In RE ROPP v. Glissman ( 1968 )

Faulconer, J.

— After the death of her husband appellantQuinlan put her money in a joint savings account with her son, appellee’s decedent. Upon her son’s death appellant went to the bank and learned for the first time that all of the money in the joint savings account had been withdrawn by her son prior to his death. Although an estate was opened in California with the widow of the son as executrix an estate was opened in Lake County, Indiana, since the son had title to real estate there. Margaret Glissman, decedent’s sister and daughter of appellant, was made executrix of the estate in Indiana. After the sale of the real estate by appellee as executrix, about two years after the estate was opened, appellant filed in the Lake Superior Court what she designated, “Petition for Order and Authority to Pay Claim.” In addition to the above facts she alleged that “immediately upon appointihent of Margaret Glissman, as Executrix ■ herein by this [¶] onorable Court, your petitioner made a claim and demand upon said Executrix for .the payment of. said moneys' due her, as aforesaid and that said Executrix then- acknowledged said indebtedness of Lyle Culbert Ropp, as due and owing and agreed to pay same, or as much thereof as the assets of the estate would permit or would enable her to, as soon as the real estate of the decedent herein or his interest therein, is sold and the proceeds of sale are received by the Executrix herein, without the necessity of filing of formal claim therefor, which was considered by the Executrix unnecessary, under the circumstances.”

For the purpose of this opinion we deem it .unnecessary to set forth a lengthy rendition of the evidence. -Suffice to state that it shows that the appellee, as executrix, did, during the six months statutory period for filing claims, tell appellant that the debt was owed her, that it was just and would be paid when the estate received the proceeds from the sale of the real estate. There was also evidence from which the trial court could have found that, in reliance upon this information, the appellant did not file a formal claim prior to the petition referred to above. There is no dispute regarding the fact that no written claim was filed nor was the claim paid during the six months’ period after the appointment of the executrix and publication of notice thereof to creditors as provided by statute for such filing or payment. There is also no dispute that the petition which is the subject of this suit was filed many months after the statutory period had expired.

The court denied appellee’s motion to strike and overruled appellee’s demurrer. Although the record discloses no further pleadings the cause was tried by the court without a jury, and the trial court found against appellant on her petition and entered judgment that appellant “take nothing by her petition against the estate of Lyle Culbert Ropp, ■. . .”

Appellant’s motion for new trial was overruled, and such action is assigned as error on this appeal. The only proper specification of the motion for new trial is that the decision of the trial court is contrary to law.

The section of our Probate Code, Acts 1953, ch. 112, § 1401, p. 295, § 7-801 (a), Burns’ 1953 Replacement, pertinent to the issues in this appeal, provides as follows:

“All claims against a decedent’s estate, other than expense of administration and claims of the United States, and of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent, unless filed with the court in which such estate is being administered within six (6) months, after the date of the first published notice to creditors.”

We are not here concerned with the 1961 amendment to the above Act, nor does it affect the provision quoted above.

In 1 Grimes, Henry’s Probate Law and Practice, ch. 14, § 3, p. 440 (6th Ed. 1954), we find the following statement:

“The Indiana statute follows the great weight of authority making the nonclaim statute an absolute bar. It would appear that the Indiana theory is that all claims against an individual are buried with him except those that are filed within the time provided by the nonclaim statutes.”

Concerning that part of Acts 1953, ch. 112, § 1402, § 7-802, Bums’ 1953 Replacement, pertinent to this opinion, Professor Grimes, at page 394, 1 Henry’s Probate Law and Practice, ch. 13, § 1 (6th Ed. 1954), states:

“The statute now forbids the bringing of an action in the ordinary form against an executor or administrator, either personally or in his representative capacity, on a claim due from his decedent, and all claims against a decedent’s estate not filed as required by this statute, unless the claim falls within the exceptions, are barred. There is now no other method of conferring upon a court jurisdiction of such claims, except they be filed and placed by the clerk upon the appearance docket, and if not allowed they must be transferred to the issue docket for trial.”

