Lewis v. Smith's Estate

• Decision Date: 20 November 1959
• Docket Number: No. 19060,No. 2,19060,2
• Citation: 162 N.E.2d 457,130 Ind.App. 390
• Parties: John LEWIS and Mary Lewis, Appellants, v. ESTATE of Courtland Paul SMITH, Deceased: The First National Bank of Richmond, Indiana, Executor of Last Will and Testament of Courtland Paul Smith, Deceased, Appellee
• Court: Indiana Appellate Court

Page 457

162 N.E.2d 457

130 Ind.App. 390

John LEWIS and Mary Lewis, Appellants, v. ESTATE of Courtland Paul SMITH, Deceased: The First National Bank of Richmond, Indiana, Executor of Last Will and Testament of Courtland Paul Smith Deceased, Appellee.

No. 19060.

Appellate Court of Indiana, Division No. 2.

Nov. 20, 1959.

Dennis & Dennis, Richmond, for appellants.

Harris & Knoll, Richmond, for appellees.

GONAS, Chief Justice.

Appellants filed their claim in the estate of Courtland Paul Smith, deceased, slightly more tan six months after the date of the first published notice to creditors, and there is involved here the question of whether it is therefore barred.

Sec. 7-801(a), Burns' 1953 Replacement, provides that, with certain exceptions not applicable here, all claims against a decedent's estate shall be forever barred unless filed with the court in which such estate is being administered within six months after the date of the first published notice to creditors. As stated by Judge Bierly for this court, in Otolski v. Estate of Nowicki, 1959, Ind.App., 158 N.E.2d 296, 298:

'A statute of this type has been referred to as not being a statute limiting the remedy or, in other words, a statute of limitation, but as a statute constituting a denial of a right of action and imposing a condition precedent to the enforcement of such right of action. See Henry's Probate Law, Vol. 18 Filing of Claims, § 9, page 419, notes 53 and 54; Bahr (Superintendent) v. Zahm, 1941, 219 Ind. 297, 301, 302, 37 N.E.2d 942; State v. Evans, 1927, 143 Wash. 449, 452, 255 P. 1035, 1036, 53 A.L.R. 564, 566, 567. As to the legal effect of a failure to file a claim within the precedent time prescribed by statute, see Oberg v. D. O. McComb & Sons, 1957, 127 Ind.App. 278, 284, point 5, 141 N.E.2d 135.'

The statute prior to the present Probate Code, § 6-311, Burns' 1933, provided that the executor or administrator should give notice by publication of his appointment and the proof of such publication was to be filed by the executor or administrator with the proper clerk within 30 days after the publication was complete. Claims were barred, under § 6-1001, Burns' 1933, if not filed at least 30 days before final settlement of the estate, the time for filing not being based upon the dates of publication.

Although it is well recognized by the courts of our state that the intent of a statutory enactment can only be determined from the language of the act itself, we may look at the report of the probate code study commission to determine the underlying reasons, purposes and policies of the probate code and which may be used as a guide in its construction and application. The commission cited § 6-104, Burns' 1953 Replacement and stated in its report:

'Under the latter section claims could be filed as late as fifteen or more years after publication of notice. This indefinite and uncertain period for filing claims causes confusion and delay in the administration of estates.'

In further commenting on the present statute, the commission stated:

'It is believed that under modern conditions six months is ample time to be afforded as a creditor to file a claim. When the six months have passed and no more claims can be filed, the assets of the estate become fixed and known and partial distribution can be made or the estate can be closed. The provisions of this section diligently applied should relieve the courts and legal profession of much of the public criticism to the effect that it take too long to settle an estate and too much time expires after the death of a decedent before the beneficiaries receive their inheritance.'

While the prior statute provided that the executor or administrator should give notice by publication of his appointment and should file the proof of publication with the proper clerk within 30 days after the publications was complete, the present statute, § 7-107, Burns' 1953 Replacement, provides that upon the issuance of letters the clerk shall cause to be published a notice thereof, in which notice there shall be included notice to creditors to file their claims as required by law. It is further provided that a copy of the notice with proof of publication thereof shall be filed by the clerk as a part of the administration of the estate within 30 days after the publication thereof has been made.

Here the notice was published on May 29, 1956, June 5 and June 12, 1956. Proof of the publication thereof was not filed by the clerk within 30 days after the last publication, but was filed about a week later. Appellants' claim was filed within six months after the filing of the proof of publication, but more than six months after the first published notice to creditors.

It is appellants' argument that the six months' period for filing claims, while it runs from the first publication, does not begin to run until full compliance is had with § 7-107, Burns' 1953 Replacement, including the filing of the proof of publication; that the statute is a unit and all parts thereof are mandatory; that there is no publication such as is required until proof of publication has been duly and properly filed within the time fixed; that the six months' period begins to run only if proof of publication is filed within 30 days, or, if it begins to run at all, it does not do so until such proof is filed.

Each of the parties states, with refreshing frankness, that there are authorities from other states which tend to support the contentions of their opponents. Most of the cases relied upon are discussed in an annotation in 42 A.L.R.2d 1218. It is noted in the cases relied upon,...