Summary
holding that receipt of written notice of claim by the attorney for the executor constitutes statutory presentment
Summary of this case from Wilson v. LawrenceOpinion
No. 34887
Decided May 11, 1967.
Executors and administrators — Claims against estate — Time for filing — Authority to file — Questions considered on appeal — Claim filed with attorney, refused by executor — Powers of attorney in settlement of estate — Acceptance of claim addressed to executor.
1. Where the question of the validity of filing a claim prior to the expiration of the four months after the appointment of the executor, and the question of authority to file a claim after said four-month period under the provision of Section 2117.07, Revised Code, were considered by the Probate Court, the Common Pleas Court, on an appeal from an order authorizing the filing of the claim must consider both the questions.
2. Where an attorney receives, within the four-month period, a claim against the estate addressed to the executor but mailed to the attorney, and the receipt is acknowledged by said attorney, and the executor, after the four-month period refuses the claim on the basis that it was not filed with him in time is not such a wrongful act or statement on the part of the executor or his attorney as would warrant the filing of such a late claim.
3. Section 2109.03 of the Revised Code setting out specific authorization for the attorney to do certain things in respect to the settlement of an estate is not all inclusive and the attorney has many more general powers in connection with the settlement of estate, and the doctrine of " inclusio unius est exclusio alterius" is not applicable.
4. Where the regularly appointed attorney for the executor of an estate within four months after the appointment of such executor receives a statement of claim for services with an accompanying affidavit addressed to the executor of the estate, and where such attorney acknowledges the receipt of the claim and affidavit against said estate, signing said acknowledgment as attorney for the executor and returns that claim to the attorney for the claimant as acting within the scope of his authority, and his act in accepting the claim is the acceptance by the executor, acting through his legally appointed attorney.
Messrs. Gatch, Ritchie Kleinmann and Mr. Frank A. Roberts, for claimant.
Mr. Edward Osborne, for the estate.
This matter came on for hearing on an appeal from an order of the Probate Court of Clermont County which permitted the plaintiff herein to file a claim against the estate on the basis of the facts that we will hereinafter set forth in this decision.
The court has rendered a prior decision and it finally came on for hearing on an application for rehearing. In the original decision, this court took the view that the question as to whether or not there had been a valid presentation of the claim within the four-month statutory period was not before it for consideration, and the opinion dealt basically with the question as to whether or not a claim should be permitted to be filed after the expiration of the four-month period.
On further examination of the proceedings and upon arguments of the attorneys, it is now decided that this question is actually before the court for consideration and will be decided.
There are, therefore, actually two questions before the court: (1) Whether or not the court should allow the filing of a so-called late claim under the provisions of Section 2117.07, Revised Code, or whether or not there was an actual legal filing prior to the expiration of the four-month period.
In respect to the first proposition, the following two sections are involved:
Section 2117.06, Revised Code, provides in part as follows: "All creditors having claims against an estate shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes, or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within four months after the date of the appointment of the executor or administrator * * *." It will be noted under this section that any creditor having a claim against the estate must present the claim to the executor or administrator within four months after the date of his appointment.
Section 2117.07, Revised Code reads in part as follows: "Anyone having a claim against an estate who fails to present his claim to the executor or administrator within the time prescribed by law may file a petition in the Probate Court for authority to present his claim after the expiration of such time. Such petition forthwith shall be assigned for hearing and at least five days before the date of the hearing the claimant shall give written notice thereof to the executor or administrator and to such other parties as the court may designate. The court may authorize such claimant to present his claim to the executor or administrator if, on the hearing, the court finds as follows:
"(A) That the claimant did not have actual notice of the decedent's death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by Section 2117.06 of the Revised Code;
"(B) That the claimant's failure to present his claim was due to the absence of the executor or administrator from his usual place of residence or business during a substantial part of such period or was due to any wrongful act or statement on the part of the executor or administrator or his attorney;
"(C) That the claimant was subject to any legal disability during such period or any part thereof.
"A claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred as to all parties, including devisees, legatees, and distributees and no payment shall be made nor any action maintained thereon, except as otherwise provided in Sections 2117.37 to 2117.42, inclusive, of the Revised Code, with reference to contingent claims."
