Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 18 Cal. 422 at 429.
Appeal from the Third District.
The instrument signed by Hartnell, ratifying what Smith had done and guaranteeing the payment of the $ 5,000 to Pico. is as follows:
" I, the undersigned, Miguel Smith, say, that having purchased from Don Abel Stearns the amount of two hundred cows, at the price of twenty-five dollars each, the value of which amount to $ 5,000, with the condition of my having the privilege of making payment in the term of two years reserved (?) from this date, with interest at two per cent. per month until said payment is made, and said Stearns having exacted of me a warrantee, to his satisfaction, to deliver to the said cattle. Senor Don Pio Pico executed the same, signing with me a document in (illegible word) et in solidum, a joint and several document) of date the eleventh of the present month. Said Senor Pico contracted the responsibility in virtue of there having been shown to him a letter from Sr. Don Guillermo Hartnell, dated in Santa Barbara the second day of April of the present year, by which he binds himself to guarantee the payment of the said $ 5,000, and also of the interest which may accrue therefor. I declare by these presents that I have received the above mentioned two hundred cows to my satisfaction, and I bind myself that said Senor Hartnell shall remit to Senor Don Pio Pico the guarantee, competent to the purpose of covering the responsibility which weighs upon him by the document which he has executed to said Stearns, the said letter of Senor Hartnell remaining in the meantime in possession of Senor Pico by way of security to him.
" Angeles, May 18th, 1853. Miguel Smith."
" In fulfillment of the foregoing promise made by Don Miguel Smith, and ratifying the contents of my letter to Don Abel Stearns, which is referred to, I constitute myself responsible to Senor Don Pio Pico for the $ 5,000, value of the two hundred cattle which said Smith bought from Senor Stearns, and also for the interest which may have accrued at the termination of the two years in which Senor Pico and Smith bound themselves to make payment, which will expire the eleventh of May, 1855, and to the fulfillment I bind my property present and future.
" Guillermo Edo. P. Hartnell.
" Witness, Antonio Jose Cot."
[Here follows the affidavit of Cot to the genuineness of Hartnell's signature, which is omitted.]
Then follow these indorsements:
" Presented and admitted this present document this 14th July, 1854. San Francisco, State as above.
" Pablo de la Guerra,
" Executor of the late G. E. Hartnell.
" Witness J. M. Covarrubias."
" Seen and approved June 19th, 1855.
" Wm. H. Rumsey,
" Probate Judge."
" Filed August 22d, 1854.
" James H. Gleason,
" Probate Clerk."
COUNSEL:
The claim of plaintiff was not presented to the executor of Hartnell's estate in proper time and form, and is therefore barred. There was no affidavit attached to the claim, and its allowance, without the affidavit, is void. Such affidavit is necessary to give the executor jurisdiction to act. (Act of 1851 relative to Estates of Deceased Persons, secs. 128-134; 14 Wend. 190; 4 Cowen, 493.) Section two hundred and forty-four of the act does not dispense with the affidavit in cases of claims not due or contingent. That section contemplates the presentation and allowance of claims not due, by agreement of the creditor, the executor, and the Probate Court; but it does not contemplate or provide for the allowance of contingent or uncertain claims, and certainly does not dispense with affidavit as to such claims. Persons holding such claims, although they have never been presented to the executor, may come into Court and present their claims, and the Court might reserve a fund to meet the contingent liability.
H. O. Beatty, for Appellants.
A. C. Monson, also for Appellants.
John H. Saunders and Wm. Matthews, for Respondent.
No affidavit is required in cases of claims against estates not due or contingent, and a presentation of such claims to the executor before they become due or absolute is valid. (Act of 1851, concerning Estates of Deceased Persons, secs. 130, 244; Wren's Adm'r v. Spans' Adm'r, 1 How., Miss., 120; 3 Id. 216; Id. 301; 4 Id. 242; 2 Smedes & M. 403; 5 Id. 651; 10 Tex. 197; 8 Ind. 236; Stark v. Moore , 5 Ala.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
BALDWIN, Judge
A rehearing having been granted, and the case reargued, Baldwin, J. delivered the opinion of the Court--Cope, J. concurring.
We granted a rehearing in this case at the instance of the respondent, upon the suggestion that we had fallen into a misapprehension of facts, and had omitted to consider some provisions of the statute in reference to the estates of deceased persons bearing upon the main point of the opinion.
