Opinion
Argued September 21, 1928
Affirmed December 4, 1928 Costs retaxed January 29, 1929
From Multnomah: ROBERT G. MORROW, Judge.
For appellant there was a brief and oral argument by Mr. Robert J. O'Neil.
For respondent there was a brief and oral argument by Mr. Julius Silverstone.
IN BANC.
This is an action by plaintiff, Adolf O. Kirchner, to recover from the defendant, Robert G. Closterman, as executor of the estate of John G. Kuebrich, deceased, the amount of two alleged promissory notes executed by deceased during his lifetime. The notes read as follows:
"$1,200.00. Portland, Oregon, Jan. 2, 1923.
"Five years after date I promise to pay to the order of Otto Kirschner, Twelve Hundred Dollars, at Portland, Oregon. Value received with interest at 7 per cent per annum.
"Due Jan. 2, 1928.
"J.G. KUEBRICH." "$3,000.00. Portland, Oregon, Jan. 2, 1923.
"Five years after date I promise to pay to the order of Otto Kirschner, Three Thousand Dollars, at Portland, Oregon. Value received with interest at 7 per cent per annum.
"Due Jan. 2, 1928.
"JOHN G. KUEBRICH."
The complaint, after alleging the death of Kuebrich and the appointment of Closterman as executor, sets forth a first cause of action on the note for $1,200 as follows:
"That on or about December 5, 1925, plaintiff duly presented his verified claim in writing to said executor for approval in the amount of the principal sum in said promissory note stated, together with interest thereon at seven per cent per annum from the date thereof.
"That on or about January 21, 1926, said certified claim was rejected by the said executor and approval of the same refused.
"That thereafter on or about February 13, 1926, this plaintiff was notified by defendant, as said executor, of his rejection of said claim, and at the same time demand was made by said defendant executor that plaintiff bring an appropriate action upon said claim against the executor in the manner in which other actions are brought, and that the cause be tried and disposed of in the same manner as any other action.
"That no part of said promissory note principal or interest has been paid, and the present value and the claim therefor is equal to the sum of twelve hundred dollars ($1,200) together with interest at seven per cent per annum from Jan. 2, 1923."
The complaint in the second cause of action on the note for $3,000 is in the same language mutatis mutandis. The defendant demurred generally to the complaint, which demurrer was overruled. He then filed a plea in abatement which was overruled and set aside. An answer to the merits was then filed, which, as a first defense, denied all the allegations of the complaint except the death of Kuebrich and the appointment of the defendant as executor. For a second defense the want of consideration was pleaded. Three other alleged defenses were pleaded but were stricken out on motion of plaintiff, leaving the case to be tried upon the issues of nonexecution of the notes, failure to present them to the executor, verification as required by law, and want of consideration.
On the trial the plaintiff introduced the promissory notes above set out, to the introduction of which defendant objected. The objection was overruled and plaintiff further offered in evidence his claim and the verification thereof, which he had presented to the executor. The claim and verification are as follows:
"Portland, Oregon, Dec. 5, 1925. "Estate of John G. Kuebrich, Deceased, "To Adolph O. Kirchner, Dr.
"1. Promissory note dated Jan. 2, 1923, Amount principal ........................ $1,200.00 Interest at 7% accrued to date .......... 245.70
"2. Promissory note, dated Jan. 2, 1923, Interest at 7% accrued to date .......... 614.30 Amount principal ........................ 3,000.00 ____________ "Total, $5,060.00
"Together with interest to accrue on principal sums.
"State of Oregon, County of Multnomah, — ss.
"I, Adolf O. Kirchner, being first duly sworn, depose and say that I am the claimant presenting the foregoing claim to the executor of the estate of John G. Kuebrich, deceased, and that the same is full, true and correct as I verily believe; and that all of the amount of said claim is due and owing to the claimant, and that no part of the same has been paid.
"ADOLPH O. KIRCHNER.
"Subscribed and sworn to before me this 5th day of December, 1925.
"(Notarial Seal) ROBT. J. O'NEIL, "Notary Public for Oregon.
"My commission expires Oct. 18, 1927.
"Indorsement on face as follows:
"Portland, Oregon, January 21st, 1926.
"Examined and rejected by Robert G. Clostermann as executor of the estate of John G. Kuebrich, deceased.
"Indorsement on reverse side:
"Filed in office of county clerk, Multnomah, County, Mar. 23, 1926, Jos. W. Beveridge, Clerk, O.C. Thornton, Deputy."
