Dillabough v. Brady

• Decision Date: 22 March 1921
• Docket Number: 16240.
• Court: Washington Supreme Court
• Parties: DILLABOUGH v. BRADY.

196 P. 627

115 Wash. 76

DILLABOUGH v. BRADY.

No. 16240.

Supreme Court of Washington

March 22, 1921

Department 1.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Margaret Jane Dillabough against John W. Brady, as administrator of the estate of George Dillabough, deceased. Judgment of dismissal, and plaintiff appeals. Affirmed.

Anthony M. Arntson, of Tacoma, for appellant.

F Campbell, of Tacoma, for respondent.

BRIDGES J.

This case chiefly concerns the sufficiency of the verification of a claim of indebtedness presented to an administrator. The facts were as follows: Within the statutory time for presenting and filing claims, the appellant presented her claim to the respondent, as administrator of the estate of George Dillabough, deceased and caused it to be filed. This claim appears to have been drawn by attorneys in Canada, and does not follow the usual form. However, it is unquestionably sufficient, unless the failure of the verification to state that there were no offsets makes it bad. The claim was rejected by the administrator, and this suit was instituted thereon. The claim was made a part of the complaint, and a demurrer thereto was sustained. Thereupon, and after the time provided by the statute for presenting claims had expired, the plaintiff, with permission of the probate court, filed with the clerk of court, and served upon the administrator, an amended claim, which was in substance the same as the original claim, except it was verified as the statute requires. These additional facts were then pleaded in an amended complaint. A demurrer thereto was sustained, and the action dismissed. From that judgment the plaintiff has appealed.

Appellant first contends that the original claim, which was set up in the original complaint, was in law sufficient, and that the court erred in sustaining the demurrer to the original complaint. The 1917 Probate Law, found at page 642, Laws 1917, is controlling of this case. Section 107 provides that if a claim be not presented and filed within six months after the date of the first publication of notice to creditors, it shall be barred. Section 114 provides that no action shall be maintained on any claim against a decedent's estate, unless the same shall have been presented to the administrator, as in the act provided. Section 108 provides:

'Every claim served and filed as above provided shall be supported by the affidavit of the claimant that the amount is justly due, that no payments have been made thereon, and that there are no offsets to the same to the knowledge of the claimant.'

Section 109 provides that----

'When a claim, accompanied by the affidavit required in the preceding section, has been served and filed, it shall be the duty of the executor or administrator to indorse thereon his allowance or rejection, with the day and date thereof.'

Section 112 provides that suit on any rejected claim must be brought within 30 days after notification of the rejection. It will thus be noticed that the statute expressly requires that the affidavit to a claim must contain the statement that there are no offsets. We have held that these provisions of the Probate Code are mandatory and must be strictly followed. Empson v. Fortune, 102 Wash. 16, 172 P. 873, and cases there cited; Ward v. Magaha, 71 Wash. 679, 129 P. 395; In re Parkes' Estate, 105 Wash. 586, 178 P. 830; First Security & Loan Co. v. Engelhart, 107 Wash. 86, 181 P. 13. We have also held that the administrator or executor cannot waive these statutory requirements. Baumgartner v. Moffatt, 194 P. 392, and cases there cited; In re Thompson's Estate, 188 P. 784.

In the case of Empson v. Fortune, supra, we discussed the question of necessity of supporting a claim by an oath, and after citing cases, we said:

'By these decisions it has become the settled law of this state that the proper prosentation of a claim is a fact to be proven essential to the cause of action, and that an executor or administrator cannot, because of the mandatory provisions of our claim statute, waive such presentation, so as to estop himself from defending upon the ground of want of such proper presentation.'

In the case of First Security & Loan Co. v. Englehart, supra, discussing this general question, we said:

'Appellant's second point is important, because only an unsworn statement of the claim was furnished by the bank. We have seen that the statute at all times since 1897 required every executor to give notice to creditors to present their claims. By section 108 (page 673) of the Probate Code of 1917, 'every claim served and

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