Dowd v. Estate of Dowd
| Decision Date | 29 November 1940 |
| Docket Number | 6799 |
| Citation | 108 P.2d 287,62 Idaho 157 |
| Parties | LEONORE D. DOWD, Respondent, v. THE ESTATE OF DAVID F. DOWD, Deceased, Appellant, and DAVID G. DOWD, GERTRUDE (DOWD) BARTLETT, JENNY (DOWD) BENTHIN, Intervenor-Appellants |
| Court | Idaho Supreme Court |
Rehearing denied January 3, 1941.
APPEAL AND ERROR-AGGRIEVED PARTY - ESTATE - PROBATE - CLAIMS AGAINST ESTATE-PRESENTATION-EVIDENCE-WITNESSES.
1. The test of whether a party is an "aggrieved party" so as to be entitled to appeal is whether the party would have had the thing if the erroneous judgment had not been entered if so, he is "aggrieved." (I. C. A., sec. 11-103.)
2. The estate of a deceased person was an "aggrieved party" by judgment for administratrix in action on rejected claim of administratrix, and hence could appeal since the estate would have to pay the judgment if it were not reversed, vacated or modified. (I. C. A., sec. 11-103.)
3. The statutes governing actions by executors or administrators on rejected claims against the estate manifest intention that action be against the estate and not against the probate judge, and hence the estate as such can appeal from judgment for administratrix. (I. C. A., secs. 15-604, 15-605, 15-607 to 15-609, 15-621.)
4. A judgment of district court on verdict for administratrix in action by administratrix on claim against the estate was a "final judgment" and appealable. (I C. A., secs. 11-201, 15-1115, 15-1118, 15-1119.)
5. The creditor of an estate, suing on a rejected claim, could not allege or prove any other or different cause of action than that stated in the claim.
6. The purpose of requiring claim against estate to be properly made out, verified and presented to probate court is that claim should give notice to probate judge and all persons interested in the estate of the character and nature of the claim, and furnish legal representative of estate with sufficient information to enable him to properly investigate the claim before allowing or rejecting it. (I. C. A., secs. 15-604, 15-605, 15-607 to 15-609, 15-621.)
7. In action by widow as administratrix against estate on rejected claim, order requiring widow to elect between cause of action for loan to deceased during lifetime and cause of action on acknowledgment of indebtedness and agreement to repay executed by deceased, did not change status of the claim as presented to probate judge so as to preclude recovery, but the action was still on contract. (I. C. A., secs. 15-609, 15-621.)
8. A written acknowledgment granting extension of time for husband to repay loans made by wife, though for a lump sum, was merely an acknowledgment of indebtedness coupled with extension of time for payment, so as to prevent running of limitations, and did not disprove existence of contract to pay the original loans so as to prevent reliance by wife on such contract in her action against husband's estate on rejected claim for amount of moneys advanced.
9. The amendment limiting statutory prohibition of testimony on claim or demand against estate to testimony as to any "communication, or agreement, not in writing," manifested purpose of relaxing instead of restricting the previous rule, and under the amendment claimant against estate may testify to occurrences in relation to or in connection with a contract or agreement in writing, such as delivery or possession of agreement, payment or nonpayment, rendition of services, or furnishing goods or material under the agreement, but the prohibition extends to and comprehends contracts and agreements not in writing. (I. C. A., sec. 16-202.)
10. Where husband's contract to repay loans made by wife was evidenced by writing, other facts involved in the transaction, including release of mortgage and return of mortgage and note to husband, and redelivery of the agreement to wife, were collateral to the writing and did not in effect establish a new and independent contract, and hence testimony concerning such facts was not inadmissible under the statutory amendment in wife's action against husband's estate as involving a "communication, or agreement, not in writing." (I. C. A., sec. 16-202.)
11. Evidence held to authorize verdict for widow in her action against husband's estate on rejected claim on husband's agreement to repay moneys advanced by wife.
12. The trial court's action in requiring arguments to be made before instructing the jury was not reversible error in absence of showing that request to the contrary was called to trial judge's attention or ruled on. (I. C. A., sec. 7-206.)
APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.
Action by administratrix against estate, for recovery on rejected claim by probate court. Motion to dismiss appeal denied. Judgment for plaintiff affirmed.
