Vanderpool v. Vanderpool

• Citation: 138 P. 772,48 Mont. 448
• Parties: VANDERPOOL v. VANDERPOOL.
• Decision Date: 26 January 1914
• Court: Montana Supreme Court

138 P. 772

48 Mont. 448

VANDERPOOL v. VANDERPOOL.

Supreme Court of Montana

January 26, 1914

Appeal from District Court, Sanders County; R. Lee McCulloch, Judge.

Action by Mrs. A. C. Vanderpool against Elizabeth A. G. Vanderpool as executrix of Samuel L. Vanderpool, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

H. J Burleigh, of Plains, and Tolan & Gaines, of Missoula, for appellant.

HOLLOWAY J.

The following promissory note is copied into the complaint and made the basis of plaintiff's cause of action: "July the 15, 1908. I promise to pay to Mrs. A. C. Vanderpool one thousand dollars, $1,000, in three years from date, at 6 per cent interest. S. L. Vanderpool." It is alleged that S L. Vanderpool died testate on June 19, 1911; that the defendant is the duly appointed executrix of his last will and testament; that on August 26, 1911, plaintiff presented her claim for the amount then due on said note, which claim was rejected; and that the plaintiff is now the owner and holder of the note, no part of which has ever been paid. The answer denies the execution or delivery of the note, or any indebtedness due from the deceased to the plaintiff, and denies that any claim for the debt sued upon was ever presented to the executrix. It is further alleged affirmatively that plaintiff's cause of action, if any she ever had, is barred by the provisions of section 7525, Revised Codes. The reply is a general denial of the new matters contained in the answer. Upon the trial of the cause plaintiff testified to the facts and circumstances surrounding the execution and delivery of the note; that no part of the debt evidenced by it had ever been paid, and that about August 17, 1911, she went to the office of Mr. H. J. Burleigh, attorney for the estate, which office was designated in the notice to creditors as the place for the presentation of claims against the estate; that she was informed by Mr. Burleigh that he was the attorney for the estate, and as such could not act as her attorney in preparing her claim in statutory form, but that as a mere matter of accommodation and gratuitously he would prepare her claim for her; that he did prepare a claim; and that she verified it and left it with him, and in a short time thereafter was notified that it had been disallowed and rejected. As to what further took place in Mr. Burleigh's office at that time, the witnesses speak for themselves. Plaintiff testified that she informed the attorney that her claim was founded upon a promissory note, but that the note had been mislaid and she could not find it at that time; that shortly after her claim was rejected she found the note, a copy of which is set forth above, and notified Mr. Burleigh of the fact; that he came to her house, secured the note, and, after keeping it a day or more, returned it to her, with the assurance that she would have no trouble getting her money. Mr. Burleigh testified that when the plaintiff came to his office and asked him to prepare her claim in statutory form, he inquired of her particularly whether she had any note or other writing evidencing the debt; that she informed him that she did not have, and that it was after the claim was rejected, and after plaintiff had been notified, that she then informed him for the first time that she had a note, and that he told her if it was all right she would doubtless receive her money without trouble. Much of the time of the trial was devoted to receiving evidence touching the genuineness of the signature to the note sued upon. The trial resulted in a judgment in favor of plaintiff, and from that judgment and an order denying a new trial, the defendant has appealed.

We have omitted all references to those portions of the evidence which tend to weaken the plaintiff's case as exhibited under the view most favorable to her, as well as all references to testimony tending to defeat her claim or to corroborate Mr. Burleigh. For the purposes of this appeal we may assume that the jury found specifically that plaintiff's version of her transactions with the attorney is correct, and that the evidence is sufficient to sustain that finding. Section 7529, Revised Codes, in treating of claims for presentation against an estate, provides: "If the claim be founded upon a bond, bill, note or other instrument, a copy of such instrument must accompany the claim, and the original must be exhibited if demanded, unless it be lost or destroyed, in which case the claimant must accompany his claim with his affidavit containing a copy or particular description of such instrument, and stating its loss or destruction." Compliance with these provisions involves no difficulty, and a court cannot say that anything less than substantial compliance upon the part of the claimant meets the requirements. It is not within the power of a court either to repeal or amend this section. The only claim which was presented by the plaintiff against this estate, omitting merely formal portions, reads as follows:

Estate of Samuel L. Vanderpool, Deceased, to Caroline E. Vanderpool, Dr. 1908, July 15.

To money loaned deceased to be repaid in 3 years, with interest at the rate of 6 per cent per annum .............	$1,000 00
Interest from July 15, 1908, to

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