Evidence was introduced by plaintiff tending to identify the signatures to the notes and the consideration, at the close of which defendant moved for a nonsuit which was denied, and the case was submitted to the jury on plaintiff's evidence, and thereupon the jury returned a verdict for plaintiff. Defendant moved to set aside the verdict and judgment for a new trial, and thereupon the court set aside the judgment and rescinded its former ruling upon the motion for nonsuit, the order being as follows:
"And it further appearing to the court that the motion for an involuntary nonsuit presented at the close of the plaintiff's testimony should have been granted, and that the court erred in overruling said motion, and, further, that the outcome of this case must be the same upon another trial, all the testimony from any source having been presented, the court now sets aside and reverses its ruling upon the motion for an involuntary nonsuit, and now grants said motion.
"Wherefore, it is now considered, ordered and adjudged that the plaintiff take nothing by his complaint herein, and that the defendant in his official capacity as executor do have and recover of and from the plaintiff his costs and disbursements, amounting to the sum of $ ____ to be taxed."
From the above judgment, plaintiff appeals.
AFFIRMED. COSTS RETAXED.
Much printer's ink has been wasted in a discussion of the various points in this case when we consider the fact that there is one point that clearly settles the controversy in favor of the defendant. Section 1240, Or. L., is as follows:
"Claim, How Presented and Verification of. Every claim presented to the executor or administrator shall be verified by the affidavit of the claimant, or some one on his behalf, who has personal knowledge of the fact, to the effect that the amount claimed is justly due, that no payments have been made thereon, except as stated, and that there is no just counterclaim to the same, to the knowledge of the affiant. When it appears or is alleged that there is any written evidence of such claim, the same may be demanded by the executor or administrator, or that its non-production be accounted for."
The verification of the claim presented wholly omits to state "that there is no just counterclaim to the same, to the knowledge of affiant." The statute imperatively requires that this statement be included in the verification. It is material, and, if the claimant can omit one material requirement of the law, he can omit all and present an unverified claim. As said in Williams v. Purdy, 6 Paige (N.Y.), 166, and quoted with approval in Zachary v. Chambers, 1 Or. 321:
"The object of requiring the affidavit of the creditor in such cases is not to prove the existence of the debt, as it is not evidence for that purpose, but it is to prevent the exhibition of fictitious claims against the estate of the defendant, which have been discharged by him in his lifetime; and also to prevent the allowance of claims against which there existed a legal offset known only to the party presenting such claims and which those who are interested in the estate of the decedent may be unable to establish by legal proof."
Again, in Partnership Estate of H. Gibson Son v. Gibson, 124 Or. 193 ( 264 P. 371), this court, speaking through Mr. Justice BELT, said:
"The statutory provision requiring the verification of claims by affidavit was enacted primarily for the benefit of the executor or administrator to enable him to pass intelligently upon claims presented and to prevent spurious or fictitious claims. However, it cannot be said that the legislature intended to ignore the rights of those interested in the estate. The administrator is a representative of the heirs, legatees, distributees, and all of the creditors. It is not for him to waive the provisions of the statute relative to verification in favor of or against any particular creditor. It is not for him to place upon the same plane creditors who have failed to comply with the statute and those who have not conformed to it.
"This court has several times held the statute requiring the verification of claims by affidavit to be imperative."
The case of Aiken v. Coolidge, 12 Or. 244 ( 6 P. 712), when properly considered, does not conflict with the views herein expressed. In that case the claimant, instead of preparing a claim separately and appending thereto the verification required by statute, presented an affidavit which contained a statement of the claim, and also every fact required by statute as a verification. In the language of the court, "the respondent deposed to the fact that the estate was indebted to her in the amount; that there were no legal set-offs or counterclaims existing against it; that no payment had been made thereon, and that the amount was due her."
The objection was to the form of the claim presumably because the claim and its verification were in the form of a single document. The court held that the claim and verification were sufficient as to form and remarked that, if they had not been, the rejection should have been made on that ground. Here the defect is not in the form of the verification, but in substance, the omission of an imperative statutory requisite.
At the risk of repetition, we again say that, until every statutory requirement in regard to the verification of a claim is complied with, the executor has no authority to allow a claim. Neither has a claimant a right to bring an action. In the case at bar, there was a legatee, a sister, and also a residuary legatee and, if the executor had allowed an unverified claim, he would have found himself in the position of the defendant in the Gibson case heretofore cited, liable to make good to the legatee out of his own pocket. In the present case, it appears that the estate is solvent and it follows that the claimant, by presenting his claim with the proper verification, will have an ample opportunity, if rejected, to litigate it, but, until such presentation, he has no standing in the court.
Under our view of the case, there could have been no amendment of the present cause of action, and the order of the court granting a nonsuit tended rather to hasten than to delay proceedings to the extent that plaintiff could more seasonably present a proper claim and have it litigated.
The judgment is affirmed.
AFFIRMED. COSTS RETAXED.
BEAN, J., absent.