Hurd v. Varney

• Decision Date: 02 January 1929
• Citation: 144 A. 266
• Parties: HURD v. VARNEY.
• Court: New Hampshire Supreme Court

144 A. 266

HURD

v. VARNEY.

Supreme Court of New Hampshire. Strafford.

Jan. 2, 1929.

[Copyrighted material omitted.]

Exceptions from Superior Court, Strafford County; Oakes, Judge.

Assumpsit by Nellie Hurd against Edella E. Varney, executrix of the estate of Lewis M. Varney, deceased. Verdict for plaintiff, and defendant brings exceptions. Judgment on the verdict.

Assumpsit, for board and nursing, against the estate of Lewis M. Varney. Trial by jury. Verdict for the plaintiff. Transferred upon the defendant's exceptions to the denial of her motions for a nonsuit and a directed verdict. The ground of exception principally relied on here is "that no proper presentation of claim and demand for payment was made upon the defendant executrix within one year after the granting of administration." There was also an exception to evidence which is stated in the opinion.

The defendant was appointed executrix of the will of Lewis M. Varney upon October 6, 1925. On December 31. 1925, the plaintiff sent to Conrad E. Snow, Esq., the defendant's attorney, a bill as follows: "Farmington, N. H., December 31, 1925, Estate of Lewis M. Varney to Nellie A. Hurd, Dr., to 46 weeks board and nursing, $460.00." On January 15, 1926, Mr. Snow wrote to the plaintiff in part as follows: "You do not state in your bill when this service was rendered. Will you kindly advise?" To this the plaintiff replied under date of January 18, 1926: "Lewis Varney came to my house August 13th, 1919, and left June 29, 1920." In August, 1926, an attorney was employed to represent the plaintiff, who thereafter had a conference with Mr. Snow, and upon January 24, 1927, wrote him in part as follows: "In regard to the claim of Mrs. Nellie Hurd against the estate of Lewis M. Varney, I find that there was a misstatement of the dates as you claimed at our interview, but that the representation as to the duration of Mr. Varney's stay at Mrs. Hurd's home was substantially correct. Mr. Varney left the hospital October 12, 1917, and came to Mrs. Hurd's the same day, and was there all of the time until July 12, 1918, with the exception of perhaps a few days in the latter part of June or the first of July, 1918." The defendant testified that Mr. Snow was her attorney "in settling the estate," and had been "from the beginning." Other facts are stated in the opinion.

Errol S. Hall, of Farmington, and Burt R. Cooper, of Rochester, for plaintiff.

Conrad E. Snow, of Rochester, for defendant.

BRANCH, J. Under our statute no action can be maintained against an executor or administrator unless the demand has been exhibited to him within one year after the original grant of administration. P. L. c. 302, §§ 1, 3. But it is also provided that "a notice sent to the administrator or his agent by registered mail, setting forth the nature and amount of the claim and a demand for payment, shall be deemed a sufficient exhibition and demand." Id., § 2. In accordance with the foregoing provisions, it is a well-established rule "that proof of notice is to be affirmatively established at the trial as part of the plaintiff's case." Watson v. Carvelle, 82 N. H. 453, 454, 136 A. 126. When the demand has been exhibited to the agent of an administrator or executor, lack of registration is immaterial if receipt of bill is admitted or established. Watson v. Carvelle, supra. The statute does not prescribe any method for the appointment of an agent to receive claims against an estate. Therefore the question of authority for that purpose is simply one of agency in fact.

1. The first position of the defendant is that there was no evidence that her attorney had authority to receive claims against the estate. It may be conceded that proof of the fact that an executrix has employed a lawyer to act as her "attorney in settling the estate" would not in and of itself justify a conclusion that he was her agent for the purpose of receiving claims. Specific authority for that purpose is necessary. Strafford Bank v. Church, 69 N. H. 582, 44 A. 105. But there is no reason why an attorney thus employed should not be clothed with the authority of such an agent. The employment being conceded, the extent of the agency thereby created is a question of fact. In the absence of a writing, the conduct of the parties, which has the effect of placing a contemporary construction upon their agreement, furnishes the best evidence of what the agreement was. Atto v. Saunders, 77 N. H. 527. 93 A. 1037.

In the present case both the defendant and her attorney acted as if he were her agent for the purpose of receiving claims. When the plaintiff sent her bill to him he acknowledged its receipt and asked for further information, without suggesting any lack of authority on his part. If he was not in fact authorized to receive claims against the estate the ordinary rules of fair dealing would require that, if he said anything to the plaintiff he should tell her that she had presented her demand to the wrong person. Furthermore, he transmitted notice of the claim to the defendant and undertook, on her behalf, an investigation of its merits. He conferred with the plaintiff's counsel about it, and later on declined to pay it upon the ground that he did not think it was a just claim. Finally, he appeared for the defendant at the trial, but failed to testify that he was not authorized to act as her agent. The defendant testified that she received notice of the claim from the attorney and that she immediately began to look up accounts of the deceased and to Investigate his whereabouts during the time in question. In other words, she treated the claim as though it were properly presented. Her conduct in failing to pay the claim and in going to trial as she did constituted a ratification of the attorney's action in rejecting the claim, and nowhere in the course of her testimony did she deny his authority to receive it. Under these circumstances, a finding that he was in fact her agent for this purpose was proper.

2. The second contention of the defendant is that the statement of the plaintiff's claim as presented did not fulfill the requirements of the statute because the dates given in her letter to the defendant's attorney did not correspond with the dates proved at the trial. It is argued that "the exhibition of an intentionally misdated claim for services is not sufficient exhibition of a claim for an entirely different period."

The above assertion of intentional misstatement finds scant support in the testimony and certainly was not conclusively proved. It might well be found that when her bill was sent to the attorney the plaintiff had no record and was uncertain as to the exact period during which the deceased was a member of her household, and that when asked for dates she did her best to give accurate information. In her testimony she said, "Well, I reckoned back as near as I could. * * * That was as near as I could reckon it. * * * I thought it was right there. * * * I run it over in my mind and I thought he came there at that time." If these statements be accepted as true, the admission, which was cleverly extracted from her on cross-examination, that she "made up" the dates given in her letter, only meant that she gave dates which she believed to be reasonably accurate, but which subsequently proved to be erroneous. It is therefore unnecessary to decide at this time what the effect of an intentionally false statement in regard to dates would have been.

The second branch of the defendant's argument, to the effect that the claim exhibited was not the one upon which a recovery was had, is equally without merit. The plaintiff's bill as originally presented was a substantial compliance with the statute, since it brought the nature and amount of the claim distinctly to the notice of the executrix. Watson v. Carvelle, 82 N. H. 453, 455, 136 A. 126; Ayer v. Chadwick, 66 N. H. 385. 386, 23 A. 426; Judge of Probate v. Runnells, 66 N. H. 271, 21 A. 1020; Little v. Little, 36 N. H. 224; Tebbetts v. Tilton, 31 N. H. 273, 282. This was sufficient to accomplish the purpose of the act which is to bring claims to the knowledge of the administrator, so that he may judge in what manner the estate should be settled, and also that he may make inquiry into them with a view to furnishing himself with the necessary information for their proper adjustment. Ayer v. Chadwick, supra; Judge of Probate v. Lane, 51 N. H. 342, 349; Little v. Little, supra; Tebbetts v. Tilton, supra. It gave the administratrix that "information as a basis for investigation and action" which the statute contemplates. Watson v. Carvelle, supra, 82 N. H. 456, 136 A. 127. Defendant's...