Gramm v. Lincoln

• Decision Date: 08 July 1958
• Docket Number: No. 15801.,15801.
• Parties: Gladys E. Lincoln GRAMM, Appellant, v. Elizabeth LINCOLN, Executrix of the Last Will and Testament of Henry Lincoln, Deceased, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

257 F.2d 250 (1958)

Gladys E. Lincoln GRAMM, Appellant, v. Elizabeth LINCOLN, Executrix of the Last Will and Testament of Henry Lincoln, Deceased, Appellee.

No. 15801.

United States Court of Appeals Ninth Circuit.

July 8, 1958.

COPYRIGHT MATERIAL OMITTED

Frank E. Chalfant, Sr., Raymond L. Givens, Boise, Idaho, for appellant.

Karl Paine, Joseph N. Leggat, Boise, Idaho, Leonard & Dole, Richard M. Leonard, Stuart R. Dole, San Francisco, Cal., for appellee.

Before ORR, POPE, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

The former wife of Henry Lincoln, deceased, brought this action against his widow, Elizabeth Lincoln, in her capacity as executrix of his estate. The original purpose of the action was to obtain specific performance of an agreement by Lincoln to pay alimony to plaintiff. In the alternative, the plaintiff, Gladys E. Lincoln Gramm, asked for judgment in the sum of $25,500 for unpaid alimony. Jurisdiction was based on diversity of citizenship. 28 U.S.C.A. § 1332.

Defendant moved for summary judgment. Plaintiff countered with a motion for leave to file an amended complaint in which Elizabeth Lincoln, "as an individual heir and legatee," would be named as an additional party defendant.

In the proposed amended complaint, the cause of action stated in the original complaint is set out as a first cause of action, but with a minor change in the form of relief requested, as noted below. A second cause of action is then added, in which it is sought to impress a constructive trust for the benefit of plaintiff upon $21,921.94, received by defendant from the estate as sole legatee. The theory of the second cause of action is unjust enrichment arising from constructive and extrinsic fraud.

The motion for leave to add another party defendant and to file an amended complaint was denied. The motion for summary judgment was granted, and such a judgment was entered. Plaintiff appeals.

The first specification of error presents the question of whether the trial court erred in denying the motion for leave to add another party and to file an amended complaint. The remaining thirteen specifications of error are directed to various phases of the second question raised on this appeal. That question is whether appellee was entitled to a summary judgment.

We will assume that the motion for leave to add another party and to file the amended complaint should have been granted. This will enable us to proceed at once to the more basic question of whether, on the pleadings (including the proposed amended complaint) and admissions on file, appellee was entitled to a judgment as a matter of law.¹

The material facts recited in these pleadings and admissions are not in dispute. Appellant and Henry Lincoln were divorced on March 2, 1937. A property settlement agreement, obviously drafted prior to the divorce, was executed on September 14, 1938. By the terms of this agreement, Lincoln agreed to pay appellant one hundred twenty-five dollars a month during the rest of his natural life.

Both parties to the agreement subsequently remarried. Appellant became a resident of California. Lincoln moved to Idaho. He failed to make the monthly payments called for in the agreement. By August, 1955, the total sum unpaid was $25,500.

Lincoln died testate in Ada county, Idaho, on August 27, 1955. His then wife and sole beneficiary under his will, Elizabeth Lincoln (appellee herein) became executrix of the estate. Notice to creditors was published for four weeks beginning September 29, 1955, and ending October 20, 1955, as required by the statutes of Idaho.

On December 17, 1955, appellant learned that Lincoln had died on August 27, 1955. Twelve days later, she consulted with Joseph Shane, a California attorney, regarding the filing of a creditor's claim for unpaid alimony. On that date, December 29, 1955, Shane wrote to the clerk of the probate court of Ada county, Idaho. He requested to be advised whether probate proceedings were then pending. Shane asked that, if such proceedings were pending, he be supplied with the name of the attorney for the estate, the title and number of the proceeding, the name of the person to whom a claim should be sent, and a set of the appropriate claim forms.

The probate judge of Ada county replied on January 3, 1956, providing the requested information and furnishing a claim blank. Shane had not asked for, and did not receive from the probate judge, information as to the expiration date for the filing of creditor's claims. That date (four months after first publication of notice to creditors) was January 29, 1956.

