Burnett v. Neraal

• Decision Date: 01 May 1923
• Docket Number: 5122.
• Citation: 214 P. 955,67 Mont. 189
• Parties: BURNETT v. NERAAL.
• Court: Montana Supreme Court

214 P. 955

67 Mont. 189

BURNETT v. NERAAL.

No. 5122.

Supreme Court of Montana

May 1, 1923

Appeal from District Court, Glacier County; John J. Greene, Judge.

Action by Mary F. Burnett against Paul O. Neraal, as administrator of the estate of Glen Bisard, deceased. From judgment giving her insufficient relief, the plaintiff appeals. Affirmed.

Wiley J. Shannon, of Cut Bank, for appellant.

Anker O. Torrison, of Cut Bank, for respondent.

CALLAWAY C.J.

While the estate of Glen Bisard, deceased, was in process of administration, Mary F. Burnett presented to the defendant Paul O. Neraal, as administrator of the estate, a duly verified claim for money alleged to be due her on an open account and also upon a promissory note. No question is made concerning the sufficiency of the claim upon the account. Neither the original nor a copy of the note was attached to or accompanied the claim as presented to the administrator.

In passing, we observe that the claim does not advise who made the note nor to whom it was payable, but in view of what follows inquiry as to this is immaterial. The claim having been rejected, action was commenced within the time prescribed by statute. Upon trial the court entered judgment for plaintiff for the amount due on the open account, but disallowed that claimed on the note for the reason that neither the original nor a copy thereof was attached to or accompanied the claim. Plaintiff appeals from the judgment.

Section 10174, Revised Codes of 1921, provides for the presentation to the executor or administrator of claims against an estate and specifies how such shall be verified. It does not in terms set forth any requisite as to the substance or form of the claim to be presented, except that it does make provision that if the claim be not due when presented, or be contingent, the particulars of such claim must be stated.

Section 10177, after saying in substance that every claim allowed by the executor or administrator, and approved by the judge must within 30 days thereafter be filed in the court and be ranked among the acknowledged debts of the estate, to be paid in due course of administration continues:

"If the claim be founded on a bond, bill, note, or other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhibited, if demanded, unless it be lost or destroyed, in which case the claimant must accompany his claim by his affidavit, containing a copy or particular description of such instrument, and stating its loss or destruction. If the claim, or any part thereof, be secured by a mortgage or other lien which has been recorded in the office of the county clerk of the county in which the land affected by it lies, it shall be sufficient to describe the mortgage or lien, and refer to the date, volume, and page of its record. If, in any case, the claimant has left an original voucher in the hands of the executor or administrator, or suffered the same to be filed in court, he may withdraw the same when a copy thereof has been already, or is then, attached to his claim. A brief description of every claim filed must be entered by the clerk in the register, showing the name of the claimant, the amount and character of the claim, rate of interest, and date of allowance."

Sections 10174 and 10177 came into our statutes, respectively, as sections 151 and 154 of the Probate Practice Act, Revised Statutes of...