Lincoln's Estate, In re

• Decision Date: 31 May 1957
• Docket Number: No. 8517,8517
• Citation: 79 Idaho 131,312 P.2d 113
• Parties: Matter of the ESTATE of Henry LINCOLN, Deceased. Gladys E. Lincoln GRAMM, Petitioner-Appellant, v. Elizabeth LINCOLN, Executrix of the Will of Henry Lincoln, deceased, Respondent.
• Court: Idaho Supreme Court

Page 113

312 P.2d 113

79 Idaho 131

Matter of the ESTATE of Henry LINCOLN, DeceasedGladys E. Lincoln GRAMM, Petitioner-Appellant, v.Elizabeth LINCOLN, Executrix of the Will of Henry Lincoln, deceased, Respondent.

No. 8517.

Supreme Court of Idaho.

May 31, 1957.

Frank E. Chalfant, Boise, Joseph Shane, Los Angeles, Cal., for appellant.

Karl Paine, Boise, for respondent.

KEETON, Chief Justice.

Henry Lincoln died testate August 27, 1955, leaving his widow, Elizabeth Lincoln, respondent, executrix and sole devisee and legatee.His will was admitted to probate September 23, 1955.Time for presentation of claims against the estate expired January 29, 1956.Decree was entered that due and legal notice to creditors had been given.The executrix filed her final account and petition for distribution of the estate.

On or about February 9, 1956, subsequent to the expiration of the time for presentation of claims, but before the decree of distribution was entered, appellant, a former wife of deceased, filed a claim with Karl Paine of Boise, attorney for the estate, he being the person designated in the notice to creditors with whom claims should be filed.This claim was based on an agreement entered into between appellant and deceased, dated September 14, 1938, in which deceased agreed to pay said appellant the sum of $125 a month 'during the rest of his natural life, payable on the 15th day of each any every month, beginning September 15, 1938.'The creditor's claim and the testimony show that none of the payments was ever made.

After the time for presentation of claims had expired, but before the decree of distribution had been entered Karl Paine, attorney for the estate, wrote a letter to appellant's attorney Shane, acknowledged receipt of the claim, in substance rejected it, but did not furnish information asked for relative to securing an extension of time in which to file the claim.

The attorney representing appellant was advised, in response to an inquiry, by the probate judge by letter dated January 3, 1956, the name of the executrix and where claims should be filed, and a claim blank furnished.

Appellant filed no objections in the probate court to the first and final account or to the petition for distribution.Decree of final distribution and settlement of final account was made and recorded.Thereafter, on March 16, 1956, appellant filed a petition with the probate court to set aside the decree of distribution on the ground that her claim had never been presented to or passed on by the probate court, nor rejected by the executrix, and no notice of rejection had ever been given, and that it was falsely represented in the final account and petition that all the debts had been paid and discharged and that the estate was in a condition to be closed.

To this petition the executrix demurred on the ground that the facts alleged were insufficient to grant the relief prayed for and also moved to strike the petition on the ground that at the time the claim was presented the time for presenting claims had expired and no extension of time had been asked for or granted, and that no exceptions or objections were ever taken to the final account and petition for distribution as filed.Thereafter on April 5, 1956, appellant, in writing, asked for an extension of time for filing a creditor's claim on the ground that she was a nonresident of the state and had no actual notice, directly or indirectly, of the publication of notice to creditors.In her affidavit appellant states that she learned of the final burial services of deceased about December 17th and on December 29th contacted Joseph Shane, an attorney of Los Angeles, relative to the presentation of a creditor's claim against the deceased's estate.

On April 11, 1956, the probate judge sustained the demurrer to the petition and granted the motion to strike the same, and dismissed the matter with prejudice.On April 12, 1956, claimant filed notice of appeal to the district court'from the Decree of Settlement of Final Account * * * of the last will and testament of Henry Lincoln, deceased' and 'from the Decree Directing the Distribution made and entered the 17th day of February, 1956'.No appeal was taken from the order denying the petition to vacate the decree of final distribution.

On appeal the matter was heard by the Honorable M. Oliver Koelsch, district judge, who found that the claim was not presented to the executrix within the time limited by the notice to creditors, that no exceptions or objections, either oral or in writing, were taken in the probate court to the first and final account or to the petition for final distribution; that the only appearance by appellant in the probate court was after the decree of final distribution had been made and entered; that the proceeding in the probate court in the matter was free of error, and was regular, legal and valid in all respect and affirmed the decree of the probate judge.Appeal was taken from the judgment to this Court.

Appellant assigns as error the alleged failure of the district judge to make finding of fact and conclusions of law; in rejecting the offer in evidence of appellant's claim; that the probate judge did not require high fiduciary standards of duty applicable to representatives administering estates of deceased persons; that the claim was not rejected in writing by the executrix in the manner provided by Sec. 15-607, I.C.; that the decree of distribution did not mention or refer to appellant's claim; that the decree of distribution should not have been entered and the final account approved without a report having been made by the executrix of appellant's claim; that the executrix was guilty of bad faith in that the claim should have been reported to...