On February 6, 1956, Shane wrote to appellee, care of her estate attorney, Karl Paine, transmitting a creditor's claim in the amount of $25,500, based upon asserted nonpayment of alimony. In this letter, Shane advised appellee that appellant was a resident of California, and had received no notice of first publication of notice to creditors. Because of this, Shane advised, he was unable to determine whether the claim filed on behalf of his client was timely. He asked that he be at once informed as to whether the claim was timely, so that, if not, an affidavit could be made and presented to the probate judge and permission obtained for late filing of the claim.

The letter transmitting this claim reached Paine on February 7, 1956, nine days after the expiration date for filing creditor's claims, but prior to settlement and distribution of the estate. On the next day, February 8, 1956, the executrix filed her first and final account and petition for distribution of the estate. In this petition and account, no mention was made of the claim filed by appellant on the previous day. It was represented to the court that all debts of the decedent and his estate had been paid.

On February 9, 1956, Paine replied to Shane's letter of February 6, 1956. He declined to supply the information requested, indicating that the claim was without merit, and that he would do all in his power to defeat it. However, Paine did indicate that the executrix would entertain an offer of compromise based upon that part of the claim which had not been outlawed by the statute of limitations.

Responding to this suggestion, Shane wrote to Paine, under date of February 15, 1956, offering to settle the claim for $7,500. This was the full amount of unpaid alimony alleged to have accrued during the period which would be unaffected by the statute of limitations. Paine replied on February 17, 1956, rejecting this offer.

On the same day, the probate court of Ada county entered an order settling the first and final account and making final distribution of the estate. The residue therein, consisting of $21,921.94, was distributed to appellee as sole legatee. The time and place of the hearing on this account and petition had been duly noticed. Neither appellant nor her attorney received actual notice of the hearing, and did not appear or file any objection.

On March 16, 1956, appellant moved the probate court for an order setting aside the decree of distribution. The ground asserted was that the executrix had falsely represented in her account and petition that all debts had been paid, and had failed to disclose the filing of appellant's claim. Appellee interposed a general demurrer and motions to strike and overrule. While these were pending, and on April 5, 1956, appellant asked in writing for an extension of time for the filing of a creditor's claim.

On April 11, 1956, the probate court sustained the demurrer to appellant's petition of March 16, 1956, and dismissed the petition with prejudice. This action was apparently also intended as a rejection of appellant's request of April 5, 1956. On April 12, 1956, appellant appealed to the appropriate Idaho district court from the decree of February 17, 1956, settling the final account and distributing the estate. No appeal was taken from the order of April 11, 1956, denying appellant's petition to vacate the decree of final distribution.

On May 5, 1956, while this appeal to the Idaho district court was pending, appellant began the instant action in the United States District Court for the District of Idaho, Southern Division. On October 15, 1956, appellee moved for summary judgment in the federal court action. While this motion was pending, the Idaho district court entered judgment against appellant in her appeal from the decree of the probate court. On May 31, 1957, the Idaho Supreme Court affirmed. In re Lincoln's Estate (Gramm v. Lincoln), 79 Idaho 131, 312 P.2d 113.

Thereafter, appellant, on July 23, 1957, filed in the federal court proceeding her motion to name Elizabeth Lincoln, "as an individual heir and legatee," as an additional party defendant, and for leave to file the amended complaint referred to above. In denying these motions and entering summary judgment herein for appellee, the trial court held that the issues had been fully disposed of by the supreme court of Idaho.

Our problem is to determine whether, on these facts, the trial court erred in holding that appellee was entitled to judgment as a matter of law.

We will first consider the cause of action sought to be stated in the original complaint and repeated as the first cause of action in the proposed amended complaint.

This cause of action is, in form, a suit on a rejected claim, brought against the executrix of the estate. The claim is predicated upon the alimony agreement of September 14, 1938, it being alleged that alimony in the amount of $25,500 was unpaid and owing. Judgment in the sum of $25,500 was prayed for in the original complaint, this being reduced to $25,000 in the proposed amended complaint.²

In actuality, however, this cause of action can not be regarded as a suit on a rejected claim, because the claim was not presented to the executrix within the time allowed. Absent such a showing, a cause of action on a rejected claim is not established. Ashbauth v. Davis, 71 Idaho 150, 227 P.2d 954...