We did not place our decision upon the ground that the agreement of Hartnell to guaranty Pico was void. As it is not necessary to pass upon this point, we omit all reference to it.
We adhere to our conclusion that the claim against the estate is invalid, because not properly presented within the time allowed by law. The first presentation was prior to the time when the debt was payable, and before the liability of the guarantor was fixed. We are referred to the two hundred and forty-fourth section of the act in relation to the estates of deceased persons. That section is in these words:
" If there is any claim not due, or any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, or established, or absolute, shall be paid into the Court, where it shall remain to be paid over to the party when he shall become entitled thereto; or if he shall fail to establish his claim, to be paid over or distributed as the circumstances of the case require; provided, that if any creditor whose claim has been allowed, but is not yet due, shall appear and assent to a deduction therefrom of the legal interest for the time the claim has yet to run, he shall be entitled to be paid accordingly."
It has been argued that this section, taken in connection with the one hundred and thirtieth section, dispenses with the presentation of the claim accompanied by an affidavit as prescribed by the one hundred and thirty-first section, if presentation is made of the contingent claim before the same matures, or is made absolute and within the statutory period. It is true that the one hundred and thirtieth section relieves the holder of the contingent claim from any presentation of it until it shall become absolute, but the holder may wait until it becomes absolute, and then have ten months from that time within which to present it. But still such claim may be presented to the Probate Judge, by the two hundred and forty-fourth section, and although the party need not--indeed, could not--make the affidavit required by the one hundred and thirty-first section, still the effect of it might be to cause the money to which the party may be prospectively entitled to be paid into Court, etc. But this does not relieve the party from the necessity of presenting the claim to the administrator, after it becomes absolute, with the affidavit required, before the administrator is compelled to act on it. This seems to be the necessary result of the one hundred and thirty-fourth section. By this and the one hundred and thirty-second section, the allowance or rejection of the claim fixes the rights and liabilities of the estate. It is difficult to see what effect the rejection by the administrator of a mere contingent claim would have. No money is claimed--nothing is due--no right of payment or demand for recognition of the claim as a debt is asserted. A rejection would give no right of suit. When the contingency has happened which gives the creditor the right, then he may assert it; but the right under the statute is to claim that the administrator acknowledges the debt, which allowance, with the approval of the Judge, fixes the obligation upon the estate in the same manner as a judgment; or if the administrator refuses to acknowledge the debt, then the creditor has his remedy by suit, which he must bring within three months after the rejection. The claim is not constituted by the facts which raise a contingent liability, but by the facts which show that it has accrued; in other words, in this case, by the incurring of the obligation to pay a debt for the principal debtor of Stearns, at the instance of Hartnell and on his guaranty, and the actual payment of that debt. The claim thus originating and perfected must be presented to the executors of Hartnell; and an opportunity given them to allow or reject it; for the whole policy of the statute is, that no suit shall be brought against the executors until they have had an opportunity to examine the claim and pass upon it--and no presentation is effectual without an affidavit of the justice of the claim. The mere fact that they once had notice of a contingent or potential demand--that at some future time the plaintiff might have a claim against the estate of their testator--is not enough to answer the requirement. They had no opportunity to pay the claim or recognize it, nor, so far as appears, notice of its existence. The object of the two hundred and forty-fourth section is illustrated by the preceding sections, which provide for the settlement of the estate. Section two hundred and forty-three provides that upon the settlement of the accounts of the executor and administrator at the end of the year, as required in this chapter, the Court shall make an order for the payment of the debts as the circumstances of the estate shall require. If there be not sufficient funds in the hands of the executor or administrator, the Court shall specify in the decree the sum to be paid to each creditor. But it then occurred to the Legislature that the effect of this order might be to leave out the contingent claims, which, when made absolute, were or would be equally entitled to payment; and to remedy this, the two hundred and forty-fourth section was inserted, which provided for retaining in the hands of the Court the amount to which the holder of these claims would be entitled on the happening of the contingency which was to make them absolute. But this was a mere cautionary provision, not affecting, in any degree, the process by which such claims were to be authenticated and presented.
The former opinion, as herein modified, will stand as the ground of our decision.
Decree reversed, and cause remanded.