Douglass v. Folsom

• Decision Date: 02 August 1893
• Docket Number: 1,381.
• Citation: 33 P. 660,21 Nev. 441
• Parties: DOUGLASS v. FOLSOM
• Court: Nevada Supreme Court

33 P. 660

21 Nev. 441

DOUGLASS v. FOLSOM

No. 1,381.

Supreme Court of Nevada

August 2, 1893

Syllabus by Bigelow, J.

1. It is unnecessary that the notice to be given by an executor or an administrator to the creditors of an estate should specify whether the place where the claims are to be presented is his place of residence, or his place of business.

2. Claims against an estate may be legally presented at the place where the notice directs them to be presented, without regard to whether the executor or administrator is there to receive them. His absence from the state makes no difference in this rule.

3. Under the statutes of Nevada, it is not a sufficient presentation of such a claim to hand it to the "attorney for the estate;" at least, not without showing that it actually reached the administratrix within the proper time for the presentation of claims.

4. There is no such officer as an attorney of record, or attorney generally, for an estate. An attorney's employment with reference to an estate must always be in a particular matter, and with that matter his legal connection with the estate ends.

Appeal from district court, Ormsby county; Richard Rising, Judge.

Action by J. M. Douglass against L. D. Folsom, administrator of the estate of C. C. Stevenson, deceased. Plaintiff had judgment from which, and an order denying a new trial, defendant appeals. Reversed.

Wm Woodburn, J. L. Wines, and Trenmore Coffin, for appellant.

F. M Huffaker, for respondent.

BIGELOW J.

The only question necessary to be considered in this case is that concerning the presentation of the plaintiff's claim to the executrix. The record shows that on April 20, 1891, she duly published a notice requiring "all persons having claims against the said deceased to exhibit them, with the necessary vouchers, within four months after the first publication of this notice, to the said executrix, at the residence of John G. Fox, in Carson City, Ormsby county Nevada. Dated April 20, 1891. [Signed] Ellen M. Stevenson Executrix of the Estate of C. C. Stevenson, Deceased. T. Coffin, Attorney for the Estate." This notice was sufficient. The statute (St. 1891, p. 105) does not require that the notice shall specify whether the place where the claims are to be exhibited is the place of the executor's residence, or the place for the transaction of his business, but only that the designated place shall in fact be one or the other. The only purpose of this provision was to fix some convenient place for the presentation of the claims, where the executor or administrator would be most likely to be found, or, if not found there, where the claims could be left for him. Neither the letter nor the spirit of the act requires that the notice shall state which character the designated place bears. Hoyt v. Bonnett, 58 Barb. 529, 50 N.Y. 542.

The plaintiff's claim was not in fact presented to the executrix, nor was it presented at the place designated in the notice, but was handed to Trenmore Coffin, as the attorney for the estate, in Virginia City, where he was temporarily, upon business. The plaintiff's attorney testified that, when he presented the claim to Coffin, he told him that if it was paid without delay the plaintiff would deduct $2,500 therefrom. Coffin gave a slightly different version of this conversation, but not differing in any point material to this decision. He also testified that soon after this he was taken sick, and did not communicate with or see the executrix until the 15th or 20th of December of that year,--long after the period for presentation of claims had expired,--when he told her of the offer made by the plaintiff, which she refused to accept; that the claim was never presented or shown by him to the executrix, but, upon her refusal to accept the plaintiff's offer, he returned it to the plaintiff's attorney, with a statement to that effect. If we reject this testimony as untrue, then there is nothing to show that the executrix ever knew anything about the claim until the commencement of the action; so this would not help the plaintiff's case any.

The plaintiff's attorney argues that presentation to Coffin should be held sufficient, because, before the four months for the presentation of claims had expired, the executrix left the state, and remained absent until the 24th day of December, 1891; that it was impossible to present it to her during the time of her absence, and consequently presentation to the attorney was sufficient. Gen. St.

§ 2797 as amended in 1891, requires the executor or administrator to give notice to the creditors of the deceased to exhibit their claims, within four months after the first publication of the notice, "to such executor or administrator." Section 2798, that, if not so presented, with certain exceptions, inapplicable here, the claim shall be barred forever. Section 2799, that every claim presented to the administrator shall be supported by the affidavit of the claimant. Section 2800, that the probate judge may present a claim "to the executor or administrator." Section 2801, that, when a claim has been presented to "the executor or administrator," he shall indorse thereon his allowance or rejection, with the day and date thereof; that if the "executor or administrator" refuses or neglects to indorse his action on the claim for 10 days after it is presented to him, such neglect or refusal may be deemed equivalent to a rejection; that, if presented "to the executor or administrator" before the expiration of the time for the presentation of claims, he may act upon it afterwards. Section 2803, that, when a claim is rejected "by the executor or administrator," suit shall be brought upon it within three months, or it shall be barred forever. Section 2805, that no action shall be maintained upon any claim unless it shall have been first presented "to the executor or administrator." Section 2806, that the time during which there shall be a vacancy in the administration shall not be included within any limitations prescribed in the act. Many other parts of the probate act contain expressions similar to the above, but it is believed that the foregoing are the only ones bearing directly upon the matter in hand. Such being the case, can there be any possible doubt that the legislature intended to require the claims to be presented to the executor or administrator in person, and not to any one else? Has it not been said, in the plainest and most unequivocal language, with iteration and reiteration, that they must be presented "to the executor or administrator?" This is a matter entirely within the power of regulation by the legislature, and the only duty of the courts is to carry out the law as fixed by that body. There is here no room for construction. The language is absolutely plain, and there is nothing in the context, or in the application of the law, to lead the mind to the conclusion that the law-making body did not mean just what it has said. The only reason suggested for adopting any other construction is that as the executrix had left the state, so that claims could not be presented to her in person, presentation to the attorney should be held equivalent thereto. But not only, as we shall see, did her absence not prevent the proper presentation of the claim, but to so hold would be not to construe the law, but to make it in the first instance. Were we, in such a case as is presented here, authorized, in any particular, to add to or take from the statutory provisions, the most reasonable view would be that such absence from the state, instead of authorizing the presentation of claims to any one else than the executrix, would, during its continuance, suspend the running of the period for their presentation; but under a similar statute the supreme court of Alabama held that it had no power to vary its plain terms, and that absence from the state could not have even that effect. Bank v. Donelson, 12 Ala. 741; Lowe v. Jones, 15 Ala. 545. Nor does the hardship of the case press upon the court the necessity of stretching the law in order to afford a remedy in such a situation, if, indeed, this consideration should ever be given any weight. Notwithstanding the executrix's absence, there was still an easy and sufficient mode of presentation left. When the legislature provided for the notice to creditors, it must have had in view the fact that it could not be expected that ...