Hornbeck v. Richards

Decision Date06 July 1927
Docket Number6132.
Citation257 P. 1025,80 Mont. 27
PartiesHORNBECK et al. v. RICHARDS.
CourtMontana Supreme Court

Appeal from District Court, Silver Bow County; George Bourquin Judge.

Action by Josephine Hornbeck and another against Maibelle B Richards, as administratrix of the estate of Warrington Richards, deceased. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

Frank & Gaines, of Butte, for appellant.

Timothy Nolan, J. F. Sullivan, and Harlow Pease, all of Butte, for respondents.


This action was instituted by the plaintiffs to recover $20,000 damages alleged to have been sustained by them by reason of negligence on the part of defendant's intestate, in driving an automobile resulting in the death of Samuel Hornbeck. The complaint was filed on March 18, 1926, and alleges that the plaintiffs are, respectively, the wife and son of Samuel Hornbeck, deceased, and his only heirs, the wife being the mother of Samuel Hornbeck, Jr., and his guardian ad litem. Upon issue joined by answer and reply, the cause was tried to a jury and resulted in a verdict for the plaintiffs in the sum of $1,750. Judgment was regularly entered upon the verdict, and the appeal is from the judgment.

Defendant has made but one assignment of error; viz., that the court erred in denying the defendant's motion for a directed verdict.

1. At the outset we are confronted by a motion interposed by the plaintiffs to dismiss the appeal upon the grounds that (a) the defendant is not aggrieved by the judgment; (b) the estate of defendant's intestate is wholly insolvent, in consequence whereof the questions presented are moot; and (c) the defendant is estopped to take this appeal by reason of the files and records in the matter of the administration of the estate of the intestate.

The statute gives the aggrieved party a right of appeal (section 9730, R. C. 1921) from a final judgment (Id., § 9731), and from an examination of the record in this case we are of opinion that the defendant is wholly within her rights, even though the estate of Richards, yet unsettled, may appear from the records of the probate side of the court to be insolvent. In her representative capacity she is the defendant in the action, and judgment has been entered against her in such relationship, the amount of which she is ordered to pay "in the due course of administration of said estate." Such judgment against the administratrix establishes a claim against the estate to be paid in due course of administration (In re Smith's Estate, 60 Mont. 276, 199 P. 696), and, since it must be paid from assets available, will greatly diminish, if not entirely destroy, the value of the estate. Whether the estate is insolvent is of no concern respecting the merits of this action. The records of the probate court are not properly before us, and have no bearing on the merits of this appeal. The administratrix is an heir at law of the intestate, and not only are her personal rights as such affected by the judgment, but in her representative capacity her duty is to conserve the assets of the estate for the benefit of creditors and others interested. Surely, it cannot reasonably be urged that she is not a party aggrieved by the judgment. Under the statute respecting the right of appeal, we are of opinion that the proper general rule to be applied is that any party to an action or proceeding having an interest recognized by law in the subject-matter, which interest is injuriously affected by the judgment, is a party aggrieved within its meaning. 2 Cal. Jur. p. 216. In short, a party to the action whose rights are prejudiced by the judgment. People v. Pfeiffer, 59 Cal. 89.