Claims against an estate can only be enforced in the manner provided by statute. Beasley’s Estate v. Rauch, Rec. (1937), 104 Ind. App. 312, 318, 11 N. E. 2d 60; Barnum v. Rallihan (1916), 63 Ind. App. 349, 363, 112 N. E. 561; Doddridge, Ex., v. Doddridge (1900), 24 Ind. App. 60, 62, 56 N. E. 112.

There are decisions of our Supreme and Appellate Courts which state or indicate that “just claims may be paid by an executor or administrator although not filed and allowed. . . .” Baker v. Happ (1944), 114 Ind. App. 591, 598, 54 N. E. 2d 123; Swift, Administrator v. Harley et al. (1898), 20 Ind. App. 614, 620, 49 N. E. 1069; Wysong, Executor, etc. v. Nealis et al. (1895), 13 Ind. App. 165, 174, 41 N. E. 388; Chase et al. v. Beeson, Administrator, et al. (1883), 92 Ind. 61, 64.

From a careful reading of these decisions we find that they were all decided under prior statutes and, in addition, can be distinguished on facts involved. In addition to the distinguishing features we are of the opinion that the law on this issue is now settled in Indiana and that a claim not filed or paid within the time and in the manner provided by the statute is barred. This was settled by the decision of this court in Donnella, Admrx. v. Crady (1963), 135 Ind. App. 60, 185 N. E. 2d 623 (Transfer denied, 191 N. E. 2d 499). In the Donnella case Judge Cooper stated, at pages 63, 64 of 135 Ind. App., page 625 of 185 N. E. 2d, as follows:

“The rule of waiver or estoppel has no application to a nonclaim statute. As pointed out above, the time element in a nonclaim statute is a part of the right of action itself and is not a defense. Such statutes are not extended by the disability, fraud or misconduct of the parties. The time to act cannot be waived by the parties or lengthened by the court. Unless the claim is filed or the action thereon brought within the time prescribed by said statute, any right of action then existing becomes unenforceable and the claim or action is forever barred.”

In the Donnella case the appellee contended that a fraud was perpetrated upon the attorneys for appellee by the attorney for the personal representative in that the .claim had been forwarded to the attorney for the personal representative of decedent within the statutory period upon the representation that the attorney for the personal representative would immediately file said claim. In holding that even if true such promise could not bind the estate and the breach of such promise could not extend the time for filing the claim, this court further stated at pages 64-65 of 135 Ind. App., page 625 of 185 N. E. 2d, as follows :

“As heretofore pointed out, the applicable statute is a non-claim statute and not a statute of limitation and cannot under any circumstances be extended beyond the time specified in the statute.” See also: Roberts v. Spencer, Executor (1887), 112 Ind. 85, 90, 13 N. E. 129.

There is some contention by appellant that this claim was “allowed” by the actions and statements of the executrix to appellant and, therefore, can be paid pursuant to Acts 1953, ch. 112, § 1419, § 7-819 (c), Burns’ 1953 Repl. In our opinion this section permits the personal representative to pay, upon the expiration of six months after the date of the first published notice to creditors, only those claims which have theretofore been allowed in accordance with the provisions of this code.

Acts 1953, ch. 112, § 1410, § 7-810, Burns’ 1953 Repl., provides the method by which the personal representatives shall allow, or disallow, claims. No provision is made for oral allowance or disallowance. We are not here concerned with the paying of claims within the six months’ period where none was filed. It is our opinion that the methods for filing and paying claims, as well as allowing and disallowing claims, provided by our Probate Code are exclusive and must be followed.

“Since the statute requires that the clerk keep a record showing the filing of all claims against estates and of the allowance or disallowance of the same, and requires that the action of the executor or administrator in allowing or disallowing all claims be in writing, we hold that the allowance of a claim must be proven by the record, and that when the record does not show an allowance that the intention of the administrator to allow the claim cannot be proven by oral testimony.” Price v. Engle (1922), 77 Ind. App. 439, 447, 133 N. E. 755,

No question has been presented to us concerning appellant’s legal right to the money alleged to be due her or the manner she has chosen to recover it. Although appellee filed a motion to strike appellant’s petition as improper the overruling of such motion is not an issue in this appeal.

We are of the opinion that the judgment of the trial court should be affirmed.

Judgment affirmed.

Carson, C. J. and Cooper, J., concur.

Prime, J., dissents with opinion.