Steward v. Hinkel

California Supreme Court Mar 26, 1887 No. No. 9626Published

Before: McKinstry, Temple

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Holding. The court held that where an executor refuses to inform a claimant of the status of a claim, the claimant may treat the prior presentation and secret action as void and re-present the claim to trigger the statutory period for suit.

Issues

Whether the three-month statute of limitations for filing suit on a rejected claim begins to run if the claimant is denied information regarding the executor's action on the claim.
Whether a claimant may re-present a claim if the executor refuses to disclose whether the claim was allowed or rejected.

Disposition. affirmed

Quotations verified verbatim against the opinion

“If information with respect to the allowance or rejection of the claim is refused by the executor, the claimant may treat the previous presentation of his claim and secret action, if any, of the executor, as going for naught, and again present the claim.”

“Secret action, which the creditor has no means of knowing is equivalent to no action at all.”

Synopsis

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

The action was brought to recover the value of services alleged to have been rendered by the plaintiff to the defendants’ testator for two years prior to his death. The claim on which the action was founded was originally-presented to the defendants, as executors, on the 5th of October, 1882. The executors rejected the claim on the 12th of the same month, and indorsed their rejection on it, but did not notify the plaintiff of their action. More than three months after the rejection, the plaintiff inquired of the executors what action they had taken on the claim, but they refused to give her any information. She thereupon, on the 9th of March, 1883, presented another claim for the same demand to the executors, who neglected for a period of ten days after the presentation to indorse thereon their allowance or rejection. The action was brought on the latter claim on the 24th of April, 1883. Under section 1498 of the Code of Civil Procedure, an action on a rejected claim must be commenced within three months after its rejection; otherwise the action is barred. On the motion for new trial, it was shown by affidavits that during the progress of the trial one of the jurors temporarily left the jury-box, and remained absent for some time without the consent of the court or counsel, and that during the deliberations of the jury one of the jurors stated to his fellow-jurymen that the estate of the decedent was rich, and could well afford to pay the claim of the plaintiff. The further facts are stated in the opinion of Justice McKinstry.

Opinion — McKinstry

McKinstry, J. Section 1496 of the Code of Civil Procedure reads:—

“ When a claim, accompanied by the affidavit required in this chapter, is presented to the executor or administrator, he must indorse thereon his allowance or rejection, with the day and date thereof. If he allow the claim, it must be presented to a judge of the Superior Court for his approval, who must in the same manner indorse upon it his allowance or rejection. If the executor or administrator, or the judge, refuse or neglect to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect may, at the option of the claimant, be deemed equivalent to a rejection on the tenth day; and if the presentation be made by a notary, the certificate of such notary, under seal, shall be prima facie evidence of such presentation and the date thereof. If the claim be presented to the executor or administrator before the expiration of the time limited for the presentation of claims, the same is presented in time, though acted upon by the executor or administrator, and' by the judge, after the expiration of such time. If the claim be payable in a particular kind of money or currency, it shall, if allowed, be payable only in such money or currency.”

It has never been held that the executor must immediately, on its presentment, indorse a claim “ allowed ” or “ rejected,” or that it must be so indorsed within ten days after it is presented. By the terms of the section the executor is not limited to any specific period within which he must take formal action by indorsing his allowance or rejection of a claim. It may be conceded that it is not the duty of the executor to seek out one who has presented a claim to notify such person that he, the executor, has neglected or refused to act on the claim for ten days after its presentation, or that he has indorsed it “ rejected.” And it may also be conceded that it is the duty of the claimant to inquire of the executor [190]whether the claim he has presented has been acted upon, and how. But as there is no specific limitation of time within which the executor .must allow or reject the claim, there is none within which the claimant is entitled to be informed of the action or non-action of the executor. If he neglect to inquire within three months after his claim has been actually indorsed “rejected,” his suit on the claim may perhaps be barred. Nevertheless, as he cannot maintain a suit on his claim until it has been rejected, he has an absolute right to be informed of its rejection by the executor, who alone knows what formal action has been taken with respect to it. If information with respect to the allowance or rejection of the claim is refused by the executor, the claimant may treat the previous presentation of his claim and secret action, if any, of the executor, as going for naught, and again present the claim.

Steward v. Hinkel

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Synopsis

Opinion — McKinstry

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Concurrence — Temple

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