Gilder v. Warfield, 6882

CourtUnited States State Supreme Court of Idaho
Writing for the CourtBUDGE, C.J.
Citation120 P.2d 243,63 Idaho 328
PartiesHARRY VAN GILDER and MARGURIETE VAN GILDER, Respondents, v. JAMES WARFIELD, a minor, et al., Appellants
Decision Date13 December 1941
Docket Number6882

120 P.2d 243

63 Idaho 328


JAMES WARFIELD, a minor, et al., Appellants

No. 6882

Supreme Court of Idaho

December 13, 1941


In action to quiet title to realty which was conveyed by administratrix to plaintiff, a creditor of the estate, at regularly [63 Idaho 329] advertised private sale which was confirmed by order of the probate court, judgment for the plaintiff who paid for the land by being allowed credits for expenditures reasonably necessary in connection with the last illness of the decedent, was affirmed by a divided court.

APPEAL from the District Court of the Fourth Judicial District in and for Blaine County. Hon. D. H. Sutphen, Judge.

Action to quiet title. Held for plaintiffs. Affirmed.

Judgment affirmed. Costs to respondents.

H. A. Baker, for Appellants.

A guardian or administrator is without inherent right to borrow money and bind the estate for its repayment. He can borrow and bind the estate only when he has complied substantially with empowering statute or will. (Sec. 15-902 I. C. A.; Estate of Fleshman, 51 Idaho 312, 5 P.2d 727; Bancroft's Probate Practice, Sec. 365; Sandberg v. Denman. (Wash.) 24 P.2d 452; Wynn v. Mixon, (Ga.) 176 S.E. 637.)

Presentation of claim in manner and form required by statute is essential to the establishment of claim against the estate of a deceased person on an obligation incurred prior to death. (Sec. 15-604 I. C. A.; Sec. 15-605 I. C. A.; Sec. 15-611 I. C. A.; Sec. 15-607 I. C. A.; Sec. 15-608 I. C. A.; Blake v. Lemp, 32 Idaho 158, 179 P. 737; Lundy v. Lemp, 32 Idaho 162, 179 P. 738; Schneeberger v. Frazer, 36 Idaho 737, 213 P. 568.)

Administrator has no authority to waive due and strict compliance with the non-claim statute or to estop himself or heirs for asserting and relying upon non-compliance. (Flynn v. Driscoll, 38 Idaho 545, 223 P. 524, 34 A. L. R. 352; Dillabaugh v. Brady (Wash.), 196 P. 627; Empson v. Fortune (Wash.), 172 P. 873; Seattle Nat. Bank v. Dickinson (Wash.), 130 P. 372; Vanderpool v. Vanderpool (Mont.), 138 P. 772.)

Administrator can sell only for cash or on credit; only one holding mortgage or other lien is permitted to pay by issuance of receipt for amount bid. (Sec. 15-720 I. C. A.; Sec. 15-739 I. C. A.)

Bissell & Bird, for Respondents.

Right or wrong, the determination of the probate court in confirming the sale of this land to respondent that the sale was regularly noticed, regularly and fairly conducted, and was for the advantage, benefit and best interest of the estate and those interested therein cannot be questioned in this collateral proceeding. (Walker B. & T. Co., v. Steely, 60 Idaho 601; Burris v. Kennedy, 41 P. 458; Wood v. Roach, 14 P.2d 170.)

Respondent's money having been advanced and actually used for such items as expenses of last illness, doctors, nurses, hospital, funeral, burial and expenses of administration, presentment of claims was not necessary. (Secs. 15-1127, 15-801 and 15-1202 I. C. A.; Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73; In re Hansen's Estate 184 P. 197, 203; 11 Cal. Jur. 669; Porter v. Lewin, 55 P. 783; Bancroft Prob. Practice, sec. 781.)

Where all claims against an estate are paid except one, and the costs of administration are provided for, and said sole creditor purchases land of the estate at probate sale, crediting his bid on his debt is in effect a cash payment within the meaning of Section 15-720 I. C. A., since no one is injured or in a position to complain. (24 C. J. 642; Brown v. Nelms, 112 S.W. 373; King v. Gilreath, 45 So. 89; Setaro v. Pernigotti, 136 A. 571; In re Hemrich's Guardianship, 59 P.2d 748; Olmstead v. McCleary, 223 P. 15.)

BUDGE, C.J. Ailshie, J., concurs, Holden, J., concurs in the conclusion, GIVENS, J., concurring specially. Morgan, J., dissents.


[63 Idaho 330] BUDGE, C.J.