It will be seen from this section that the Probate Court may authorize the presentation of claims after the four-month period upon three specific grounds designated in the section as (A), (B), and (C). We are not concerned with section (A) or (B). Section (A) is a situation where the claimant did not have actual notice of the decedent's death or the appointment of the executor. This certainly was not true in this case. Section (C) which sets out the court may permit the filing of the claim if the claimant was subject to legal disability during the time within which the claim was to be presented. Section (B) authorizes the court to allow the presentation of the claim where the failure to present the claim was due to the absence of the executor from his usual place of residence or business during a substantial part of the period. This likewise, is not involved here.
The only possible basis on which the court could allow the claim is: that his failure to present the claim was due to a wrongful act or statement on the part of the executor or his attorney. So the question really boils down to this: Was there any act on behalf of the executor or attorney which was wrongful and which caused the claimant not to present his claim in time. The factual matters are basically these: Prior to the expiration of the four-month period the claimant mailed to Charles W. Jackson, the attorney for the estate for Minerva Clark, to his office on Main Street in Batavia, Ohio, enclosing a "statement of claim for services and affidavit in proof of claim." On the 5th day of March, 1964, the said Charles W. Jackson, attorney for the estate, acknowledged receipt of the statement of claimant and affidavit against the estate of Minerva B. Clark. This was prior to the expiration of the four-month period from the date of the appointment of the executor, he having been appointed executor on November 15, 1963. On March 20, 1964, Mr. Jackson wrote to Mr. Lewis Gatch advising him that the executor, Mr. Harry R. Clark, did not receive the claim within the four-month period and, thereafter various court proceedings have been held seeking the right to present this claim.
Without, at this time, going into the question of whether or not there was an actual presentation of the claim, it is conceded that the form of the claim was proper and it was addressed to Harry R. Clark, executor of the estate of Minerva B. Clark, deceased, and supported by affidavit. For the time being, we will not consider the question as to whether or not there was an actual presentation, but merely the question of whether there was any wrong doing on the part of the attorney for the estate or of the executor himself, that caused the claimant not to present the claim within the four-month period. Arguments have been presented in the briefs as to certain standards of ethics and certain customs that have prevailed in dealing with the attorney in connection with the settling of the estate and this court will recognize the fact that in many instances where there is no dispute about a claim, such as the claim for funeral expenses, as the formalities in connection with the presentation of a claim are not always followed. This claim, however, one which was known would be contested, which was more than the entire assets of the estate, and in reality if the claim were presented and allowed, it would mean that the executor who was the sole beneficiary under the will would receive all of the estate, or where the claimant would receive all the estate. The statute is quite specific as to whom the claim should be presented, and that is the executor or the administrator, and the courts on the whole have ruled that it is the responsibility of the claimant to ascertain who the executor is and to know his address and to present it to him. In this case both the claimant and the executor were children of the decedent, of mature age, and so there was no question that claimant had complete knowledge of where and to whom to present the claim. The courts have generally held that the attorney for the estate has no legal obligation to tell any claimant as to where the executor was, who the executor was, or to advise them as to the procedure of presenting the claim. The name and address of the executor are a matter of public knowledge and, of course, in this case, were personally known to the claimant.
This court is interested in following the development of the statute in respect to presentation of the claim. The early section, which was Section 10509-134, General Code, which was in effect until 1953, gave the Probate Court considerable latitude in allowing the presentation of a so-called "late claim." The section at that time provided that the court could permit the filing of a late claim after notice to the interested parties if "justice and equity so require" and that the petitioner was not chargeable with culpable neglect in failing to present his claim within the time so prescribed. It will be noted how different that is from the present wording and if that section had been in effect at the time of the controversy, the court would have had no hesitancy in allowing the claim. However, it has changed and the court cannot hold as a matter of law upon the evidence presented, that the failure of the claimant to present his claim within the four-month period was due to any wrongful act or statement on the part of the executor or his attorney.
After the original hearing and the preliminary decision by this court, which was filed on January 30, 1967, one case was presented to the court which was reported in the February 27 issue of the Ohio Bar. This case was the case of In re Estate of McCracken, and is reported in 9 Ohio Miscellaneous at page 195 and is from the Probate Judge of Portage County. This case, in substance, held that it was a wrongful act under the provision of Section 2117.07, Revised Code, for an executor to absent himself from his home for a period of seven days prior to the expiration of the four-month period without making arrangements for someone receiving his mail and in that particular case, the court authorized the filing of the claim as a late claim on the basis that this was a wrongful act, and permitted such late filing. This court would not feel that it should go that far in determining what was a wrongful act, but the case is cited showing the tendency of the courts to go to considerable length to permit the filing and to have an actual determination of claims against the estate, and of course, with this principle, this court agrees. The court will find, according to this, that there was not such a wrongful act on the part of either the attorney or the executor to authorize a filing of a claim after the four-month period.