2. In her answer, the defendant pleads the statute of nonclaim in bar of the action, alleging:

"That subsequent to her appointment as administratrix, in conformity with an order of said court duly given and made under date of February 17, 1925, directing the giving of notice to creditors of and persons holding claims against said Warrington Richards, deceased, to present them to her as such administratrix, she did cause to be published once a week for four successive weeks in the Montana American, a newspaper of designated publication, such a notice to creditors and persons having claims against said estate; and thereafter under date of March 25, 1925, an order of said court was duly given and made to the effect that due and legal notice had been given to creditors of and persons having claims against said Warrington Richards, deceased. That the notice published as aforesaid required the presentation of claims within ten months from the date of its first publication. That thereafter and on or about October 14, 1925, there was presented to defendant, as administratrix of the estate of Warrington Richards, deceased, a claim by and on behalf of plaintiffs herein founded upon the death of Samuel Hornbeck while riding as a guest of Warrington Richards in his Pierce-Arrow automobile on January 23, 1925, and being a claim arising out of the same facts and circumstances as are made the basis of plaintiffs' complaint herein: That after the presentation of said claim as aforesaid, and under date of October 15, 1925, this defendant, by writing indorsed upon said claim, rejected the same and thereafter and under date of October 19, 1925, filed said claim so presented, together with her indorsement of rejection thereon, in the office of the clerk of the district court in the matter of the estate of Warrington Richards, deceased. That no suit or action upon or to enforce said claim or to enforce the alleged liability of Warrington Richards and his estate growing out of the facts set forth in said claim was commenced either against this administratrix or any other representative of the estate of Warrington Richards, deceased, at any time or at all prior to March 18, 1926. And defendant alleges that by and because of the facts aforesaid the cause of action, if any, of plaintiffs herein is barred, and particularly that said claimed cause of action is barred by the provisions of section 10178, Revised Codes of Montana 1921, as amended by chapted 11 of the Nineteenth Session Laws of the Montana Legislative Assembly 1925, at page 12 thereof."

And the plaintiffs at the trial admitted the facts to be as alleged in defendant's answer, other than that the plaintiffs' cause of action was barred.

The sections of our Revised Codes of 1921, proper to be considered in determining this question, are in part as follows:

Section 10170. "Every executor or administrator must, immediately after his appointment, cause to be published * * * notice to the creditors of the decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or administrator [etc.]."

Section 10173 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, and any claim not so presented is barred forever."

Section 10174 provides that:

"Every claim which is due, when presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowlegde of the affiant. If the claim be not due when presented, or be contingent, the particulars of such claim must be stated [etc.]."

Section 10178, as amended by chapter 11 of the Laws of 1925, page 12, reads:

"When a claim is rejected either by the executor or administrator, or the judge, the holder must bring suit in the proper court against the executor or administrator within three months after the date such claim is filed, with indorsement thereon showing the rejection thereof, in whole or in part, in the office of the clerk of court in which the proceedings are pending, if it be then due, or within two months after it becomes due, otherwise the claim shall be forever barred."

Section 10179 provides:

"No claim must be allowed by the executor or administrator, or by the judge, which is barred by the statute of limitations. When a claim is presented to a judge for his allowance, he may, in his discretion, examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim."

Section 10180 provides:

"No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator, except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto where all recourse against other property of the estate is expressly waived in the complaint."

These statutes recognize three classes of claims which must be presented to the executor or administrator (1) claims due (2) claims not due; and (3) contingent claims. But all classes must arise on contract. While a claim against an estate predicated on contract with the deceased must be presented to the executor or administrator as a condition precedent to suit (section 10180, R. C. 1921; Ellissen v. Halleck, 6 Cal. 393; Morrow v. Barker, 119 Cal. 65, 51 P. 12; Humbolt Society v. Burnham, 111 Cal. 345, 43 P. 971; Morse v. Steele, 149 Cal. 303, 86 P. 693; Smith v. Smith [C. C. A.] 224 F. 1), it is not necessary to so present a claim for damages, because of wrongful acts of the decedent in his lifetime, as a condition precedent to the institution of an action to recover same ( Hardin v. Sin Claire, 115 Cal. 460, 47 P. 363; Leverone v. Weakley, 155 Cal. 395, 101 P. 304). Such statutes are special in character; they...

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1 cases
  • Kenney v. Hickey
    • United States
    • Nevada Supreme Court
    • August 27, 1940
    ... ... by the adjudication, or where the right of property is ... adversely affected or divested thereby. Hornbeck et al ... v. Richards, 80 Mont. 27, 257 P. 1025; Appeal of ... Cummings, 126 Me. 111, 136 A. 662; Williams v. Rice, ... Sup., 201 N.Y.S. 43; ... ...

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