Lowry v. Crandall, Civil 3999

• Decision Date: 07 November 1938
• Docket Number: Civil 3999
• Citation: 83 P.2d 1003,52 Ariz. 501
• Parties: H. D. LOWRY, as Administrator of the Estate of JOHN CARNES, Deceased, and Sometimes Known as HERMAN D. LOWRY, as Administrator of the Estate of JOHN CARNES, Deceased, Appellant, v. S. L. CRANDALL, Appellee
• Court: Arizona Supreme Court

83 P.2d 1003

52 Ariz. 501

H. D. LOWRY, as Administrator of the Estate of JOHN CARNES, Deceased, and Sometimes Known as HERMAN D. LOWRY, as Administrator of the Estate of JOHN CARNES, Deceased, Appellant, v. S. L. CRANDALL, Appellee

Civil No. 3999

Supreme Court of Arizona

November 7, 1938

APPEAL from a judgment of the Superior Court of the County of Graham. Lee N. Stratton, Judge. Judgment reversed and cause remanded with directions.

Mr Stanley A. Jerman and Miss Betsy Carson, for Appellant.

Mr. Guy Anderson, for Appellee.

OPINION

ROSS, J.

This appeal is from a judgment of the Superior Court of Graham county establishing claims against the estate of the decedent that had been rejected by the administrator.

John Carnes died intestate on April 1, 1936, in Graham county where he had his residence. Appellant Herman D. Lowry was appointed administrator of his estate on May 25, 1936, duly qualified entered upon his duties. Thereafter the claims involved were filed with the administrator for allowance and on July 25, 1936, were all disallowed by him except one for thirty dollars, which was neither allowed nor disallowed.

At this time the administrator had not filed any inventory or appraisement of the estate, nor had he given notice to creditors. Later inventory and appraisement was filed and notice to creditors given. The several creditors assigned their disallowed claims to appellee Crandall and on May 15 1937, he re-filed such claims, which were again, in July of 1937, rejected. On August 19, 1937, he brought this action against the administrator to establish the rejected claims and recovered judgment, from which the administrator has appealed.

The appellant contends that claims were barred because claimants failed to bring suit thereon within three months after July 25, 1936, the date of their rejection by the administrator. Appellee resists this contention on the ground that at that time the administrator had not caused an inventory and appraisement of the estate to be made and returned nor given notice to creditors as provided by the statute. This controversy involves the construction of our statutes pertaining to the presentation, allowance and rejection of claims against an estate in probate procedure.

It is made the duty of the personal representative, within three months after appointment, to make and return a true inventory and appraisement of the estate. Section 3958, Rev. Code 1928. The purpose of this requirement is to make a record of the assets of the estate chargeable to the personal representative and for which he is accountable to the creditors, heirs and devisees. Section 3983, Id., provides that the personal representative, immediately after his appointment, must give notice, by publication in a newspaper, requiring all persons having claims against the estate to exhibit them, with necessary vouchers, to the personal representative at the place of his residence or business, to be specified in the notice, within ten months after the first publication when the estate exceeds in value five thousand dollars and four months when it is less. The purpose of this notice is, obviously, for the benefit of the creditors of the estate, that they may file their claims with the personal representative within the time limit. The notice fixes a date beyond which the claims may not be filed, but it does not import that claims of creditors may not be filed with the personal representative before the inventory and appraisement is made or the notice to creditors given, or that the personal representative may not reject or approve them before these things have been done. If creditors of the estate submit their claims to the personal representative before he has complied with the statute as to notice to creditors and the filing of inventory and appraisement, there certainly is no reason why he may not allow them if just and legal, and if he has the power in such circumstances to allow them he could reject them. Section 3987, Id., reads:

"When a claim is presented to the executor or administrator, he shall indorse thereon his allowance or rejection, with the day and date thereof; and if he allows the claim, he shall present it to the judge of the court for his approval, who may hear evidence concerning its validity, and who shall indorse upon it his allowance or rejection and the date thereof. If the executor or administrator or the judge refuse or neglect to indorse such allowance or rejection of ten days after the claim has been presented to him, such refusal or neglect shall be deemed a rejection. If the claim be presented to the executor or administrator before the expiration of the time limited for the presentation of claims, it is presented in time, though acted upon by the executor or administrator and by the judge after such time."

The rule in California, from whence we borrowed our probate law, is stated to be:

"Presentation Before Notice to Creditors. -- While a creditor is not bound to present his claim until after publication of the notice required by the statute, the statute does not require a presentation to be postponed until after the publication. The holder may anticipate such publication, and present his claim prior thereto. It is not the publication of notice which is the prerequisite to the maintenance of an action on a claim, but it is the proper presentation of the claim and its rejection. The only effect of a failure to publish proper notice to creditors is to extend the time for presentation of the claim until due and proper notice shall be given. And if the notice to creditors has not been published, a creditor may present his claim for allowance within the proper time after publication...." 11 Cal. Jur., sec. 425.

Section 3989, Revised Code of 1928, provides that, if a claim is due when rejected, action thereon may be brought within three months after the date of rejection "otherwise the claim shall be forever barred." This bar is of both the right and the remedy. Latham v....