Werning v. McFarland

• Decision Date: 12 January 1967
• Docket Number: No. 11194,11194
• Parties: Lawrence J. WERNING, Plaintiff and Appellant, v. Dorothea C. McFARLAND, Executrix of the Last Will and Testament of Verna Werning, Deceased, Defendant and Respondent.
• Court: Montana Supreme Court

Page 851

423 P.2d 851

149 Mont. 137

Lawrence J. WERNING, Plaintiff and Appellant, v. Dorothea C. McFARLAND, Executrix of the Last Will and Testament of Verna Werning, Deceased, Defendant and Respondent.

No. 11194.

Supreme Court of Montana.

Submitted Jan. 12, 1967.

Decided Feb, 6, 1967.

Poore, Poore, McKenzie & Roth, Allen R. McKenzie (argued), Butte, for appellant.

John M. Radonich, Anaconda, William R. Taylor, Deer Lodge, Robert J. Boyd (argued), Anaconda, for respondent.

CASTLES, Justice.

This is an appeal from an order of the district court denying plaintiff's motion to set aside a decree of distribution and order of final discharge in a probate matter.

The will of Verna Werning was admitted to probate on July 6, 1965. The only beneficiaries were Lawrence J. Werning, plaintiff-appellant here and son of Verna Werning, and Dorothea C. McFarland, defendant-respondent and a niece of Verna Werning. Suit was brought against the respondent in her capacity as executrix of the estate of Verna Werning.

On July 27, 1965, the appellant filed a creditor's claim against the estate for services rendered to Verna Werning over a nine year period prior to her death. On the same day the respondent rejected this claim and notified appellant of the rejection in compliance with section 91-2709, R.C.M.1947. This section also provides that if a rejected claim is to be contested, the 'claimant must bring suit in the proper court against the executor or administrator within three (3) months after the date such rejected claim is filed'. The appellant did file a complaint on October 22, 1965, but summons was not served on the respondent until after she had been discharged from her duties as executrix. (Final discharge of the estate was filed on January 5, 1966; summons was served on January 17, 1966).

Section 91-3606, R.C.M.1947, provides for disputed and contingent claims and requires that the amount of such claims be paid into court pending resolution of the claim. It is the position of the appellant that there was no provision in the decree of distribution for his disputed claim and that the executrix was improperly discharged. The basic question is whether the failure of appellant to make service of the summons on the respondent before the final decree and discharge bars this action.

We hold that it does. The purpose of section 91-2709 is to compel a creditor whose claim has been rejected to promptly seek enforcement of such claim. Pierce v. Pierce, 108 Mont. 42, 89 P.2d 269. The appellant argues that the mere filing of a complaint satisfies the admonition of section 91-2709 to 'bring suit' within three months after a claim is rejected by the executor. Under this analysis, the creditor's suit would be governed by the usual provisions of the Montana Rules of Civil Procedure. Rule 41(e) bars an action if a summons is not obtained within one year after the complaint is filed or if service of summons and return is not made within three years.

It appears from the record that the appellant was issued a summons when the complaint was filed on October 22, 1965. Allowing the appellant up to three years to make service of summons would place an unreasonable burden on probate procedure and would ignore the purpose for which section 91-2709 was enacted. That section creates a special limitation on the type of suit before us. (Pierce v. Pierce, supra.) It also provides an exclusive remedy to enforce a rejected creditor's claim. In re Barker's Estate, 26 Mont. 279, 67 P. 941. Nominal adherence to the requirement to 'bring suit' (by filing a complaint) within three months after the claim is rejected, without service of summons, is not substantial compliance with section 91-2709.

This result is supported by the fact that when the decree of final distribution is entered and the executor is discharged, the executor no longer has any legal relationship to the estate and the court no longer retains jurisdiction over the executor. State...