Swan v. Estate of Monette, 18921.
Decision Date | 14 August 1968 |
Docket Number | No. 18921.,18921. |
Citation | 400 F.2d 274 |
Parties | Henry A. SWAN and Peggy Ann Swan, Appellants, v. ESTATE of Robert Roseman MONETTE by Ollie Monette, Administratrix, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Glenn G. Glasgow, of Thice, Titus, Glasgow & Johnson, Independence, Mo., for appellants; Daily & Woods, Fort Smith, Ark., were on the brief with the firm of Thice, Titus, Glasgow & Johnson, Independence, Mo.
G. Byron Dobbs, of Dobbs, Pryor & Shaver, Fort Smith, Ark., for appellee; Nabors Shaw, Mena, Ark., was on the brief with the firm of Dobbs, Pryor & Shaver, Fort Smith, Ark.
Before VOGEL, Senior Circuit Judge, LAY, Circuit Judge, and BECKER, Chief District Judge.
Plaintiffs-appellants appeal from an order sustaining defendant-appellant's motion for summary judgment and dismissing the complaint. The issue raised is whether the fact that the decedent carried a policy of liability insurance on his automobile excuses plaintiffs' failure to comply with the Arkansas non-claims statute in pursuing their cause of action against decedent's estate. Arkansas has no direct action statute which could cover the situation herein. We hold, on the basis of a carefully considered and thorough opinion of the District Court, the Honorable John E. Miller, that the non-compliance is not excused and we affirm this appeal on the basis of that opinion. Swan v. Estate of Monette, D.C.Ark., 1967, 265 F.Supp. 362.
Affirmed.
However, I cannot pass this opportunity to observe there is basic appeal to plaintiff's approach.
In Byers v. McAuley, 149 U.S. 608, 620, 13 S.Ct. 906, 910, 37 L.Ed. 867 (1893), the United States Supreme Court observed:
(Emphasis ours.)1
See also Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 (1946).
This court made similar observations concerning the collection of a judgment outside of probate assets against a liability insurance carrier for a decedent in Brooks v. National Bank, 251 F.2d 37 (8 Cir. 1958). There we recognized that a non-claim statute of Kansas did not have an extraterritorial effect in an action against a Kansas executor sued in Missouri for an accident happening in Missouri, and the federal action could be pursued since the action itself otherwise was not disturbing to the assets of the estate.
It is also relevant to observe that a statute of limitations bars only the remedy and not the right. United States v. Whited & Wheless, Ltd., 246 U.S. 552, 564, 38 S.Ct. 367, 62 L.Ed. 879 (1918); Rock Island Plow Co. v. Masterson, 96 Ark. 446, 132 S.W. 216 (1910). And it has been held that if a "right" may lawfully be pursued through a different forum where the remedy is not otherwise barred, the statute of limitations relating to the remedy should not be applicable. Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223 (5 Cir. 1943). Cf. Brooks v. National Bank, supra.
It has long been held that a creditor who can assert diversity jurisdiction has a right to establish his claim within the federal courts notwithstanding the fact that the state has placed the assets of the decedent-debtor within the exclusive jurisdiction of the probate court. This is so because a state statute cannot proscribe or limit federal jurisdiction. Yonley v. Lavender, 88 U.S. (21 Wall.) 276, 22 L.Ed. 536 (1874); Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 43-44, 30 S.Ct. 10, 54 L.Ed. 80 (1909); Harrison v. Moncravie, 264 F. 776 (8 Cir. 1920); Miami Co. Nat'l Bank of Paola, Kan. v. Bankcroft, 121 F. 2d 921 (10 Cir. 1941); United States v. Swanson, 75 F.Supp. 118 (D.Neb.1947); Hellrung v. Lafayette Loan & Trust Co., 102 F.Supp. 822 (N.D.Ind.1951); Falcon Seaboard Drilling Co. v. Cluck, No. 434, not reported (D.Neb.1954) (excellent opinion by Delehant, J.); cf. Prater v. Poirier, 134 F.Supp. 499 (D.Kan. 1955).
However, plaintiff's approach meets difficulty in the basic reasoning set forth in Security Trust Co. v. Black River Nat'l Bank, 187 U.S. 211, 23 S.Ct. 52, 47 L.Ed. 147 (1902), as followed by this court in Zuckerman v. McCulley, 170 F. 2d 1015 (8 Cir. 1948):
187 U.S. at 227, 23 S.Ct. at 58.
The Court relied on an old federal decision, Pulliam v. Pulliam, 10 F. 53, 78 (C.C.1881), which pointed out the distinction between general statutes of limitations and probate non-claim statutes limiting the time for creditors to prove their claims. The court of appeals there had held that the non-claim statutes are "rules of property" as well as statutes of limitations. The United States Supreme Court in Security Trust held a Minnesota non-claim statute of limitations binding upon an action filed in federal court.
However, upon analysis, the Court was bothered by this question:
"But can it be said that, if the foreign creditor delays proceedings in the Federal court until after the time fixed by the order of the probate court for the presentment of claims had expired and after the final distribution of the estate had been effected, and after the final account of the administrator had been allowed and his office had become functus officio, and after all claims of local creditors had thus been precluded, he can use the Federal process to devolve a new responsibility upon the person who had acted as administrator, and to interfere with the rights of other parties, creditors or distributees, which had become vested under the regular and orderly administration of the estate under the laws of the State?" 187 U.S. at 230-31, 23 S.Ct. at 59.
And the Court added:
" Id. at 231, 23 S.Ct. at 59.
However, this rationale must be weighed in light of the doctrine of Markham v. Allen, supra. Where a party is barred as a matter of state law from reaching the assets being administered in the probate court, it is difficult to understand how "vested rights" would otherwise be disrupted by plaintiff's delayed pursuit to a federal judgment. Cf. Pufahl v. Estate of Parks, 299 U.S. 217, 226, 57 S.Ct. 151, 81 L.Ed. 133 (1936). Here, all the plaintiff seeks to do is to obtain a judgment, not collect one. If the debtor has no reachable assets, this should not act as justification to bar his right to assert a claim. The purpose of non-claim statutes, in most instances, is to promote the prompt and orderly administration of estates for all parties, including creditors and distributees. See e. g., Jones v. Arkansas Farmers Ass'n, 232 Ark. 186, 334 S.W.2d 887 (1960); Hurlimann v. Bank of Am. Nat'l Trust & Sav. Ass'n, 141 Cal.App.2d 801, 297 P.2d 682, 685 (1956); In re Peers' Estate, 234 Iowa 403, 12 N.W.2d 894 (1944); Minor v. Lillard, 306 S.W.2d 541 (Mo.1957).
So the basic policy underlying the non-claim statute will not be disturbed by allowing plaintiff's action, since plaintiff admittedly is not and cannot pursue assets in the estate once he obtains a judgment. He seeks only the insurance coverage presumably available outside the probate court. See discussion Brooks v. National Bank, supra.
Nevertheless, Security Trust Co. has not been overruled, and in fact, takes on more significance after Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), as to the binding effect of state law on federal courts.2
Following this principle to conclusion, then, plaintiff's case must fail here, as the district court pointed out, for the basic reason that all applicable statutes of limitations of local law governing his claim have expired. As discussed by the trial court, the common law of Arkansas has long been that upon the debtor's death the general statute of limitations governing claims ceases to run and its only successor is the...
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