Roddan v. Doane

Temple, C. Defendant appealed from the judgment on a bill of exceptions within sixty days after its rendition.

The action was for money had and received by defendant's intestate, and it is contended that the claim presented to the administratrix had not been rejected before the commencement of the action. The notice to creditors required them to present their claims to the administratrix at the office of E. W. McGraw, Esq., 318 California Street, San Francisco.

June 25, 1889, plaintiff went to the office indicated, and the administratrix, not being present, left his claim for her, and took a receipt for it, signed by McGraw, through his clerk. McGraw was an attorney at law, and the place indicated was his office, and presumptively his clerk was authorized to receive papers for him. But the notice did not require or authorize the presentation to. McGraw, but to the administratrix, at this office. Is such a presentation good, in the absence of the administratrix?

The precise question does not seem to have been passed upon by this court; but in Bollinger v. Manning, 79 Cal. 7, the court considered the sufficiency of a notice [557]requiring claims to be presented to the administrator at the office of his attorneys, “ the same being his place for the transaction of the business of the estate.” This was held to be a compliance with the code, which directs the administrator to publish a notice requiring presentation of claims “ at the place of his residence or business, to be specified in the notice.” The court said: “It seems to us that the words ‘ place of his business ’ should be. construed to include the place where the administrator transacts the business of the estate, though he may be engaged in transacting some kind of business elsewhere. To hold otherwise would often render it quite inconvenient for creditors to present their claims at all. For example, the administrator may live and be carrying on a farm many miles distant from the county seat, where most or all of the creditors reside, or he may live and be employed in a workshop in some obscure part of a city, not easily accessible.”

The rationale of this decision goes the full length of respondent’s contention. For to avoid the inconvenience supposed, it is necessary to hold good a presentation at the office while the administrator is absent at his farm or workshop. The requirement that claims must be presented before suit can be instituted is for the protection of the estate, and implies that an opportunity will be afforded to creditors to present their claims. Here the administratrix certainly did not expect to remain at McG-raw’s office, and it seems necessary to hold either that such a presentation is good in her absence, or that such a notice is void.