Flynn v. Driscoll

• Decision Date: 04 February 1924
• Citation: 38 Idaho 545,223 P. 524
• Parties: GEORGE B. FLYNN, JACK FLYNN, A. C. BROWN and L. R. ADAMS, Appellants, v. J. LYNN DRISCOLL and GOLDIE E. GRAY, Executors of the Estate of J. J. GRAY, Deceased, Respondents
• Court: Idaho Supreme Court

223 P. 524

38 Idaho 545

GEORGE B. FLYNN, JACK FLYNN, A. C. BROWN and L. R. ADAMS, Appellants, v. J. LYNN DRISCOLL and GOLDIE E. GRAY, Executors of the Estate of J. J. GRAY, Deceased, Respondents

Supreme Court of Idaho

February 4, 1924

EXECUTORS AND ADMINISTRATORS - PRESENTATION OF CLAIMS AGAINST ESTATE-ACTION AGAINST ESTATE-RIGHT TO AMEND AFTER SUIT IS COMMENCED.

1. C S., sec. 7585, which provides that if a claim against an estate is founded on a bond, bill, note or other instrument a copy of such instrument must accompany the claim, is mandatory, and the claim should not be allowed unless the statute is substantially complied with.

2. C S., sec. 7581, which provides that all claims arising upon contracts, whether the same be due, not due or contingent must be presented within the time limited in the notice or the same will be forever barred, unless within the exception there stated, requires such claims to be presented within the time and in substantially the manner prescribed by C. S secs. 7582 and 7585.

3. When a claim is rejected by the executor, administrator or the probate judge, C. S., sec. 7586, requires the claimant to bring suit in the proper court against the executor or administrator within three months after notice of its rejection, and this action can only be maintained when such claim has been first properly presented and has been rejected.

4. The "proper court" referred to in C. S., sec. 7586, is a court having civil jurisdiction to try the action, and it is an action at law.

5. C. S., sec. 7588, provides that: "No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator," unless within the exceptions enumerated, and unless the complaint in an action upon a rejected claim shows a due presentation prior to the commencement of the suit, it fails to state a cause of action.

6. An executor, being a trustee of the estate for the benefit of its creditors and heirs, cannot waive any provision of the statute affecting their substantial rights; and where a claim is founded upon a written contract, and its presentation to the executor or administrator is not accompanied by a copy of the same, the claim should be rejected, although such executor or administrator may have knowledge of the existence of such contract.

7. In probate proceedings, if a claim against an estate is not presented to the administrator or executor in substantially the manner prescribed by statute, and it is rejected, the claimant cannot, after he has commenced an action on such claim in "the proper court" referred to, amend such claim to conform to the requirements of the statute relative to the presentation of claims in probate proceedings, and thereby make it a valid presentation of the claim against the estate.

8. The commencement of an action against an administrator or executor in "the proper court," as required by C. S., sec. 7586, although commenced within the time limited for presenting claims against an estate, and the serving of summons upon such administrator or executor, is not the presentation of a claim in probate proceedings, so as to enable the claimant to maintain the action thereon.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Action to enforce claim for damages against an estate. From judgment of dismissal plaintiffs appeal. Affirmed.

Judgment affirmed, with costs to respondents.

E. R. Dampier and H. E. Hosier, for Appellants.

"It is not required that a claim against an estate should state the facts with all the preciseness and detail required in a complaint, and the sufficiency of such a claim is not to be tested by the rules applicable to pleadings." ( Thompson v. Koeller, 183 Cal. 476, 191 P. 927; 11 R. C. L. 194.)

"Where no objection is made by the executor or administrator against the sufficiency of the form in which a claim is stated he may be deemed to have waived the insufficiency. If he relies on defects in form in refusing to allow a claim, he should make known his objection seasonably." (Brown v. Forest, 95 Ind. 248; Waltemar v. Schnick's Estate, 102 Mo.App. 133, 76 S.W. 1053; Ross v. Knox, 71 N.H. 249, 51 A. 910; Merino v. Munoz, 99 A.D. 201, 90 N.Y.S. 985; Aiken v. Coolidge, 12 Ore. 244, 6 P. 712.)

C. S., sec. 7585, means that a copy of the contract on which the claim is based must accompany the claim unless such copy is already in the hands of the executors of the estate. ( White v. Deering, 38 Cal.App. 516, 179 P. 401; Western State Life Ins. Co. v. Lockwood, 166 Cal. 185, 135 P. 496; In re Andersen's Estate, 101 Ore. 94, 188 P. 164, 198 P. 236; Pollitz v. Wickersham, 150 Cal. 238, 88 P. 911.)

It is not to be interpreted in such a way as to mean that the copy must and shall be forthwith attached to and made a part of the claim in the presentation. The mandatory act is the knowledge presented to the executors in written form. ( National Surety Co. v. Campbell, 108 Wash. 596, 185 P. 602.)

An amendment may be made to the claim so long as it does not change the original claim. (In re Howell, 179 Iowa 969, 162 N.W. 231; Chariton Nat. Bank v. Whicher, 163 Iowa 571, 145 N.W. 299; Baker v. Chittuck, 4 Greene (Iowa), 480; Chinn Land & Livestock Co. v. Stewart, 69 Colo. 598, 196 P. 189; Kirman v. Powning, 25 Nev. 378, 60 P. 835, 61 P. 1090; 24 C. J. 354; 11 R. C. L. 198.)

