Meade County v. Welch

• Decision Date: 08 September 1914
• Docket Number: 3614.
• Citation: 148 N.W. 601,34 S.D. 348
• Parties: MEADE COUNTY v. WELCH et al.
• Court: South Dakota Supreme Court

148 N.W. 601

34 S.D. 348

MEADE COUNTY v. WELCH et al.

No. 3614.

Supreme Court of South Dakota

September 8, 1914

Appeal from Circuit Court, Meade County; Wm. G. Rice, Judge.

Action by Meade County against James K. Welch, as administrator of Nezor La Flamme, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Claude C. Gray, of Sturgis, and A. K. Gardner, of Huron, for appellant.

Schrader & Lewis, of Rapid City, and James McNenny, for Sturgis, for respondents.

GATES J.

On May 24, 1893, one Nezor La Flamme, with his family, resided upon 160 acres of land in Meade county, which was their homestead. On that day he was declared insane and taken to the State Hospital for the Insane, where he remained until his death on January 2, 1908. After his removal to the asylum, his wife continued to occupy the homestead until her death on July 26 1910. During that period she had no property of her own, and was dependent upon said homestead for her support. Nezor La Flamme died intestate and left no other property than the homestead, which was less than $3,000 on value. At the time of his death the children were all more than 21 years of age. On March 1, 1911, defendant Welch was appointed and qualified as administrator of the estate of Nezor La Flamme. In April 1911, the notice to creditors was published. On or about March 18, 1912, the administrator filed a petition for the final distribution of the estate. Without having presented a claim to the administrator, Meade county thereafter brought this action against the administrator and heirs to charge said real estate with its claim for moneys paid to the state of South Dakota for the support of said insane person amounting, without interest, to $2,808.54, and for an injunction to restrain the distribution of said property. Judgment was entered dismissing the action upon its merits. Therefrom, and from an order denying a new trial, Meade county appeals.

We are of the opinion that this case must be disposed of upon the ground that no claim was presented to the administrator, and therefore the questions as to the homestead right, or as to the dependency of the heirs, or the other questions raised, become immaterial.

Section 544, Pol. Code, provides:

"The amount incurred by any county of this state for treatment and maintenance of any insane person in the hospital for the insane shall be a charge against the estate of such insane person. ***"

This section has been interpreted by this court in Minnehaha County v. Boyce, 30 S.D. 226, 138 N.W. 287, to mean that no cause of action thereon arises until the liability created by the statute becomes effective by the death of the insane person. It is therefore argued by counsel for appellant that, inasmuch as no action thereon could have been enforced against the insane person or his property in his lifetime, this is not a "claim" against the estate, within the meaning of section 170, Probate Code, citing Purdin v. Archer, 4 S. D. 54, 54 N.W. 1043, and other decisions of this court. It is true that in Purdin v. Archer, supra, this court quoted with approval certain language from Fallon v. Butler, 21 Cal. 24, 81 Am. Dec. 140, wherein it was said that the word "claim" "has reference to such debts or demands against the decedent as might have been enforced against him in his lifetime by personal action for the recovery of money, and upon which only a money judgment could have been rendered."

The case of Fallon v. Butler, supra, in which that language was used, was one in which a mortgage claim had been presented to the administrator and had been allowed, and it was contended that, because of such allowance, no foreclosure of the mortgage could be had. The California court held that a mortgage lien was not a "claim," within the meaning of the probate act, where no money judgment was sought.

The case of Purdin v. Archer, supra, was one where an administrator sought by replevin to recover property of which the mortgagee of the deceased had taken possession by reason of default in the terms of the mortgage. It was held that the terms of the mortgage were not extinguished by the death of the mortgagor, and that the mortgagee had the right of possession.

In the case of Kelsey v. Welch, 8 S. D. 255, 66 N.W. 390, this court held that, with the exception of a claim for a deficiency, creditors whose claims were secured by mortgage were relieved from the operation of the statute requiring claims to be presented to an administrator.

The case of Fish v. De Laray, 8 S. D. 320, 66 N.W. 465, 59 Am. St. Rep. 764, was an action to foreclose a mechanic's lien. It was held that, so far as the property subject to the lien was concerned, no presentation of the claim to the administrator was necessary.

The case of Kline v. Gingery, 25 S.D. 16, 124 N.W. 958, was an action for rescission of a contract of sale of a stallion upon the ground of fraudulent representations. Kline had given his notes therefor, and before Gingery's death had rescinded the contract and made demand for the return of the notes. The court said:

"As will have been observed in the case at bar, the action was for the purpose of rescinding a contract of sale for the recovery of specific property belonging to the plaintiff, viz., their promissory notes given in purchase of the horse. Clearly it was unnecessary to present such a claim to the executrix for allowance, as the demand was not a debt due from the estate to them, but the estate had specific property of the plaintiffs which defendant refused to deliver. It is quite clear that the statute does not contemplate that, before the plaintiffs could maintain their action for rescission, they should be required to again make a demand of the executrix for rescission; they having already made such demand of the deceased."

It was further held that, it being an action in equity, the court had the incidental power to allow judgment for the keep of the stallion, in spite of the fact that no claim had been presented to the administrator.

While the language quoted in Purdin v. Archer, supra, and adverted to in the other decisions mentioned, in correct as applied to the facts of those cases, yet it can have no application to contracts made by a decedent which were not due prior to his death. General statements in an opinion must be viewed in the light of the facts in each particular case. The situation before the court at the present time is not one which could reasonably have been anticipated when those remarks were approved by this court.

Section 170, Probate Code, reads as follows:

"If a claim arising upon a contract heretofore made, be not presented within the time limited in the notice, it is barred forever, except as follows: If it be not then due, or if it be contingent, it may be presented within one month after it becomes due or absolute; if it be made to appear by the affidavit of the claimant, to the satisfaction of the executor or administrator and the judge of the county court, that the claimant had no notice as provided in this chapter, by reason of being out of the state, it may be presented at any time before a decree of distribution is entered; a claim for a deficiency remaining unpaid after a sale of property of the estate mortgaged or pledged must be presented within one month after such deficiency is ascertained. All claims arising, upon contracts hereafter made, whether the same be due, not due or contingent, must be presented within the time limited in the notice; and any claim not so presented is barred forever; Provided, however, that when it is made to appear by the affidavit of the claimant, as above provided, that he had no notice by reason of being out of the state, it may be presented as therein provided; Provided further, that nothing in this section, nor in this Code contained, shall be construed to prohibit the right or limit the time of foreclosure of mortgages upon real property of decedents, whether heretofore or hereafter executed, but every such mortgage may be foreclosed within the time and in the

mode prescribed by the Code of Civil Procedure, except that no balance of the debt secured by such mortgage remaining unpaid after foreclose shall be a claim against the estate unless such debt was presented as required by this Code."

The italics are ours. The portion of this section down to the last proviso appears first as section 140 of the Probate Code of 1877. An examination of the previous territorial laws fails to reveal any statute in relation to the filing of claims against an estate. That section seems to have been a copy of section 1493 of the California Code of Civil Procedure, as amended in 1874 (Cal. Code Amendments 1873-74 p. 364). That section provides for two classes of claims, viz.: (1) Those arising upon contracts made prior to the taking effect of the Dakota Code of 1877. (2) Those arising upon contracts made after the taking effect of the Code. In 1881, section 140 of the Probate Code of 1877 was amended by chapter 107, Dak. Laws of 1881, by adding thereto the last proviso above set forth in relation to the foreclosure of mortgages. In the Revised Probate Code of...