Security-First National Bank v. Bennett

California Court of Appeal Nov 25, 1936 No. Civ. 11159Published

Before: Wood

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Holding. The court held that the three-month statute of limitations for filing suit against an estate after claim rejection does not apply when the action was already pending at the time of the claim's presentation, and that the bank's foreclosure actions were not invalidated by gold payment requirements or the national bank holiday proclamation.

Issues

Whether section 714 of the Probate Code bars an action against an executrix when the suit was pending at the time the claim was presented.
Whether a notice of sale requiring payment in gold coin is void under federal law.
Whether steps taken by a bank to initiate a foreclosure sale during the 1933 bank holiday violated the President's proclamation suspending banking business.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 1498 of the Code of Civil Procedure (now sec. 714 of the Probate Code) can have no application to a case like the present, where the action was already pending when the claim was presented.”

“The notice was not insufficient in fact nor was it legally void because of the provision for payment in gold coin.”

WOOD, J.

Defendants appeal from a judgment in which plaintiff was awarded the balance due on a promissory note secured by a trust deed after a sale of the property given as security.

The action was commenced on August 15, 1933, against seven individual defendants who had signed the note. One of these defendants, William H. Bennett, had died May 4, 1933. Plaintiff presented to Manerva D. Bennett, executrix of the will of William H. Bennett, deceased, on August 8, 1933, its verified claim for the amount for which judgment was rendered. This claim was rejected by the executrix on August 22, 1933. An amended and supplemental complaint was filed on February 9, 1934, in which the death of William H. Bennett was alleged and the presentation and rejection of the claim to the executrix was set forth. It is now contended by defendants that the action is barred by section 714 of the Probate Code, which provides that suits must be brought against the executrix within three months after the date of service of notice of the rejection of the claim. In the case of

Gregory

Clabrough’s Executors,

129 Cal. 475, [62 Pac. 72], the action was commenced during the lifetime of the deceased and the point was made that “the suit was not revived against the executor for over three months after the claim was rejected”. The court held: “Section 1498 of the Code of Civil Procedure (now sec. 714 of the Probate Code) can have no application to a case like the present, where the action was already pending when the claim was presented. All that is required of the plaintiff in such case is simply to present his claim.” The facts of that case are not exactly similar to the facts of the present appeal, the difference being that one of the defendants in the present case died shortly before the commencement of the action. It can be said with equal justification that the section “can have no application to a ease like the present”. In

Gregory

Clabrough’s Executors, supra,

the court applied a liberal interpretation to the code section. The point now presented

[643]

Security-First National Bank v. Bennett

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WOOD, J.

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