Bank of Am. Nat'l Tr. & Sav. Ass'n v. Gesler

WHELAN, J.

Plaintiff appeals from a judgment of dismissal following an order sustaining a demurrer without leave to amend.

The sole point involved is whether an action may be maintained against a decedent’s personal representative upon an unverified claim. We hold that the provisions of section 705, Probate Code, require that a claim must be verified, and that no equitable considerations are present here that would permit of an exception to that rule.

Edward M. Gesler died on March 5,1965.

After the qualification of an administratrix, notice to creditors was first published on September 4, 1965, and the affidavit of completed publication duly filed.

Plaintiff on September 10, 1965, filed with the clerk of the court a demand for special notice dated September 8, 1965, in which plaintiff described itself as a creditor. To the demand was attached a copy of a promissory note which had been executed by the decedent on October 21, 1964 in favor of plaintiff for $4,650; the note was payable on demand, or if no demand on April 21, 1965. On the reverse of the copy appeared: ‘ ‘ 10-21-64—Balance $4650.00. ’ ’

Copies of the document as filed were mailed to the administratrix and to her attorneys.

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On April 28, 1966, almost two months after the expiration of the six-month period to file claims, plaintiff filed in duplicate with the clerk of the court what purported to be a verified “Amended Creditor’s Claim” covering the note, in form which would have been sufficient if filed within the statutory period.

The complaint alleged that no part of the principal or

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interest on the note had ever been paid; and that the whole was owing and unpaid.

No affirmative action was taken by the administratrix with regard to the self-styled amended creditor’s claim.

In announcing that it sustained the demurrer, the court said: “I assume there is nothing to be gained by granting a need to amend,” to which plaintiff’s attorney responded: “No, I don’t believe so. We will have to go on from here.”