In re Demorest's Estate, 1575

• Decision Date: 15 January 1930
• Docket Number: 1575
• Citation: 41 Wyo. 189,283 P. 1097
• Parties: IN RE DEMOREST'S ESTATE; v. RAFFERTY [*] KOHLER-McLISTER PAINT CO.
• Court: Wyoming Supreme Court

283 P. 1097

41 Wyo. 189

IN RE DEMOREST'S ESTATE;

KOHLER-McLISTER PAINT CO. v. RAFFERTY ^[*]

No. 1575

Supreme Court of Wyoming

January 15, 1930

APPEAL from District Court, Natrona County, BRYANT S. CROMER, Judge.

Application by the Kohler-McLister Paint Co. for the sale of real property owned by the estate of Hannah M. Demorest, deceased opposed by M. W. Rafferty, administrator. From an order directing sale, the administrator appeals.

Affirmed.

For the appellant there was a brief and oral argument by George W Ferguson of Thermopolis, Wyoming.

The claim of respondent was never presented nor allowed and cannot therefore support a petition for the sale of decedent's real estate, to pay it; a claim against an estate can be established by presentation and allowance or by suit if rejected. 6889-6892 C. S. 6893, 6895, and 6897 C. S. Only an interested party may petition for sale of real estate of a decedent. 6931 C. S.; O'Keefe v. Foster Recvr., 5 Wyo. 343; Delfelder v. Bank, 38 Wyo. 481. An executor cannot waive requirements of the statute. Ward v. Magaha, (Wash.) 129 P. 395; Flynn v. Driscoll, (Ida.) 223 P. 524. The foregoing cases are cited in Delfelder v. Bank, supra; 24 C. J. 547, 558, 602-603. See also 34 C. J. 604; III Bancroft, Prob. Pr. 1455. A sale of land to pay a debt barred by limitation is void. Smith v. Wildman, 36 L. R. A. 834; Rhoades v. Cannon, (Ark.) 164 S.W. 752; Abbott v. Johnson, (Ark.) 195 S.W. 676.

For the respondent there was a brief and oral argument by W. J. Wehrli of Casper, Wyoming.

The petition for the sale was made in accordance with Sec. 6922 C. S., and an order was made and published as provided by Secs. 6923 and 6924 C. S. Petitioners claim was properly allowed, and thereafter recognized in the sworn report of the administrator. The cases cited by appellant relate to claims not presented, or objections made by creditors or heirs, or questions of waiver, none of which apply under the facts here. O'Keefe v. Foster, and Delfelder v. Bank, and Ward v. Magaha, were cases in which no claim was presented. The administrator allowed petitioners claim, and is estopped to deny allowance. 24 C. J. 374, for the reason that the administrator has sworn in one of his reports that the petitioners claim was allowed and approved as a valid debit against the estate. The objection to the sale is made by the administrator alone. This is not a suit against an administrator, but a petition to obtain an order of sale under Sec. 6931 C. S.

George W. Ferguson in reply.

A claim against an estate is not validated by being in the possession of an administrator's attorney; presentation to an agent or attorney is insufficient, unless it be shown that such agent or attorney delivered the demand to his principal in due time. 24 C. J. 343, Sec. 972. Petitioner's claim was never filed. Mere silence does not constitute estoppel. 23 C. J. 1178. The listing of claims in an administrator's report, is not an allowance thereof. Matter of Brown, 112 N.Y.S. 599. The claims are verified by the attorney for the claimant, no reason being given why they were not properly verified, and for that reason alone, they are fatally defective. The record shows that the order was properly entered, and that notice of appeal was given within ten days thereafter.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This case is before the court by direct appeal from an order made by the District Court of Natrona County, in probate, directing the sale of certain real property owned by the Estate of Hannah M. Demorest, deceased. The order of sale was made upon written application of the respondent, The Kohler-McLister Paint Company, and over the objections of the appellant, M. W. Rafferty, as Administrator of said estate.