The second, and equally important question for the court to decide is whether or not there was an actual filing of the claim legally, prior to the expiration of the four-month period. There is no dispute of the facts in connection as to what actually happened. They are, basically, as follows:
Harry R. Clark was appointed executor of the estate of Minerva Clark on November 15, 1963, and thereafter the publication of his appointment was duly filed with the court.
At the time of the appointment, Charles W. Jackson, an attorney at law, was appointed to represent the executor in connection with the settlement of the estate.
On March 3, 1964, Gertie Rardin signed a claim against the estate, and attached thereto was an affidavit verifying the claim. The claim was headed "Gertie C. Rardin, Licensed Practical Nurse, 3534 Shaw Avenue, Cincinnati 8, Ohio" to Harry Clark, executor of the estate of Minerva B. Clark, deceased, and there were itemized in the claim, items of board, room and nursing care, starting on November 19, 1957, and at various intervals, running up to the date of the death of Minerva Clark, on October 18, 1963. The amount of the claim total is $17,235.00. Attached to the claim was an affidavit setting out that there were no payments, no counterclaims, no setoffs. This claim was enclosed in a letter addressed to Charles W. Jackson, attorney for the estate of Minerva B. Clark, deceased, at his office in Batavia, Ohio, and that stated that the letter was "Re Estate of Minerva B. Clark" and further stated that the statement of claim for services and affidavit in proof of claim were being presented to him on behalf of the attorney's client, and the letter was signed "Gatch, Ritchie Kleinmann, by Lewis G. Gatch." The letter contained a request that Mr. Jackson acknowledge the receipt of the statement of claim and affidavit. This was in the following words:
"I hereby acknowledge receipt of the above statement of claim and affidavit against the estate of Minerva B. Clark." This was signed, "Charles Jackson, Atty. for Estate, March 5, 1964." This date is admittedly within the four-month period after the appointment.
The further facts are that on the 21st day of March, 1964, Harry R. Clark, as executor of the estate of Minerva Clark, filed a schedule of claims in which the above claim was not included, and the only claim listed in the schedule of claims was that of the funeral director. The affidavit in connection with the schedule of claims was sworn to before Charles W. Jackson.
The question, therefore, before the court is whether under these facts, there was a valid filing of a claim prior to the expiration of the four-month period after the appointment of the executor.
Section 2117.06, Revised Code, provides in part as follows: "All creditors having claims against an estate shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes, or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within four months after the date of the appointment of the executor or administrator." There are certain exceptions to the claims that must be presented, such as personal taxes, and likewise, certain requirements such as the listing of the debts, but none of these are important or applicable in this matter.
It is admitted, of course, that the claim was not personally presented to the executor, and the question, therefore, is the mailing of the claim to the regularly appointed attorney in the settlement of the estate, which claim was listed as being a claim against the executor and the acknowledgment of the receipt of the claim by the attorney for the estate is a filing with the executor in compliance with the provisions of the above mentioned statute. The answer to this question must be based upon the authority of the attorney and the general rules of agency.
Section 2109.03, Revised Code, sets out the powers of the attorney for the estate. This section reads as follows: "At the time of the appointment of a fiduciary, such fiduciary shall file in the Probate Court the name of the attorney, if any, who will represent him in matters relating to the trust. After the name of an attorney has been filed, notices sent to such fiduciary in his official capacity shall also be sent by the court to such attorney who may sign waiver of service of any or all of such notices upon him. If the fiduciary is absent from the state, such attorney shall be the agent of the fiduciary upon whom summonses, citations, and notices may be served. Any summons, citation, or notice may be served upon the fiduciary by delivering duplicate copies thereof to the attorney designated by him. No probate judge shall permit any person to practice law in the probate court for compensation, unless he has been admitted to the practice of law within the state. This section does not prevent any person from representing his own interest in any estate, matter, action, or proceeding."
It will be noted that there is no specific mention in this section as to the power of the attorney to receive on behalf of the executor, claims against the estate, and it, therefore, becomes a question, "What is the extent of the authority of the attorney who represents the executor?"
