Roche Valley Land Co. v. Barth

• Citation: 215 P. 654,67 Mont. 353
• Decision Date: 21 May 1923
• Docket Number: 5275.
• Parties: ROCHE VALLEY LAND CO. v. BARTH ET AL.
• Court: United States State Supreme Court of Montana

215 P. 654

67 Mont. 353

ROCHE VALLEY LAND CO. v. BARTH ET AL.

No. 5275.

Supreme Court of Montana

May 21, 1923

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Action by the Roche Valley Land Company against Arthur Barth and another, as executor and executrix of the will of August H Barth, deceased. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Gunn Rasch & Hall, of Helena, for appellant.

Johnston Coleman & Johnston, of Billings, for respondents.

CALLAWAY C.J.

Plaintiff, a creditor, presented to the defendants as executor and executrix of the last will and testament of August H. Barth, deceased, a claim against Barth's estate, which they rejected. It seasonably brought suit upon the rejected claim. This resulted in a judgment upon the pleadings in favor of defendants, from which plaintiff has appealed.

During the administration of the estate the defendants published in a Billings newspaper the following:

"Notice to Creditors.

Estate of August H. Barth. Deceased.

Notice is hereby given by the undersigned executor and executrix of the estate of August H. Barth, deceased, to the creditors of and all persons having claims against the said deceased, to exhibit them, with the necessary vouchers, within ten months after the first publication of this notice, to the said executor or executrix at the city of Billings, in the county of Yellowstone, state of Montana. Dated at Billings, Montana, April 26, 1920. Arthur Barth, Executor, and Annie Barth, Executrix, of the Estate of A. H. Barth, Deceased."

This was published four times, the first publication having been on May 1st and the last upon May 22d, 1920. Upon this publication the court entered a decree adjudging that notice to creditors of the Barth estate had been given. Plaintiff's claim was presented to Annie Barth, as executrix, on April 19, 1922. The period for presentation fixed in the notice had then expired. This, so far as the record discloses, was the reason the claim was rejected. The sole question for decision is whether the notice to creditors was sufficient. If it was, plaintiff's claim is barred and the judgment of the court below is right.

By the terms of section 10170, Revised Codes 1921, "every executor or administrator must, immediately after his appointment, cause to be published in some newspaper in the county, if there be one, if not, then in such newspaper as may be designated by the court or judge, a notice to the creditors of the decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of his residence or business, to be specified in the notice." Section 10173 provides that all claims arising upon contracts, 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.

In furtherance of the policy of securing the earliest possible settlement of the estates of deceased persons compatible with the just rights of creditors, says Judge Woerner, special laws of limitation are enacted in most of the American states applicable to demands against the estate of deceased persons, known generally as statutes of nonclaim, or short or special limitation. The American Law of Administration, § 400. To the end that all obligations of the estate founded on contract may be ascertained definitely, that provision may be made to pay the estate's debts in full or ratably among its creditors, that the estate property may be free from the claims of creditors not presented within the prescribed time, these statutes fix arbitrary periods within which claims must be presented. The notice prescribed by section 10170 is in the nature of a process. It must be complied with in all its essentials in order that an administrator or executor may take advantage of it. Hoyt v. Bonnett, 50 N.Y. 538; State v. Soliss, 66 Okl. 310, 152 P. 1114. In Vanderpool v. Vanderpool, 48 Mont. 448, 138 P. 772, this court recognized the special character of statutes of nonclaim and declared compliance with their requirements to be essential on part of one relying upon them. This applies as well to the executor as to the creditor.

The estate's legal representative is required to notify the creditors to present their claims "to the executor or administrator at the place of his residence or business, to be specified in the notice." The phrase "to be specified in the notice" is pregnant with direction. It directly qualifies the preceding phrase "at the place of his residence or business." The word "specify" has a...