.S. 1945, reading as follows: "In any estate, wherein a decree of flnal settlement and distribution is or has been entered by any court of this State it shall, after ten (10) years from the date of such decree, be conclusively presumed that all notices required by law have been published for the times and in the manner required by law." The court held the contention of the plaintiffs herein to be correct and entered a decree that the title to the property was merchantable. From that decree, the defendants have appealed to this court.

Counsel for both parties in the case regard the statute in question as a curative act. The court also so treated the enactment. Hence we shall, for the purpose of this case, consider the statute in the same light in rendering this decision. A curative enactment may validate any proceeding which the legislature might have authorized previously, or may make immaterial anything which it might have admitted in the original act. State ex rel. vs. Snyder, 30 Wyo. 287, 301, 219 P. 735. Some notice in probate proceedings, however, even though they are proceedings in rem or in the nature of proceedings in rem, is essential in order to constitute due process of law, and in the absence of any notice whatever, they are void. 1 Bancroft's Probate Practice, page 91; 16 C. J. S. 1252-1253; Freeman on Judgments (5th Ed.) Section 1530; Carter vs. Frahm, 31 S.D. 379, 392; 141 N.W. 370; Woodruff vs. Taylor, 20 Vt. 65; Herman on Estoppel and Res Judicata, Section 291; 50 C. J. S. 549-550. In other words, the requirement that some notice be given is jurisdictional. The legislature cannot, by a curative act, validate jurisdictional defects. It cannot by such act inject life into a proceeding which, for total want of notice, is lifeless. 59 C. J. 1178-1179; 16 C. J. S. 875 and subsequent pages; Patton on Titles, Section 58; 2 Cooley, Constitutional Limitations (8th Ed.) 790-792. In Dunkum vs. Maceck Bldg. Corp., 256 N.Y. 275, 176 N.E. 392, the court said: "The legislature cannot, however, by its fiat make legal a deed which was theretofore absolutely void because of jurisdictional defects. A curative act enacted for such a purpose is unconstitutional and void. It is an attempt to deprive the owners of the land of their property without due process of law." In 59 C. J. 1179, it is said:

"They (curative acts) are effective to cure all defects resulting from a failure to comply with provisions which are merely directory of the mode of the exercise of the power, and operate to render immaterial a portion of prescribed proceedings which the legislature could originally have dispensed with, but which, as the law stood, were material and rendered the proceedings void. However, curative acts cannot cure a want of authority to act at all, so that defects and omissions which go to the jurisdiction of a board to act at all and which make their action absolutely void cannot be cured...