In the application by Mr. Clark, as executor of the estate, the following appears: "The name of Charles W. Jackson, attorney who will represent _____ in matters relating to this trust is hereby filed in this Court." It will be noted that that is a general power of appointment of an attorney. Charles W. Jackson was appointed to represent the executor in matters pertaining to this trust. This is not restricted in any way, and therefore is governed by the general rules of agency.
There are two cases that were presented to the court for consideration; the case of the Beacon Mutual Indemnity Co. v. Stalder, 95 Ohio App. at page 441, in which the court held that the presentation of a claim to the agent of an insurance company was not tantamount to presenting a claim to the administrator. Likewise, in the case of In re Estate of Miller, 98 Ohio App. at page 445, it was held that the presentation of a claim to the widow of the decedent, who was not the administrator, was not a legal presentation of a claim, and this court held that the attorney had no duty to advise the claimant as to who was the legally appointed administrator as that was a matter of public record, and the Miller case chose to accept the statement of an outside third party as being factually correct, when actually it was the wrong information. These two cases, in the opinion of the court, are not in point, inasmuch as there was no question of agency involved, and therefore, no authority of any kind to present these claims to entire outsiders.
The fact that the provisions of Section 2109.03, Revised Code, should not be too strictly construed was decided in the case of Meisner v. Flemion, Exr., 109 Ohio App., page 117, which held that the attorney had the right to accept summons in cases originating in the Common Pleas Court, even though it was not so specifically stated in that section.
The general rule in respect to the authority of attorney is set out in 6 Ohio Jurisprudence 2d 50 et seq., and states that the attorney's authority is limited to the nature of the employment for which he was engaged. In this case, there was a general authority at the time of the appointment of the executor, and therefore, the attorney had the right to act generally in behalf of his client in all matters in connection with the settlement of the estate.
The question of knowledge of the attorney being knowledge of the principal is set out in 6 Ohio Jurisprudence 2d under "Attorneys at Law" and paragraph 38. This is on page 56 of that volume and states as follows: "The general agency rule that the principal is chargeable with and bound by the knowledge of or notice to his agent received by the agent in due course of his employment, with reference to matters to which his authority extends, even though such knowledge or notice is not actually communicated to the principal, applies to the relation of attorney and client, and an attorney's notice or knowledge of facts affecting the rights of his client will be considered notice to the latter. Thus, the rule applies to notice to an attorney in connection with a pending judicial proceeding, it being said that if this were not so, the orderly and effective administration of justice would be thwarted, and by carelessness or collusion unseemly and unjust delays would be judicially sanctioned. * * *"
It is quite apparent that the attorney in connection with any legal matters in the probate or other courts, has authority to bind his client, and many times he does things that have a very vital effect upon his client. One of the best instances is the filing of a paper in a lawsuit that would, in effect, waive a possible defective service of summons. The filing of an answer, and the attorney does have the right to sign the answer and swear to it if the matters are within his personal knowledge. The whole question of the conduct of a lawsuit is basically upon the attorney and in the settlement of an estate, the procedure from a practical matter, is likewise, handled by the attorney.
While it is established law that the trustee cannot delegate his particular authority where he acts by and through his duly appointed attorney, that is not the delegation of the authority but is the act of a principal acting by and through his agent. This is quite clearly set out in the case of Miller v. Ewing, Admr., 68 Ohio St. 176, wherein the executor acting by and through his attorney, rejected a claim, and thereby started the statute of limitations running. The third paragraph of the syllabus of that case reads as follows: "Such rejection may be made by an attorney for the estate thereunto duly authorized, acting ostensibly and in fact for the administrator." In that case it was the rejection of a claim, and in this case it is the receipt of a claim.
The court, on page 184, stated as follows: "Without questioning the proposition that the execution of the trust reposed in the administrator to allow and reject claims cannot be delegated, it is manifest by this evidence that the attorney, in his interview with Miller, was speaking for the administrator, and it is not the law that a trustee cannot act through an agent. Where he gives to the attorney instructions how to act, it is not a delegation of the trust, but a performance of it by the trustee acting through another."
It, therefore, appears to the court, and the court will hold, that the acceptance of the claim and the acknowledgment of the receipt of the claim by the attorney, regularly appointed in this case, is, in reality, the acceptance of the filing of the claim by the executor, acting by and through his duly authorized agent, and the court holds that the attorney and agent, in so doing, is clearly acting within the scope of his authority.
