Lewis v. Neblett

• Decision Date: 24 May 1957
• Citation: 48 Cal.2d 564,311 P.2d 489
• Court: California Supreme Court
• Parties: Ida LEWIS, Plaintiff and Respondent, v. Wm. H. NEBLETT, as Administrator of the Estate of Eddie Will Sellers, Sr., Deceased (substituted as defendant in place and stead of Harry Aides, the former Administrator of said estate), Defendant and Appellant. L. A. 23998.

Page 489

311 P.2d 489

48 Cal.2d 564

Ida LEWIS, Plaintiff and Respondent, v. Wm. H. NEBLETT, as Administrator of the Estate of Eddie Will Sellers, Sr., Deceased (substituted as defendant in place and stead of Harry Aides, the former Administrator of said estate), Defendant and Appellant.

L. A. 23998.

Supreme Court of California, In Bank.

May 24, 1957.

Harry W. Dudley, Los Angeles, for appellant.

Leonard D. Nasatir, Los Angeles, for respondent.

TRAYNOR, Justice.

Plaintiff brought this action against the estate of Eddie W. Sellers to establish a trust in certain real property standing in Sellers' name at the time of his death. The trial court denied a motion to dismiss the action for plaintiff's failure to bring it to trial within five years and, after trial without a jury, made findings of fact and conclusions of law favorable to plaintiff and entered judgment accordingly. Defendant appeals.

Defendant contends that the action should have been dismissed for plaintiff's failure to bring it to trial within the five-year period prescribed by section 583 of the Code of Civil Procedure. A chronology of the events bearing upon the applicability of section 583 follows:

October 19, 1949. Plaintiff filed her complaint naming as defendant Bessie Sellers as administratrix of the estate of Eddie W. Sellers.

March 9, 1954. On plaintiff's motion, trial of the case was postponed to July 7, 1954.

June 4, 1954. Bessie Sellers was removed as administratrix by court order.

July 7, 1954. On defendant's motion, trial of the case was postponed to October 28, 1954.

August 4, 1954. Harry Aides was appointed administrator.

October 13, 1954. Aides was substituted for Bessie Sellers as defendant in the action.

October 14, 1954. Plaintiff's attorney and the attorney for Aides entered into a written stipulation providing that the case 'be continued for trial from the 28th day of October, 1954 * * * to such time after the 1st of January, 1955, as may be set by the Presiding Judge,' reciting as the reason for the stipulation that 'there is pending the possibility of settlement of said above matter and that the Superior Court will be asked to approve a Petition for Settlement of same, * * *'

October 19, 1954. The five-year period within which an action must be brought to trial under section 583 of the Code of Civil Procedure expired.

October 21, 1954. Bessie Sellers filed a complaint in intervention alleging that she and the decedent's minor son were the real parties in interest, denying the charging allegations of plaintiff's complaint, and praying that plaintiff take nothing by her action.

October 28, 1954. The stipulation entered into on October 14 was filed, and on defendant's motion trial was postponed to February 16, 1955.

February 15, 1955. Plaintiff's attorney and the attorney for Aides entered into and filed a written stipulation providing that the case 'be continued to a date subsequent to the hearing on the petition for authority to compromise claims against the estate now pending. * * *'

February 16, 1955. The court ordered the case continued to April 4, 1955.

April 4, 1955. Plaintiff's attorney and the attorney for Aides entered into and filed a written stipulation providing that the case 'be continued until May 23, 1955, or as soon thereafter as may be convenient to the court,' and the court ordered the case continued to May 3, 1955.

April 15, 1955. The intervenor filed notice of a motion to dismiss for failure to bring the action to trial within five years.

April 28, 1955. The motion to dismiss was denied.

April 29, 1955. Harry Aides resigned as administrator with court approval. William Neblett, attorney for the intervenor, was appointed administrator and substituted as defendant in the action.

May 3, 1955. On plaintiff's motion, trial of the case was postponed to May 26, 1955.

May 27, 1955. Trial commenced, and the court granted the intervenor's motion that her complaint be dismissed as moot.

Section 583 of the Code of Civil Procedure provides: 'Any action heretofore or hereafter commenced shall be dismissed * * * on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended * * *.'

Relying upon the stipulations entered into by her attorney and the attorney for Harry Aides, who was then administrator and defendant, plaintiff contends that 'the parties have filed a stipulation in writing that the time may be extended,' and that the trial court correctly denied the motion to dismiss.

Defendant contends that the five-year time limit prescribed by section 583 of the Code of Civil Procedure is a statute of limitations within the meaning of section 708 of the Probate Code, which provides: 'No claim which is barred by the statute of limitations shall be allowed or approved by the executor or administrator,' that an administrator has no power to waive the defense provided by a statute of limitations in an action against the estate (Reay v. Heazelton, 128 Cal. 335, 338-339, 60 P. 977; Fontana Land Co. v. Laughlin, 199 Cal. 625, 636-637, 250 P. 669, 48 A.L.R. 1308), and that Aides therefore had no power to enter into a stipulation extending the time limit prescribed by section 583.

It is unnecessary to determine whether or not the five-year period prescribed by section 583 is a statute of limitations, for even if it is, it does not follow that an administrator cannot enter into a stipulation extending the time for trial when the statutory period has not expired or when, because of a prior valid stipulation by the administrator, section 583 constitutes no bar to further prosecution of the action. The reason an administrator is not empowered to waive the defense provided by a statute of limitations in an action against the estate is that he acts as a trustee for creditors of the estate and for the heirs and is not at liberty to deplete the assets of the estate by failing to assert a valid, existing defense. Fontana Land Co. v. Laughlin, supra, 199 Cal. at pages 636-637, 250 P. 669. When it is questionable whether an action against the estate is barred by the statute of limitations, the administrator may enter into an agreement compromising the action, for it may be advantageous to the estate to do so. In re Estate of Lucas, 23 Cal.2d 454, 466-467, 144 P.2d 340. Since it may also be to the advantage of the estate, an administrator, before the period prescribed by section 583 has expired, may enter into a stipulation extending the time within which an action against the estate must be brought to trial. See Union Savings Bank v. Barrett, 132 Cal. 453, 455, 64 P. 713, 1071.

The foregoing chronology discloses that Aides, as administrator, entered into the first stipulation extending the time for trial five days before the five-year period expired. The reason for the stipulation was that there was pending the possibility of a settlement, which might well have been advantageous to the estate. It appears, therefore, that Aides, as administrator, was authorized to enter into the stipulation of October 14. It is immaterial to the question on his authority...