The district court has jurisdiction to allow an amendment to the claim. (Taylor v. Thieman, 132 Wis. 38, 122 Am. St. 943, 111 N.W. 229; Davis v. Superior Court, 35 Cal.App. 473, 170 P. 437; Herman v. Powning, supra; Chinn Land & Live Stock Co. v. Stewart, supra; White v. Deering, supra; Doolittle v. McConnell, 178 Cal. 697, 174 P. 305.)

The filing of the complaint in the district court and the issuance of the summons thereon against each of the executors constitutes a sufficient presentment of the plaintiffs' claim to the executors of the estate. (Schurmeier v. Connecticut Mut. L. Ins. Co., 171 F. 1, 96 C. C. A. 107; Weller v. Rensford, 185 Ala. 333, 64 So. 366; Easley v. Rowe, 138 Ark. 58, 210 S.W. 145; Ellison v. Allen, 8 Fla. 206; Scheel v. Eidman, 68 Ill. 193; Hanen v. Leander, 178 Iowa 569, 160 N.W. 18; Stewart v. Carr, 6 Gill (Md.), 430; Connecticut L. Ins. Co. v. Schurmeier, 117 Minn. 473, Ann. Cas. 1913D, 462, 136 N.W. 1; Smith v. Smith, 4 Miss. 216; State v. Holtcamp, 266 Mo. 347, 181 S.W. 1007; Ruth v. Davenport, 18 N.Y.S. 721; McLeod v. Graham, 132 N.C. 473, 43 S.E. 935; Clayton v. Dinwoodey, 33 Utah 251, 14 Ann. Cas. 926, 93 P. 723.)

Wood & Driscoll, for Respondents.

The points involved are purely statutory, and cases under different statutes are not in point. (1 Church on Probate, p. 5.)

Proper presentation of a claim is indispensable. (Blake v. Lemp, 32 Idaho 158, 179 P. 737; Lundy v. Lemp, 32 Idaho 162, 179 P. 738.)

A claim must show a substantial cause of action, or at least a prima facie liability on the part of the estate; must show the nature, character and amount of the claim sufficiently to enable the executors and judge to act advisedly on it, and enable the heirs and their creditors to understand it on final accounting; and must be sufficient to bar another cause of action on the same claim. (Etchas v. Arena, 127 Cal. 588, 60 P. 45; Pollitz v. Wickersham, supra; Kirfeld's Estate, 37 S.D. 292, 157 N.W. 1057; Branch v. Lambert, 103 Ore. 423, 205 P. 995.)

It must be sufficiently intelligible that it can be determined from the claim itself whether the action brought is based on the claim, for suit can be brought only on the identical claim presented. (Vanderpool v. Vanderpool, 48 Mont. 448, 138 P. 772; Giles v. Reed, 44 Cal.App. 367, 186 P. 614; Bechtel v. Chase, 156 Cal. 707, 106 P. 81; Zuhn v. Horst, 100 Wash. 359, 170 P. 1033.)

If the claim is founded on a written instrument, a copy of such instrument must accompany the claim. (C. S., sec. 7585; Turner's Estate, 128 Cal. 388, 60 P. 967; Stockton Savings Bank v. McCown, 170 Cal. 600, 150 P. 985; Thompson v. Koeller, 183 Cal. 476, 191 P. 927; Davis v. Superior Court, 35 Cal.App. 473, 170 P. 437; Vanderpool v. Vanderpool, 48 Mont. 448, 138 P. 772; Burnett v. Neraal (Mont.), 214 P. 955; Bank of Sonoma County v. Charles, 86 Cal. 322, 24 P. 1019; Perkins v. Onyett, 86 Cal. 348, 24 P. 1024.)

A general rejection does not waive the deficiencies noted in presentation (sec. 7584, C. S.), nor has an executor power to waive them. (Note, 11 A. L. R. 246; Schneeberger v. Frazer, 36 Idaho 737, 213 P. 568; Hart v. Calahan, 46 Cal. 222; Dakota Nat. Bank v. Kleinschmidt, 33 S.D. 132, 144 N.W. 934; Detroit Automatic Scale Co. v. Torgensen, 36 S.D. 564, 156 N.W. 86; Burke v. Maguire, 154 Cal. 456, 98 P. 21; Boyce v. Fiske, 110 Cal. 107, 42 P. 473; O'Keefe v. Foster, 5 Wyo. 343, 40 P. 525; Empson v. Fortune, 102 Wash. 16, 172 P. 873; Ward v. Magaha, 71 Wash. 679, 129 P. 395; Seattle Nat. Bank v. Dickinson, 72 Wash. 403, 130 P. 372; Branch v. Lambert, 103 Ore. 423, 205 P. 995.)

The institution of an action in the district court does not constitute presentment as required by statute, (a) because secs. 7581, 7582, 7584, 7585, 7586, define presentation otherwise, and secs. 7588 and 7590, expressly prohibit suit until there has been a presentation; (b) under art. 5, sec 21 of the constitution, and Estate of McVay, 14 Idaho 56, 93 P. 28, the probate court has exclusive jurisdiction of the allowance of claims; (c) instituting suit affords no compliance with sec. 7582, C. S., as to vertification of claims, and this is mandatory. (Schneeberger v. Frazer, supra; Perkins v. Onyett, 86 Cal. 348, 24 P. 1024; Burke v. Unger, 88 Okla. 226, 212 P. 993; Ullman v. Adler, 59 Mont. 232, 196 P. 157; First Security etc. Co. v....