Gray Realty Co. v. Robinson

• Decision Date: 26 August 1947
• Docket Number: 6987
• Citation: 184 P.2d 237,111 Utah 521
• Court: Utah Supreme Court
• Parties: GRAY REALTY CO. v. ROBINSON

184 P.2d 237

111 Utah 521

GRAY REALTY CO. v. ROBINSON

No. 6987

Supreme Court of Utah

August 26, 1947

Appeal from District Court, Fourth District, Utah County; Joseph E. Nelson, Judge.

Action by Gray Realty Company against Mamie C. Robinson, as administratrix of the estate of J. Robert Robinson, deceased to collect a claim against decedent's estate. Judgment for plaintiff, and defendant appeals.

Judgment reversed.

Zelph S. Calder, of Vernal, for appellant.

I E. Brockbank, of Provo, for respondent.

Latimer Justice. McDonough, C. J. and Pratt and Wolfe, JJ., concur. Wade, Justice (dissenting).

OPINION

Latimer, Justice.

This is an appeal upon the judgment roll. The pertinent facts are these: J. Robert Robinson died on November 28, 1939, and on October 5, 1940, Mamie C. Robinson, the appellant herein, was appointed the administratrix of his estate. On May 12, 1941, she filed an account and petition for summary distribution to which petition the Gray Realty Company, respondent herein, a creditor of decedent, filed objections. The petition for summary distribution and the protest thereto were heard by the probate court on June 7, 1941, at which time the court denied the petition for summary distribution and continued the matter until such time as it could be definitely determined whether a sum due the decedent as an attorney fee would enlarge the assets of the estate to more than $ 1,500, in value. It was thereafter determined that this fee did have that effect whereupon on April 25, 1944, the administratrix caused to be published notice to creditors. Within the time specified in the notice the respondent presented its verified claim to the administratrix. On August 24, 1944, respondent herein was notified that its claim was accepted in part and rejected in part. This suit for the collection of the claim was commenced on September 21, 1944.

Respondent's claim is based on an open account in which the court found the last charge therein was made on March 6, 1939. While the claim was not barred by Sec. 104-2-23, U. C. A., 1943, during the lifetime of the debtor, it will be noted that the action was brought more than one year after the appointment of the administratrix and also more than four years after the last charge entered in the open account. Appellant, in defense of the action, pleaded the claim was barred by Sec. 104-2-38, U. C. A., 1943. The lower court held the portion of the respondent's claim that the administratrix rejected should have been approved, and gave judgment against the estate for the amount of the rejected portion. All statutory references are to the Utah Code Annotated, 1943.

This appeal involves the construction of the statutes of limitation in their relation to the provisions of the probate code. It will be of aid to group some of the applicable provisions.

From the Code of Civil Procedure:

Section 104-2-1.

"Civil actions can be commenced only within the periods prescribed in this chapter, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by statute."

Section 104-2-23.

"Within Four Years. An action upon a contract, obligation or liability not founded upon an instrument in writing * * * provided, that action in all of the foregoing cases may be commenced at any time within four years after the last charge is made or the last payment is received."

Section 104-2-38.

"Effect of Death. If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representatives after the expiration of that time and within one year from his death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced against his representatives after the expiration of that time and within one year after the issue of letters testamentary or of administration." (Italics ours.)

From the Probate Code:

Section 102-9-10.

"No claim must be allowed by the executor or administrator or the judge which is barred by the statute of limitations. * * *"

Section 102-9-12.

"The time during which there shall be a vacancy in the administration must not be included in any limitation herein prescribed. No claim against any estate which has been presented and allowed is affected by the statute of limitations, pending the proceedings for the settlement of the estate."

Section 102-9-4.

"All claims arising upon contract, whether the same are due, not due or contingent, must be presented within the time limited in the notice, and any claim not presented is barred forever; provided, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the court or judge thereof, that the claimant had no notice as provided in this chapter by reason of being out of the state, it may be presented at any time before a decree of distribution is entered; provided further, that nothing in this title contained shall be so construed as to prohibit the foreclosure of liens or mortgages as hereinafter provided."

Section 102-9-6.

"When a claim, accompanied by the affidavit required in this chapter, is presented to the executor or administrator, he must indorse thereon his allowance or rejection, with the date thereof. * * * If the claim is presented to the executor or administrator before the expiration of the time limited for the presentation of claims, the same is presented in time, though acted upon by the executor or administrator and by the judge after the expiration of such time. * * *"

Section 102-9-9.

"When a claim is rejected, either by the executor or administrator or the judge, and notice of rejection has been filed with the clerk, the holder must bring suit in the proper court against the executor or administrator within three months after the filing of such notice, if the claim is then due, or within two months after it becomes due; otherwise the claim shall be forever barred."

While in this particular action suit was not commenced within the times permitted by either or both Sections 104-2-38 and 104-2-23, U. C. A. 1943, in order to avoid confusion as to the applicable statute, it is appropriate to determine their effect on the time within which suit must be instituted and to interpret their provisions in relation to the provisions of the Probate Code.

Section 104-2-23 permits the creditor the right to commence an action at any time within four years after the last charge is made. Section 104-2-38 provides that an action may be commenced after the expiration of that time (in this case four years) and within one year after the issuance of letters of administration. These two sections interpreted together and without regard to the provisions of the Probate Code, which will be considered later in this opinion, grant the maximum time within which an action must be commenced. That is, the creditor may have the benefit of the section which permits the maximum length of time within which he must commence his action. By way of illustration, if the debtor were to die on the last day of the fourth year, the creditor would be entitled to start his suit at any time within one year after letters of administration were issued. Again, if the debtor were to die on the last day of the first year and the administrator appointed as soon as possible, the creditor would have the remaining three years of the four year period in which to commence his action regardless of the length of time the administrator had been appointed. These illustrations are not applicable where the claim is one that must be presented to the administrator, since the time for commencing an action can be shortened by Sections 102-9-4 and 102-9-9.

The first part of Section 104-2-38 and Section 104-2-39 offer reasons in support of this interpretation of legislativeintent. The wording of the first sentence of Section 104-2-38 is as follows:

"If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced by his representatives after the expiration of that time and within one year from his death."

No convincing reason suggests itself as to why the legislature would intend to shorten the time limited for suit against a wrong doer because the injured party has died. The legislative intent is clear that by such sentence it was intended, in cases where an action vested in a decedent survives, to allow his personal representative the period of limitations prescribed for that particular cause of action in which to bring suit; and that it was intended, further, that though the period of limitation expired prior to one year after the death of the decedent, nevertheless the action might be brought within that year. If by this wording the legislature did not intend to shorten the limitation period, then by the wording of the latter part of this section it did not intend to cut down the time when a claim existed against the decedent.

Section 104-2-39 provides:

"If a person against whom a cause of action exists dies without the state, the time which elapses between his death and the expiration of one year after the issuing, within this state, of letters testamentary or letters of administration is not a part of the time limited for the commencement of an action therefor against his executor or administrator."

Applying this section to a cause of action, if the debtor departed from the state prior to the expiration of the limitation period and died before returning, the period of time during which he was absent...