Russell v. Dobbs

• Decision Date: 28 February 1962
• Docket Number: No. A-8564,A-8564
• Citation: Russell v. Dobbs, 163 Tex. 282, 354 S.W.2d 373 (Tex. 1962)
• Parties: E. M. RUSSELL and P. L. Allen, Petitioners, v. Alma DOBBS, Administratrix of the Estate of J. A. Dobbs, Deceased, Respondent.
• Court: Texas Supreme Court

Page 373

354 S.W.2d 373

163 Tex. 282

E. M. RUSSELL and P. L. Allen, Petitioners, v.Alma DOBBS, Administratrix of the Estate of J. A. DobbsDeceased, Respondent.

No. A-8564.

Supreme Court of Texas.

Feb. 28, 1962.

Borden & Hand, Weatherford, for petitioners.

Spurlock, Schattman & Jacobs, Fort Worth, for respondent.

WALKER, Justice.

This action was brought by E. M. Russell and P. L. Allen, petitioners, against Alma Dobbs, Administratrix of the Estate of J. A. Dobbs, Deceased, respondent, to establish a claim against the Estate.The claim was not presented to the Administratrix in person but was deposited with the County Clerk on August 24, 1957, as authorized by Section 308 of the Texas Probate Code.¹It was never formally allowed or rejected by the Administratrix, and this suit was instituted on June 10, 1958.

In response th the three special issues submitted, the jury found: (1) that the attorney for the Administratrix by his acts, representations and conduct led petitioners to believe that the Administratrix would approve and pay the claim; (2) that such acts, representations and conduct would have led a reasonably prudent person to believe the Administratrix would approve and pay the claim; and (3) that in reliance thereon petitioners delayed in filing suit until after April 3, 1958.Judgment was entered by the trial court establishing the claim as filed and directing that a copy of the decree be certified to the Probate court.The Court of Civil Appeals reversed and rendered, holding: (a) that the claim was rejected by operation of law at the end of thirty days after it was filed with the Clerk; (b) that the debt was extinguished when petitioners did not institute suit within ninety days thereafter; and (c) that equitable estoppel could not save petitioners from the consequences of their delay.347 S.W.2d 796.

Section 308 authorized claims to be presented by depositing same with the clerk.It also provides that a claim shall be presumed to be rejected in the event the representative fails to act thereon within thirty days after it is filed, and that the failure of the clerk to notify the representative or his attorney shall not affect the validity of the presentment or the presumption of rejection.Petitioners contend that the presumption created by the statute is rebuttable and was overcome in this case by the jury findings mentioned above.We do not agree.

Prior to the adoption of the Probate Code, an executor, administrator or guardian was required to endorse his allowance or rejection on any claim presented to him.The failure to do so operated as a rejection of the claim and authorized the claimant to institute suit.SeeArticles 3516, 3517, 4242, 4243, Tex.Rev.Civ.Stat.1925.The statutes did not prescribe a time within which the representative must act, and it was held that the claim would be deemed rejected at the expiration of a reasonable time after presentment.SeeChandler v. Warlick, Tex.Civ.App., 321 S.W.2d 897(wr. ref. n. r. e.);Dent v. A. Harris & Co., Tex.Civ.App., 255 S.W. 221(no writ).What constituted a reasonable time was ordinarily a question of fact, and it was necessary for a creditor to decide that question at his peril.No suit could be instituted more than ninety days after expiration of a reasonable period, while one brought before the representative has a fair opportunity to investigate the claim was subject to being abated.SeeBurke v. Guilford Mortgage Co., Tex.Civ.App., 161 S.W.2d 574(wr. ref. w. m.).

Much of the uncertainty as to the timing of the steps that must be taken by a claimant to protect his rights was eliminated by the provisions of the Probate Code.The representative is now required to endorse his allowance or rejection on the claim within thirty days after it is presented to him or filed with the clerk.Section 309.His failure to act within the prescribed period on a claim presented to him constitutes a rejection of the claim, and subjects the representative to liability for court costs and to removal from office if the claim is thereafter established by suit.Section 310.In view of these provisions, we are satisfied that the Legislature did not intend to create merely a rebuttable presumption of rejection when the representative fails to act within thirty days on a claim deposited with the clerk.

Section 308 was enacted primarily for the benefit of creditors.It provides a method of presenting claims when the representative cannot be located, and also fixes a definite time at which the claimant becomes entitled to institute suit in the event his claim is not allowed.The purpose of the statute would be defeated if an action instituted by the creditor after expiration of the thirty-day period could be abated upon a showing by the representative that the claim had not been rejected in fact.Since the claim is presumed to be rejected even though the clerk fails to notify the representative, it seems clear that the Legislature was attempting to do something more than establish a period that would prima facie constitute a reasonable time for the representative to act.In our opinion the presumption of rejection created by Section 308 is conclusive in so far as the claimant's right to institute suit and the legal consequences of failure to do so are concerned.

The statute formerly applicable to estates of decedents provided that 'when a claim for money against an estate has been rejected by the executor or administrator, either in whole or in part, the owner of such claim may, within ninety days after such rejection, and not thereafter, bring suit against the executor or administrator for the establishment thereof in any court having jurisdiction of the same.'Article 3522, Tex.Rev.Civ.Stat.1925.This was not regarded as a statute of limitation in the usual sense.Failure to institute suit within the prescribed period could be raised by general demurrer and was not excused by absence of the representative from the State.Cotton v. Jones, 37 Tex. 34;...