Alexander v. Highfill

• Decision Date: 30 July 1943
• Docket Number: 28966.
• Citation: 18 Wn.2d 733,140 P.2d 277
• Parties: ALEXANDER v. HIGHFILL.
• Court: Washington Supreme Court

140 P.2d 277

18 Wn.2d 733

ALEXANDER v. HIGHFILL.

No. 28966.

Supreme Court of Washington, En Banc.

July 30, 1943

Action by Edward H. Alexander, as administrator of the estate of Arthur F. Alexander, deceased, against John A. Ferguson to recover debt allegedly due on a contract. The defendant died and Hattie Templeton Highfill, as executrix of the estate of John A. Ferguson, deceased, was substituted as defendant. From a judgment dismissing the action, plaintiff appeals.

Reversed with instructions.

Appeal from Superior Court, Klickitat County Howard J. Atwell, judge.

D. W Zent, of Pasco, for appellant.

Bonsted & Nichoson and F. C. Palmer, Jr., all of Yakima, for respondent.

SIMPSON Chief Justice.

In March, 1941, plaintiff instituted this action against J. A Ferguson, claiming a debt due on a contract. Summons and complaint were served on defendant, November 6, 1941. Mr Ferguson died, December 4 of that year. His will was admitted to probate and Hattie Templeton Highfill appointed executrix, December 12, 1941. She qualified as such and notice to creditors was duly published, commencing December 18, 1941. Within ninety days after the first publication of notice to creditors, plaintiff presented a motion to have the executrix of the John A. Ferguson Estate substituted as defendant in this action. August 11, 1942, an order was entered, substituting the executrix as defendant. At the hearing upon the motion, the executrix appeared specially and objected to the granting of the motion for substitution on the ground that no claim had been filed with the executrix as called for in the notice to creditors. Subsequent to the service of the motion for substitution, plaintiff served and filed an amended complaint, and a few days thereafter, the executrix filed an answer in which she, preserving her special appearance, admitted certain payments as alleged in the complaint, denied generally all other allegations, and set up the affirmative defense that no claim had been filed as required by the notice to creditors. Plaintiff replied, admitting the allegations of the affirmative defense, except an allegation that the plaintiff's claim was barred for failure to comply with the provisions of Rem.Rev.Stat. § 1484. Thereafter, Hattie Templeton Highfill moved for an order and judgment of dismissal on the pleadings, for the reason that the reply admitted the material allegations of the affirmative defense. The motions were heard September 22, 1942, and an order was entered on that date, granting defendant's motions. Judgment was thereupon entered, dismissing the action, from which order plaintiff has appealed, assigning error in granting the motions and in entering a judgment of dismissal.

The only question presented is whether in an action which survives the death of the defendant, a claim must be filed as required in the notice to creditors, where suit is pending at the time of the death of the decedent.

Appellant claims that it is not necessary to file such a claim where a motion for substitution of the representative of the estate was made within ninety days after the date of the first publication of the notice to creditors. He argues that, by the probate code of 1917, Laws 1917, c. 156, the requirement that a claim must be filed in such instance was removed, and cities for authority the case of Guaranty Trust Co. v. Scoon, 144 Wash 33, 256 P. 74.

Respondent, on the other hand, contends that the statute requires a claim to be filed in the estate, and cites for her authority the case of Roche v. McDonald, 158 Wash. 446, 291 P. 476.

Because it was the last statement concerning this rule, the court, with good reason, followed the rule laid down in the Roche case.

The case under consideration involves an interpretation of Rem.Rev.Stat. § 1477, which provides for publication of notice to creditors by the executor or administrator, Rem.Rev.Stat., § 1484, which says that no holder of any claim against an estate shall maintain an action thereon unless the claim shall have been first presented as provided in § 1477, and Rem.Rev.Stat. § 1486, which reads as follows: 'If any action be pending against the testator or intestate at the time of his death, the plaintiff shall within ninety days after first publication of notice to creditors, serve on the executor or administrator a motion to have such executor or administrator, as such, substituted as defendant in such action, and, upon the hearing of such motion, such executor or administrator shall be so substituted, unless, at or prior to such hearing, the claim of plaintiff, together with costs, be allowed by the executor or administrator and the court. After the substitution of such executor or administrator, the court shall proceed to hear and determine the action as in other civil cases.'