The respondent, in its application for the order of sale, alleged its status as a creditor of the estate whose claim had been allowed, and hence, under Section 6931, Compiled Statutes of Wyoming 1920, insisted it was entitled to have the order in question made. Appellant denies respondent's standing as a creditor of the estate, his contention being substantially that the respondent's claim against the estate was never presented to the administrator for allowance as required by law and was never allowed by him.

Respondent filed a motion to dismiss the case in this court, urging that the record herein does not show that the order appealed from was entered on the journal of the trial court, nor the date of such entry. Previous decisions of this court dismissing cases here where such a condition prevailed are invoked. We have carefully examined this record, however, and are of the opinion that sufficient is disclosed by it to enable us to reach the conclusion that the facts are not as relied upon by the motion, and it must therefore be denied.

Turning to the principal point in dispute between the parties, i. e. whether or not respondent's claim was presented and allowed by the administrator, the question arising under Section 6887, Compiled Statutes of Wyoming 1920, before its subsequent amendment (Laws of 1925, c. 93) and Section 6889, it appears that the trial court, before entering the order complained of, conducted a hearing and received evidence concerning the objections interposed by appellant to the granting of such order. Among the proofs submitted were the original claims of respondent, which seem to have been fastened with clips to the file of the estate in the clerk's office of the District Court of Natrona County, but apparently not marked filed, said claims possessing endorsements on the back thereof showing the county, the name of the estate, the name of the claimant and the blank forms reciting presentation and allowance filled in with the date October 4, 1922--all written out in the handwriting of the attorney for the administrator, George W. Ferguson. The blank spaces appearing under these endorsements for the signature of the administrator were, however, unused.

The record shows also, that letters of administration were granted appellant November 25, 1921, and that a notice to creditors was published, wherein it was stated that "all persons having claims against the said estate are hereby required to exhibit them, with the necessary vouchers for allowance, to the undersigned at the office of Geo. W. Ferguson, rooms 22-23, Townsend Bldg., Casper, Wyoming," within the time required by law.

Testimony was given at the hearing that sometime after November or December, 1926, at various conversations between representatives of respondent and Mr. Ferguson, the latter told them that he (Ferguson) had the claims of The Kohler-McLister Paint Company, and that they were claims against the estate. Mr. Ferguson, called as a witness by respondent, testified that these claims had been in his possession in the past, but that he was unable to recall the date of such possession. He did not deny that the claims had been presented and allowed by the administrator.

Further, there were received in evidence and appear in this record, a report of the administrator M. W. Rafferty, filed in court March 20, 1926, and a petition by him for authority to mortgage real estate of the Hannah M. Demorest Estate, which was filed August 30, 1926. The first of these documents, among other statements, contains the following:

"That there are unpaid claims against the estate of said deceased, which have been approved by this administrator with the will annexed, and which are valid and existing claims against said estate, as follows, to-wit: * * * "The Kohler-McLister Paint Co., Indebtedness of John A. Demorest, guaranteed by deceased, $ 664.00"

This report is signed by M. W. Rafferty, as Administrator, and verified by him in the following language:

"that he is the administrator with the will annexed of the estate of said deceased; that he has read the foregoing report and account, and knows the contents thereof; and that the same and the statements therein contained are true."

The petition for authority to mortgage the real estate incorporates therein a statement to the following effect:

"That the indebtedness against said estate, the expenses of administration and the legacy provided for in the will of said deceased are as follows, to-wit: * * * "The Kohler-McLister Co., Guaranteed for John Demorest, $ 664.00"

This document likewise bears Mr. Rafferty's signature as Administrator, and is also positively verified by him in the form above quoted. The administrator did not, at the hearing, deny the presentation of these claims or their allowance. In fact he did not testify at all.

The court, upon the conclusion of the hearing, found that a sale of the real estate belonging to the estate, was necessary for the payment of petitioner's claim and other debts against the estate and expenses of administration, that the petition should be granted, and the order of sale now under consideration was consequently made.

For the appellant, the cases of O'Keefe v. Foster, 5 Wyo. 343, 40 P. 525; Delfelder v. Farmers' State Bank of Riverton, 38 Wyo. 481, 269 P. 418, 270 P. 1081, and decisions of similar purport, dealing with the necessity of presentation of claims to the executors and administrators of estates, have been cited at length....