Nessier v. Noack

DOOLING, J.

Appellant attacks that portion of the order settling the final account of the administratrix which refused to approve appellant’s claim against the decedent’s estate for $552.64 alleged to have been paid by appellant for the expenses of decedent’s last illness. Appellant did not file or present a claim within the time provided after publication of notice to creditors. However, the administratrix represented to the court that she believed the amount to be justly due and requested the court to authorize her to pay it. She filed no respondent’s brief on appeal, her counsel stating in a letter to the court that appellant “should, in fairness and equity, receive payment if that could be legally done without the Administratrix incurring any personal liability.”

We agree with the probate judge that it cannot be legally done. Section 707 Probate Code states in unequivocal terms that “any claim not so filed or presented is barred forever.” It is appellant’s position that despite this clear language the administratrix may waive the failure to present the claim in the time and manner provided by the Probate Code and the probate judge must concur in her waiver. This argument overlooks the facts that the administratrix occupies a fiduciary duty to the heirs to protect their legal rights in the estate

(Larrabee

v.

Tracy,

21 Cal.2d 645, 650 [134 P.2d 265]; 11A Cal.Jur., Executors and Administrators, § 23, p. 75) and that the probate court is the guardian of the estates of deceased persons

(County of Los Angeles

v.

Morrison,

15 Cal.2d 368, 371 [101 P.2d 470, 129 A.L.R. 443]; 11 Cal.Jur., Executors and Administrators, § 6, p. 214).

[205]

It is the plain duty of both the administratrix and the probate judge to protect the estate against the collection of a debt which the statutory law expressly declares to be “barred forever.”

The Supreme Court said in