Merritt v. Rollins

• Court: Arkansas Supreme Court
• Writing for the Court: McFADDIN; HOLT; HOLT
• Citation: Merritt v. Rollins, 329 S.W.2d 544, 231 Ark. 384 (Ark. 1959)
• Decision Date: 14 December 1959
• Docket Number: No. 5-1922,5-1922
• Parties: Tommie MERRITT, Appellant, v. Mrs. Linnie ROLLINS, Executrix, Appellee.

Page 544

329 S.W.2d 544

231 Ark. 384

Tommie MERRITT, Appellant, v. Mrs. Linnie ROLLINS, Executrix, Appellee.

No. 5-1922.

Supreme Court of Arkansas.

Dec. 14, 1959.

Chas. A. Walls, Jr., Lonoke, for appellant.

House, Holmes, Butler & Jewell, Little Rock, for appellee.

McFADDIN, Justice.

The issue on this appeal is whether the claim of appellant was presented in the manner required by the Probate Law (§ 62-2604 Ark.Stats.).

L. C. Merritt died testate, a resident of Pulaski County, Arkansas; and the appellee, Mrs. Linnie Rollins, was duly appointed executrix of his estate. Within the time provided by law (on October 10, 1957), the appellant, Mrs. Tommie Merritt, went to the office of the executrix and presented her with a document reading:

'In the Probate Court of Pulaski County, Arkansas

'In the Matter of the Estate of Lawrence C. Merritt, deceased

No. 32564

'During the time that the decedent and Russell and Tommy Merritt were in business together in California the earning of the Claimant and her deceased husband was $80,000.00, which amount was retained by the decedent for safe keeping, and $19,000.00 which amount is now due to the claimant as her share of the operation of the business in Mississippi.

'That the decedent had in his possession $80,000.00 of claimants moneys and the balance of $19,000.00 is due for settlement of accounts from the operation of businesses in Mississippi making a total due of $99,000.00.

'Affidavit to claim against estate.

'I, Tommie Merritt, do solemnly swear that the attached claim against the estate of Lawrence C. Merritt, deceased, is correct, that nothing has been paid or delivered toward the satisfaction thereof except what is credited thereon, that there are no offsets to the same, to the knowledge of this affiant, except as therein stated, and that the sum of Ninety Nine Thousand and no/100 Dollars ($99,000.00) is now justly due (or will or may become due as stated therein). I further state that if this claim is based upon a written instrument, the copy thereof, including all endorsements, which is attached hereto, is true and complete.

'________

'State of Arkansas County of Pulaski

'Subscribed and sworn to before me, this ___ day of _____, $19__.

'(Seal)

________

'Official Title.'

It will be observed that the paper presented to the executrix was unsigned and that the affidavit was likewise unaccomplished. When she presented the paper to Mrs. Rollins, Mrs. Merritt said: 'I brought you a present. * * * It is some money Mr. Merritt owed Russell'. Mrs. Rollins said: 'This is ridiculous'. Mrs. Merritt said: 'What shall I do with this?'; and Mrs. Rollins replied: 'Take it and file it at the Clerk's office'. Mrs. Merritt left the unsigned document, as copied above, with Mrs. Rollins; and went immediately to the Pulaski Probate Clerk's office and filed with him another document identical to the one above copied except that the filed paper was signed by Mrs. Merritt and the affidavit was duly completed by the Clerk. Both the document left with Mrs. Rollins and the one filed with the Clerk are before us, and one is a carbon copy of the other, except that the one left with the Clerk was signed by Mrs. Merritt and the affidavit completed by the Clerk and bears the notation: 'Filed October 10, 1957. R. S. Peters, County and Probate Clerk, Pulaski County, Arkansas'. The claim shows that it was filed in the Estate of L. C. Merritt.

On November 3, 1958 the executrix, Mrs. Rollins, filed her disapproval and disallowance of the Merritt claim; on January 22, 1959 there was a hearing in the Probate Court on the disallowance of the claim; and the Probate Court, on appellee's motion, entered judgment dismissing the claim. ¹ This appeal resulted; and the only question before us is the correctness of the Court's order holding that the claim was not properly presented. We are not now concerned with the merits of the claim.