An entry may be drawn affirming the decision of the Probate Court authorizing the claim to be considered by an administrator, and the matter will be returned to the executor to allow or reject this claim in the manner prescribed by the Probate Laws of the state.
The attorney for the estate may note his exceptions to the ruling of the court in the entry when it is presented.
(No. 34887 — Decided June 13, 1967.)
ON REHEARING.
NICHOLS, J. This case is before the court on an appeal from the ruling of the Probate Court of Clermont County allowing the filing of a claim against the estate.
This court has heretofore rendered a decision which was filed on May 11, 1967, and on June 9, 1967, this decision was ordered journalized. The court had, prior to that time, filed another decision in which he felt that he did not have the authority to rule on the question as to whether or not there had been a valid presentation of a claim prior to the four-month period.
Upon the application for reconsideration, and actually with the agreement of the parties, it was determined that that was argued and involved in the presentation before the court, and so was properly before the court.
On the decision of May 11, 1967, the court decided that there were no grounds for filing a claim after the expiration of the four-month period on the basis that there is nothing in this case that was covered by the provision of Section 2117.07, Revised Code, and specifically held that under Section (B) of that Code Section there was no wrongful act on the part of the executor or his attorney; though it did, however, rule that there was a valid presentation of the claim to the executor prior to the four-month period, this being made by filing a claim directed to the executor and mailed to the attorney and by his attorney accepted.
The court allowed further oral arguments on this matter and the attorney for the estate presented three specific reasons why he felt that the decision of the court was wrong.
The first he stated was that Section 2109.03, Revised Code, is applicable and that the doctrine of " inclusio unius est exclusio alterius" was applicable in the interpretation of this statute. The court in its original decision held, and still feels, that this doctrine is not applicable as this section provides in part that the fiduciary shall file with the Probate Court the name of an attorney who will represent him in matters relating to the trust. Thereafter certain specified matters are outlined to give the attorney certain specific powers. The court feels that this is much too limited. The attorney does have much greater powers and responsibility than were specifically set out in this statute.
The second question raised was that the case of Miller v. Ewing, Admr., 68 Ohio St. 176, was based upon a specific authorization and there was no specific authorization in this case.
The court feels that this reasoning is not sound as it is felt that the attorney, under the provisions of Section 2109.03, Revised Code, does give the attorney broad powers and it is so held in the Miller case. This case holds, in effect, that while the trustee cannot delegate his authority to the attorney, where the attorney does something within the apparent and actual limits of his authority, it is actually the account of the executor himself.
In this particular case the claim was addressed to the executor. It was placed in an envelope and mailed to the attorney designated to represent the executor in the estate, and the receipt of the claim against the estate of Minerva Clark was acknowledged by the attorney for the estate within the four-month period. Certainly if the attorney has a right to notify a claimant that the claim has been either accepted or rejected, which is a matter of discretion with the administrator, he has the right to acknowledge for the administrator or executor with the filing of a claim, which is in the opinion of the court, merely a ministerial act.
The Miller case has not been reversed, still stands unmodified, and as a matter of fact, it was declared to be a ministerial act by the Federal Circuit Court of Appeals, the Sixth Circuit in the case of Schofield v. Thompson, 109 Federal Reporter Second Series 432.
The attention of the court was called to two cases by the attorney for the estate; namely, In re Keenan's Estate, 2 Ohio Supp. 390. In that case the claim was presented to the attorney with the mistaken thought that the attorney was the executor. This is entirely different, in fact, from the case at bar, and the court feels that it is not applicable.
Possibly, the closest case in point, other than the Miller case, is the case of the Beacon Mutual Indemnity Co. v. Stadler, 95 Ohio App. 441. This case holds that the filing of a claim with an insurance agent is not the same as filing it with the executor, even though specifically authorized. The great distinction between this case and the case at bar is that the insurance agent is not and could not, under the law, act as a representative of the executor. Section 2109.03, Revised Code, specifically limits the representative to a person authorized to practice law, and therefore an insurance agent could not legally represent the administrator. In this case, however, the court did not hold and does not hold that the executor has a right to delegate his powers. He merely held, and still holds, that where a claim made out to the executor of the estate, mailed to the attorney duly appointed to represent the executor, and acknowledged to have been received by him as the attorney for the estate, it is the act of the executor, acting by and through his duly authorized agent.
The court will reaffirm his decision of May 11 and authorize the attorney for the claimant to present an entry affirming the decision of the Probate Court, and it will be ordered that this supplemental decision be journalized.