The case of Guaranty Trust Co. v. Scoon, supra, involved a claim for unpaid stock subscriptions against several stockholders of an insolvent corporation. The case had been Before this court on a previous occasion, when the amounts assessed were substantially reduced. It was argued on the appeal that no judgment should have been rendered against the estate of R. H. Wilkinson, one of the defendants, because no claim was filed in his estate. In passing upon that question, this court said [144 Wash. 33, 256 P. 75]: 'The record shows he was an original party defendant when the present action was commenced, and was served with summons and complaint, and appeared in the action. Thereafter he died, and the duly appointed executrix of his estate was substituted for him, and personally as such executrix was served with a summons and complaint in the action. Thereafter, upon stipulation of the parties approved by the probate department of the superior court, the case proceeded against her as such executrix. There was no error in the judgment simply because a formal verified claim was not presented to the executrix. The estate had its day in court.'

Without referring to this case, this court subsequently rendered a decision in the Roche case which appears to be, so far as this question is concerned, contrary to the holding just quoted. The Roche case involved a complicated set of facts. The plaintiff assignor secured a judgment against the McDonalds in the superior court in an action involving a stock transaction. The wife appealed from the separate judgment against her and prevailed in this court. The judgment creditor then assigned the judgment to Roche, who sued McDonald in Oregon, where he was sojourning at the time, and obtained a judgment in that state. McDonald returned to this state, and Roche instituted an action against him based on the Oregon judgment, in which action McDonald prevailed in the trial court and on appeal. However, the United States supreme court reversed the judgment, and when the case was finally returned to the trial court, McDonald amended his answer and set up new and additional defenses. He died Before issue was joined. Roche then filed a claim in the estate which was based on the Oregon judgment. The claim was rejected, and he then instituted another action which ignored the one then pending on the Oregon judgment. Various defenses were interposed, and Roche prevailed in the trial court. On appeal the executrix contended, among other grounds for reversal, that an independent claim could not be presented in the probate proceedings, and, upon rejection, another action instituted; that the plaintiff was required by the statutory provision to proceed in the original action pending at the time of the death of McDonald by substituting the executrix as defendant. In passing upon the question just mentioned, the court referred to Rem.Rev.Stat. § 1484, and stated [158 Wash. 446, 291 P. 478]:

'It is the argument of the executrix that this statute provides an exclusive remedy in situations such as is here presented; that the remedy of the common law is abolished; and that now a claimant whose claim is in suit at the time of the death of the defendant may not present his claim to the defendant's executor and sue upon the claim, if rejected, in an independent action, but must in such a case substitute the executor as defendant in the pending cause, and continue its prosecution in that action.

'But we are not able to follow the appellant. It is true that at common law the death of a sole defendant abated the action, and this whether the action was or was not founded on a liability which would survive the death. In the case of the death of the defendant pending the action, the plaintiff was required to begin anew against the personal representatives or successors in interest of the deceased defendant. He could not under that procedure substitute the representative or the successors in interest as parties defendant as defendants in the action. No doubt, the statute allowing a substitution was intended to relieve from the inconveniences and hardships that sometimes followed from the common-law rule, but its counterpart is found in the English statutes, in the statutes of the United States, and in the statutes of every state of the Union, yet we are not advised that it has ever been held that it superseded the common-law rule.

'It is true, furthermore, that the probate statute has added an element necessary to be pursued in order to maintain a certain class of action where substitution is permitted. Whatever the rule may be where the action against the defendant was merely to establish a right, such as to determine a disputed title to property, quiet the title to property, and the like, the statute, in all actions where a money judgment is sought against the defendant, makes it a condition precedent to the continuance of the action against the personal representatives of the defendant...