Lobrovich v. Georgison

• Decision Date: 24 September 1956
• Citation: 144 Cal.App.2d 567,301 P.2d 460
• Court: California Court of Appeals Court of Appeals
• Parties: Minnie C. LOBROVICH, Plaintiff and Appellant, v. Helen GEORGISON, as Executrix of the Estate of George C. Georgison, also known as George Mihaljevic, also known as George Wellington, also known as C. Wellington, Deceased, Defendant and Respondent. Civ. 16889.

Page 460

301 P.2d 460

144 Cal.App.2d 567

Minnie C. LOBROVICH, Plaintiff and Appellant, v. Helen GEORGISON, as Executrix of the Estate of George C. Georgison, also known as George Mihaljevic, also known as George Wellington, also known as C. Wellington, Deceased, Defendant and Respondent.

Civ. 16889.

District Court of Appeal, First District, Division 2, California.

Sept. 24, 1956.

Rehearing Denied Oct. 24, 1956.

Hearing Denied Nov. 21, 1956.

Forrest E. Macomber, Gordon J. Aulik, Stockton, for appellant.

Crist, Peters & Donegan, Palo Alto, for respondent.

PER CURIAM.

Minnie C. Lobrovich, formerly Minnie Georgison, appeals from a judgment holding that her action against the executrix of the estate of her deceased first husband George C. Georgison to establish her claim in said estate was barred by the provision of section 714 of the Probate Coce, which requires such suit to be brought within three months after the date of written notice of the rejection of the claim. The facts are undisputed.

The claim was for allegedly unpaid alimony accrued before plaintiff's remarriage in February 1925, and child support accrued before her son reached his majority in March 1944, both under an interlocutory decree of divorce obtained by plaintiff in Alameda Superior Court in 1924, and the final decree obtained in 1925. The claim was filed with the County Clerk of Santa Clara County, where the will of the deceased was in probate, on December 14, 1952, and a copy was mailed to the attorneys of the executrix, the second wife of deceased. The executrix on December 15th instructed her attorneys to 'deny' said claim. On December 17th the Alameda Superior Court on plaintiff's motion ordered that execution issue on the divorce judgment and leave was granted to file creditor's claim in the estate of George C. Georgison. On December 19, 1952, the attorneys for the executrix mailed a letter to the attorneys of plaintiff, which letter the court below considered a notice of rejection of claim and which will be stated hereafter in detail. Enclosed was a copy of the order of December 17th and copy of a notice of appeal therefrom. This letter was received by plaintiff's attorney on December 22nd. On this same date the appeal from the order of December 17th was filed. On December 23rd a more detailed order to the same effect as the order of December 17th was filed in the Alameda Superior Court. On February 6, 1953 a supplement to plaintiff's claim reciting the order granting leave was filed with the Santa Clara County Clerk. After the letter of December 19th, there were settling negotiations between the attorneys of the parties which ceased after letters exchanged on February 12 and 13, 1953. The present action was filed April 6, 1953, more than three months after receipt of the letter of December 19, 1952. Trial in said action was continued until after the appeal of the order granting leave had been decided in favor of plaintiff-petitioner, Georgison v. Georgison, 43 Cal.2d 550, 275 P.2d 3, and the remittitur had come down on November 26, 1954.

Appellant contends that the three month period of Probate Code Section 714 did not begin to run because her claim had not been rejected in the manner provided for by Probate Code Section 710, and because the letter of December 19, 1952 was not a notice of rejection as contemplated by Section 714; that the running of the statute was tolled pending the appeal from the order of the Alameda Superior Court; that respondent executrix was estopped from relying on the statute because of continuing settlement negotiations and that it was error to strike testimony of plaintiff's attorney that he attached no significance to the letter of December 19th as a notice of rejection and deemed it solely a letter inviting negotiations. We have concluded that none of these contentions can be sustained.

It is conceded that the executrix did not file with the clerk her rejection in writing as provided for in section 710. However, section 714 does not contain a term of three months from the date of the filing of such rejection in writing but from the date of written notice to the claimant for which section 714 itself provides. The effect of failure to file a rejection in writing with the Clerk in accordance with section 710 is not contained in the probate code or decided in any case known to us. With respect to section 711, which regulates the alternative statutory method, the presentation of the claim to the representative himself, and which provides for indorsement of the rejection with the date thereof on such presented claim, it has been said that such indorsement of rejection is not essential and that any act in writing indicating an intention to reject would have the same effect. See Faias v. Superior Court, 133 Cal.App. 525, 528, 24 P.2d 567. Accordingly, it was held in In re Estate of Wood, 117 Cal.App.2d 132, 254 P.2d 940, that a motion of executors to strike a creditor's claim was a rejection of said claim to be allowed by a suit under section 714, and in San Francisco Bank v. St. Clair, 47 Cal.App.2d 194, 117 P.2d 703, 704, that a statement that a contingent liability claimed 'is now eliminated and is null and void' contained in the first and final account and petition for distribution of the executrix, which statement did not escape the notice of the creditor, was a notice in writing of rejection which started the running of the three months statute of section 714, although otherwise the executrix had taken no action on the claim. We hold that the same principle must be applied to the filing with the Clerk of a rejection in writing under section 710. This form of rejection has no greater intrinsic importance than the indorsement of the rejection on a claim presented to the representative. The claim with rejection need not even be presented by the clerk to the judge in contradistinction to a claim allowed by the representative, § 710, supra.

The material text of the letter of December 19, 1952, the sufficiency of which as a notice of rejection is in dispute, reads as follows:

'Re: Georgison v. Georgison No. 74985

'Gentlemen:

'Enclosed is the order and the appeal therefrom in the above entitled matter. Also, I am in a position now to apprise you of what is really at diminished by that claim. However, will be notified, if you have not already received copy, the inventory in this estate totals $6,525.00. There is also a claim in this estate of $50,000.00 arising out an automobile accident in which the deceased husband was involved prior to his death. There is some insurance on this matter and it may be that the estate will not be diminished by that claim. Hoever, that remains to be seen.

'As your claim has been rejected, no doubt you are planning suit against the estate and since the defenses are so strong and the feeling equally strong, I can honestly predict that if we do not prevail in successfully resisting your suit, an appeal from it will be inevitable. With an estate this size, obviously it is a losing proposition for Mrs. Lobrovich.

'I have in mind a realistic approach to this thing and I think you will agree the sensible thing to do is to get Mrs. Lobrovich to prune her demand down to something that makes sense for this widow, and I will get out the arithmetic and show her how she would save money by settling. However, you know I'm not going to get anywhere if her demand is substantial enough to give it to Lobrovich rather than lose it in fees and costs in resisting Mrs. Lobrovich. In either event, the result would be the same to Mrs. Georgison and with her present feeling, I know she would prefer it not going to Mrs. Lobrovich.

'I suggest you get in touch with your client and let me know your intentions because it seems a little ridiculous with an estate of this size to exhaust it with attorney's fees.'

This letter does not only...