Cowgill v. Dinwiddie
Before: Searls
Synopsis
Estates of Decedents—Bejeotion of Claim—Option of Claimant.—Where the executor or administrator of an estate to whom a claim is presented neglects to indorse his allowance or rejection thereon for more than ten days, it is optional with the claimant to deem the neglect equivalent to a rejection, but he need not so deem it unless he chooses.
Id.—Election op Claimant after Tenth Day—Limitation of Action upon Claim—Soit as Evidence of Election and Notice.—A person having a claim against an estate, who has not elected to consider his claim rejected upon the tenth day after presentation, may subsequently thereto, and at any time before official action by the executor or administrator thereon, elect at his option to consider his claim as rejected, and may, under section 1498 of the Code of Civil Procedure, bring an action thereon within three months after notice of such election, and in the absence of other proof suit brought is conclusive evidence of such election and notice thereof.
Id. —Conditions Precedent to Action—Bejeotion of Claim not Required. —No action can be maintained upon a claim until it is first presen ed, save in the excepted cases specified in section 1500 of the Code of Civil Procedure; hut the statute does not require that the executor or administrator must reject a claim before an action can be maintained upon it.
Id.—Refusal to Allow Inspection of Bejected Claim—Bights of 0 aim-ant.—Where a claim was presented against an estate, and ihereafter. upon inquiry made of the executor’s attorneys, the attorney for the claimant was told that he might consider the claim rejected upon that day, but the attorneys for the executor refused to allow an inspection of the claim or to return it to the claimants, the fact that the claim was, in fact, marked rejected, as of a date prior thereto, could not constitute a rejection of the claim as of that date binding upon the claimant, and such apparent rejection may be disregarded by the claimant.
Id.—Duty of Executor to Return Bejeoted Claim—Concealed Bejeotion Inoperative—It is the duty of an execntor or administrator on demand to return a rejected claim against the estate to the claimant with his official action indorsed thereon; and if he secretly rejects the claim and refuses to deliver it to the claimant, or to inform him of the action taken thereon, it operates, or may operate, as a fraud upon the claimant, and becomes inoperative as a rejection.
Id.—Place of Presentation of Claim—Office of Attorneys of Executor. —Where a notice to creditors given by the executors directs the creditors to present their claims to them at the office of the attorneys of such executors, a claim presented by an attorney of a creditor at the office of the executors» attorneys is properly presented.
Searls, C. Appeal from a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial. The action was brought to recover one thousand dollars upon an instrument in writing executed by Thomas Rochford, deceased, on the third day of December, 1886, to be paid by his executors after his death to the plaintiff, provided said sum is not left for her use in his last will. The demand was presented to-the executors January 16,1891, and as plaintiff avers rejected on the seventh day of February, 1891. Suit was brought within three months thereafter. The answer denies that the claim was rejected on the seventh day of February, 1891, but avers that it was so rejected February 2, 1891, and claims that the action was brought within three months thereafter. The principal contention at the trial seems to have been over the question of the rejection of the claim.
The errors assigned by appellants are as follows: 1. That the findings in this case are contrary to the issues and admissions of the pleadings. 2. That the findings do not respond to all the issues. 3. That the findings contain evidence instead of ultimate facts. The three objections are in their essential elements so blended that they may properly be considered together, and the findings of fact which illustrate them may be summarized in part and stated at length, where deemed necessary, as follows: —•
1. Notice t$> creditors was given by defendants as executors September 29, 1890, in which such creditors were directed to present their claims to them at the law office of Haskell & Meyer, etc., within ten months.
2. Plaintiff’s claim was presented on January 16, 1891, by her attorneys.
3. That thereafter plaintiff’s attorneys called several times and made inquiry as to action by the executors on the claim, and were told that no action had been taken thereon.
4. “That on the seventh day of February, 1891, Frank K. [483]Lippifct, one of the attorneys for the plaintiff, called again at the office of said Haskell & Meyer to learn what action had been taken by said executors, and was told by one of the attorneys for said executors, that he might consider the claim rejected on that day, and that plaintiff commenced this action within three months from the said seventh day of February, 1891”
5. “tThat on said seventh day of February, 1891, the said attorneys for said defendants had the said claim in their said office, and that the same in fact had been indorsed rejected on February 2, 1891.”
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