Judgment affirmed, with costs to respondent.
Alvin Denman, for Appellant Estate.
A complaint on an unintelligible creditor's claim rejected by the probate court does not, and cannot, state a cause of action. (Vanderpool v. Vanderpool, 48 Mont. 448, 138 P. 772; Flynn v. Driscoll, 38 Idaho 545, 556, 223 P. 524, 34 A. L. R. 352.)
Where the plaintiff has elected to pursue one of two causes of action contained in the complaint, the court should, upon motion of the defendant, strike all the allegations pertaining exclusively to the other cause of action. ( Harshbarger v. Eby, 28 Idaho 753, 757, 156 P. 619, Ann. Cas. 1917C. 753; Harbour v. Turner, 48 Idaho 364, 368, 282 P. 79.)
Under the provisions of section 16-202, I. C. A., the plaintiff was incompetent to testify to the release and surrender of the note and mortgage and the re-delivery of the acknowledgment of indebtedness for the purpose of showing an unwritten implied contract to revive the acknowledgment of indebtedness. (Chapman v. Dougherty, 87 Mo. 617, 56 Am. Rep. 469, 472; Walls v. Ritter, 180 Ill. 616, 54 N.E. 565.)
Where a litigant requests the court to instruct the jury before argument, it is error to instruct after argument. (Sec. 7-206, subd. 4, I. C. A.; John Bright Shoe Stores Co. v. Scully, 24 Ohio App. 15, 156 N.E. 155; Dunham v. Mulby, 24 Ohio App. 509, 156 N.E. 608.)
Otto E. McCutcheon, for Respondent.
A claim against the estate of a decedent is sufficient if it is verified substantially as provided in section 15-605 and contains a substantially correct statement of the demand: but its form does not have to be as technically correct as a pleading. (Flynn v. Driscoll, 38 Idaho 545, 566, 223 P. 524, 34 A. L. R. 352; Hubbard v. Ball, Executor, etc., 59 Idaho 78, at 85, 4th paragraph, 81 P.2d 73; 3 Bancroft's Probate Practice, p. 1532, note 6.)
In a "claim" against an estate the facts stated therein should not be too strictly construed for such a claim need not be drawn with the precision of a pleading; the sufficiency should not be tested by the rules of pleading; and even variances which might otherwise be deemed important in a pleading are of no consequence. (3 Bancroft's Probate Practice, sec. 882, p. 1511, Ruble v. Richardson, 188 Cal. 150, 204 P. 572; Doolittle v. McConnell, 178 Cal. 697, 174 P. 305; Pollitz v. Wickersham, 150 Cal. 238, 88 P. 911 at 915.)
Where a party files a written request that the jury be instructed before argument subsequently permits the argument to proceed on the order of the court and without objection such party waives any rights he may have acquired under the written request. (Schmidt v. Williams, 34 Idaho 723, 203 P. 1075.)
Budge, J., took no part.
--Respondent, Leonore D. Dowd, is the widow of David F. Dowd, deceased, and is the administratrix of her husband's estate. She had a claim against and in conformity with the provisions of sec. 15-621, I. C. A., the claim was presented to the probate judge who rejected the same; thereupon she instituted an action in the district court against the estate and recovered a judgment. "The Estate of David F. Dowd, Deceased," appealed from the judgment as did also David G. Dowd, Gertrude Dowd Bartlett and Jenny Dowd Benthin, who as heirs of the decedent had intervened in the case. Respondent has moved to dismiss the appeal on the following grounds:
Taking up the grounds of the motion in the order in which they are stated, it would seem that the first contention is answered by this court in State v. Eves, 6 Idaho 144, 148, 53 P. 543:
(Washington County Abstract Company v. Stewart, 9 Idaho 376, 381, 74 P. 955.)
These cases have been cited and the rule there stated followed continuously ever since it was announced: Hanson v Weniger, 31 Idaho 540, 543, 173 P. 1085; Rural High School Dist. No. 1 v. School Dist. No. 37, 32 Idaho 325, 329, 182 P. 859; Oatman v. Hampton, 43 Idaho 675, 691, 256 P. 529; Renfro v. Nixon, 55 Idaho...
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