ELKINGTON, J. I respectfully dissent.
The plaintiffs in the action below (the real parties in interest here), within three months of the subject tort, filed a negligence action for personal injuries against the administratrix of the estate of the alleged tortfeasor, named in the complaint as Doe One. The only asset of the estate was a $25,000 liability insurance policy, and the plaintiffs waived all claim in excess of the policy’s benefits. The decedent’s widow was promptly served with the action’s summons and complaint and was requested to “give the enclosed summons and complaint to your insurance carrier in order that your rights might be fully protected.” The papers were so delivered, and the insurance company entered upon the action’s defense. Over a period of many months plaintiffs’ lawyer and the widow’s (and insurance company’s) attorney “communicated back and forth many times, extensions of time to answer were granted, we exchanged depositions, etc.”; some of the extensions of time were written and some were oral. At some point during this period the widow’s attorney caused her to be appointed administratrix of the decedent’s estate. She then commenced publication of notice to creditors according to Probate Code section 700. But “No notice of the probate was given to [plaintiffs’ attorney] even though we had been in constant communication.”
When more than one year had elapsed “after accrual of the claimant’s cause of action,”* and the time for filing claims against the estate had [472]expired, and while extensions of time to plead to the complaint appeared to continue in effect, the administratrix was caused to demur to the complaint on the ground “that no claim has been filed against the Estate . . . pursuant to the requirements of Probate Code Section 707.” The demurrer was sustained on the stated ground.
Plaintiffs then petitioned the superior court “for leave to file a late claim.” The court, presumably believing the facts as related above, ordered the requested relief. We thereafter granted an application of the administratrix for review of that order.
The administratrix relies upon Probate Code section 707, which as relevant provides: “[A]ll claims for damages for injuries to or death of a person . . . must be filed or presented within the time limited in the notice [i.e., four months] . . . and any claim not so filed or presented is barred forever,...”
It is, of course, the general rule that “ ‘all claims against the estate of a decedent arising upon contract must be filed or presented within the time prescribed in the published notice to creditors, and if not so filed or presented they are barred forever.’ ” (Nathanson v. Superior Court, 12 Cal.3d 355, 362 [115 Cal.Rptr. 783, 525 P.2d 687]; and see the authority there collected.)
But nevertheless there has developed in this state a liberalized policy permitting late filing, or no filing, of claims against a decedent’s estate, where no substantial prejudice to the rights of its heirs or legatees is involved. This policy is highlighted by the case of Satterfield v. Garmire, 65 Cal.2d 638 [56 Cal.Rptr. 102, 422 P.2d 990].
Satterfield v. Garmire concerned an action for wrongful death and personal injuries against a decedent’s estate. The defense had been accepted by the decedent’s insurance carrier, and the claim appeared to be fully insured. After service of the complaint and summons, pleadings were filed, and settlement negotiations ensued. Not until after the statutory time for filing claims had passed did the defendant, in a pretrial statement, first assert the absence of such a claim. For lack of a timely Probate Code section 707 claim the action was thereafter dismissed. On appeal the Supreme Court concluded that because the defendant executor had been timely apprised of the nature of the claimed obligátion, and since the rights of the heirs and legatees were in no way prejudiced, “the purposes of the [statute had] been fulfilled” and [473]defendant had “received all the benefits secured to him by Probate Code section 707.”
The Satterfield v. Garmire court, finding a lack of “precise guidance” in the decisions, applied the rule that: “ ‘Equity does not wait upon precedent which exactly squares with the facts in controversy, but will assert itself in those situations where right and justice would be defeated but for its intervention.’ ” It rejected an argument that the provisions of the statute could not be waived, pointing out that the “rule against waiver may be traced to the fiduciary capacity [vis-á-vis the heirs and legatees] in which the administrator or executor acts.” And finding, inter alia, that “the estate is protected by insurance coverage exceeding the amount of the claim; and waiver results in relinquishment of no substantial benefit of or causes no detriment to the heirs or legatees,” the court concluded that under the evidence adduced, the plaintiffs had waived the timely filing of a Probate Code section 707 claim. The judgment of dismissal of the action was accordingly reversed.
As in Satterfield v. Garmire the instant plaintiffs’ claims against the estate were fully insured, the defendant administratrix had been timely apprised of the nature of the claimed obligation, the rights of heirs and legatees were in no way prejudiced, and the defendant had “received all the benefits secured to [her] by Probate Code section 707.” The superior court’s ruling may here also reasonably be interpreted as based on a waiver by the defendant administratrix of the time requirement of the Probate Code. That court, weighing the evidence, was legally justified in so concluding, and its conclusion should accordingly be respected by us.
I would apply the equitable principles of Satterfield v. Garmire, and let the superior court’s order stand.
The petition of the real parties in interest for a hearing by the Supreme Court was denied April 15, 1976. Tobriner, J., and Mosk, J., were of the opinion that the petition should be granted.
Probate Code section 720 provides, as relevant: “If a claim for damages for injuries to ... a person, for which no action . .. was pending at the time of the decedent’s death, is not filed within the time otherwise limited by this article, the court, upon application of the claimant made not later than one year after accrual of the claimant’s cause of action .. . shall permit the filing of the claim ....” (Italics added.) Note that this statute applies whether or not the claim is insured.