Action to quiet title, contested by the following heirs of Harry A. Warfield who died February 27, 1934. James aged 13 years, son of Warfield and his second wife, Nena S. Warfield, appearing through his guardian, E. E. Kearns, and as transferee of his halfbrother Thomas aged 22 years, son of Warfield and his first wife, now deceased. George and Alice, aged 9 and 6 years respectively, children of Warfield's third wife, [63 Idaho 331] Irene, appearing through their guardian ad litem, Irene Warfield. The widow, Irene, and a daughter, Maud, by Warfield's first wife, reached their majorities three years prior to the present action, and respondents' motion for non-suit was confessed as to them.

Early in 1929, Nena S. Warfield, then sole owner of the property here in controversy, became afflicted with a brain tumor, and was taken to a hospital at Twin Falls. March 1, 1929, pursuant to Warfield's request, C. Fred Howe was by the probate court of Blaine County duly appointed guardian of the person and estate of Nena S. Warfield, and thereafter qualified as such. Due to the serious illness of Nena S. Warfield and the nature of her ailment, it was decided that she should be taken to Mayo Brothers at Rochester. Whereupon her guardian Howe communicated with respondent Mr. Van Gilder (hereinafter referred to as 'respondent') who resides in Illinois and whose wife was Nena S. Warfield's sister. The following extract from one of a number of letters written respondent by guardian Howe reflects the unfortunate situation confronting Harry A. Warfield, his wife, Nena, and her guardian, Howe:

"Nena's expenses at the Hospital are rapidly using up all of her estate, and both on account of expense there, and the possible saving of her life, her movement from the Hospital should be made at the quickest possible moment.

"The Hospital management is somewhat urgent regarding the payment of their bill and to the first instant it is over $ 300.00, * * * * Dr. Alexander says if she is not to go to Mayo Bros., she should be removed from the Hospital to some private quarters and have a nurse stay with her, to reduce the present great expense. In fact the Hospital has intimated turning her out soon for debt and present lack of necessity for her to be there.

"* * * * I am enclosing a Court copy of the present law for Administrators and Guardians to follow, which same was passed by our last legislature, and by this I would be willing to issue, under sanction of the Court, Guardian's notes for the sum that you would advance for me to at once liquidate the pressing bills and give time to turn the Estate into cash.

[63 Idaho 332] " * * * * Now if you are desirous for the best interests for Nena's life and the saving of what is possible of her estate, remit at once to me a Bank draft for $ 1000.00 and I will execute to your order two notes, according to law, for like amount * * * * . This being done, I understand that Mrs. Van Gilder will meet Nena and the nurse upon arrival at Rochester and assume and pay Nena's and the nurses bills and expenses there and thereafter as long [120 P.2d 244] as they are kept there, and until Nena's estate may have liquidated funds to meet extended costs after paying your notes as proposed to issue.

* * * *

"Perhaps you may not understand that I am under Bonds to the Court for $ 1000.00 and therefore are [am] responsible to the Court and Bondsmen to administer according to law."

Replying to the above letter respondent on May 14, 1929, wired $ 1000 to guardian Howe, who gave respondent two notes evidencing said loan, one for $ 600 due nine months after date, the other for $ 400 due twelve months after date, each bearing seven per cent interest.

Nena S. Warfield died en route to Rochester on May 18, 1929, and her body was returned to Ketchum for burial. May 28th, Howe filed with the probate court his account of money received and expended, which on June 10th was duly approved by the probate judge, major items being as follows:

Transportation for Mrs. Warfield and her

nurse, cash used while traveling and

nurse's salary

$ 259.55

Twin Falls Hospital, May 17, 1929


Transportation back to Ketchum




Attorney for estate


Balance to nurse



$ 947.83

Having been duly appointed, and qualifying as, administrator of the Nena S. Warfield estate at Warfield's [63 Idaho 333] request, Howe, as administrator borrowed from respondent $ 300 and $ 500 on June 10 and July 15, 1929, respectively, each loan being evidenced by a promissory note bearing seven per cent interest. Upon all four of the notes heretofore referred to was written "This note is given and accepted under the authority of Section 7688-- Chapter 174 of Idaho Session Laws of 1929." Howe paid the $ 500 note on June 21, 1930, the others were renewed and interest paid from time to time as they became due. In borrowing the money, Howe, as guardian and administrator failed and neglected to comply with the provisions of Section 15-902, I. C. A. Respondent also failed to see that the provisions of the aforementioned statute were complied with, relying upon the representations of Howe that such would be done.

June 13, 1929, administrator Howe published notice to creditors. Respondent, when in Idaho in February, 1929, accompanied by his wife, visited his wife's sister, Nena, at the hospital in Twin Falls, at which time respondent paid certain hospital bills incurred in the care and treatment of Nena S. Warfield in the sum of $ 155.78, for which amount he filed a verified claim against the estate but filed no other claims. Certain doctors filed claims totalling $ 543.

Administrator Howe died February 6, 1935, at which time he, as guardian and administrator, had...

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