We reach the conclusion that the requirements of the law, for the presentation of the claim, were substantially complied with in this case. Our present statute on the presentation and filing of claims is § 113 of Act No. 140 of 1949, and may be found in § 62- 2604 Ark.Stats. ² A claimant may file his properly verified claim with the personal representative; or, in the alternative, the claimant may file the properly verified claim with the Court, and then the duty is on the claimant to see that the personal representative is properly notified of the claim. ³ In the case at bar the claimant notified the personal representative of the claim by furnishing an unsigned copy; and then, at the direction of the personal representative, the claimant filed with the Court--the same day--a full and correct claim, duly signed and with the affidavit completed.

It would be putting form above substance to hold that a personal delivery of a copy of the claim to the personal representative was not a sufficient compliance with the requirement for sending of a notice by registered mail. It would likewise be putting form above substance to hold that the notice to the personal representative had to be give after the claim had been filed with the Court, when both events took place on the same day. That the Arkansas decisions have not stood for technicalities in this matter of the form and presentation of claims, is shown by the following cases: In Eddy v. Loyd, 90 Ark. 340, 119 S.W. 264, 265, the required affidavit to the claim did not use the exact statutory words, but rather used words of a similar import. This Court held that the statute had been substantially complied with, and Chief Justice McCulloch used these words: 'The affidavit substantially conforms to the requirement of the statute'. Likewise, in Wilkerson v. Eads, 97 Ark. 296, 133 S.W. 1039, 1040, the affidavit did not use the correct statutory words; but this Court held that the words used substantially complied with the statute. Chief Justice McCulloch again used the words, 'This is a substantial compliance with the statute'. In Davenport v. Davenport, 110 Ark. 222, 161 S.W. 189, 190, the claimant merely attached a verbatim copy of the note to the affidavit instead of the original note, as the law then required; but this Court held that the verbatim copy, along with the affidavit, was substantial compliance with the law. Judge Frank G. Smith, writing the opinion of this Court, used these words:

'Here the proper affidavit was made and was attached to a verbatim copy of the note sued on, and the jurisdictional requirement was complied with. If it be said that a literal reading of the statute provides that the affidavit be physically attached to the note itself, which we do not decide, there has been a substantial compliance with it. This question was raised and decided in the case of Wilkerson v. Eads, 97 Ark. 296, 133 S.W. 1039, where, in a suit upon a note instituted in the chancery court, the only affidavit consisted in the verification of the complaint; but its language was such that the court held it to be a substantial compliance with section 114 of Kirby's Digest, although it was there expressly stated that the statute applied to actions according to the forms of the common law against estates of deceased persons, as well as to presentations in the probate court of claims against such estates. The law having been at least substantially complied with, the court below should not have dismissed the proceeding, and for its action in so doing the judgment is reversed, and the court directed to hear the demand upon its merits.'

The rule generally is that substantial compliance is sufficient in this matter of the presentation of claims. The point is discussed in 34 C.J.S. Executors and Administrators § 415 p. 192; and also in 24 C.J. p. 347, 'Executors and Administrators' § 982. In each volume the holdings are summarized in these words: '* * * a substantial compliance with the provisions of such statutes may be sufficient * * *'; and in the two volumes a score of cases from other jurisdictions are cited to sustain the text. The purpose of the presentation of a claim to the administrator or the court is well stated in 21 Am.Jur. p. 577, 'Executors and Administrators' § 342:

'Presentation is, in general, required for the purpose of protecting the estate of deceased persons, by informing the executor or administrator of the claims against it and thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed. It has also been said that the primary object of the provisions requiring presentation is to apprise the administrator and the court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full, or by pro rata portion in the due course of administration.'

In the case at bar, the claim had the correct form of affidavit, just as prescribed by Official Form No. 18 of the Probate Code Forms, and the affidavit was duly completed ⁴ and the claim duly filed with the Court. The claim as filed with the Probate Court was complete in every respect. No registered letter was sent by the claimant to the personal representative because the personal representative had already received an unsigned copy of the claim and told the claimant to present the claim to the Probate Court. It all happened the same day; and we hold that there was substantial compliance with the law regarding presentation of the claim. Therefore, the judgment of the Probate Court is reversed and the cause is remanded for the claim to be heard on its merits; and for further proceedings not inconsistent with this opinion.

HOLT, J., dissents.

HOLT, Justice.

I would affirm the judgment of the probate court in this case. Mrs. Rollins, as executrix of the estate here, all will agree, was acting not as an individual but as an officer of the court and her duty in administering the estate placed in her hands has been clearly set out by statute. These duties are mandatory and must...