Burnett v. Neraal , 67 Mont. 189 ( 1923 )

MR. CHIEF JUSTICE CALLAWAY

delivered tbe opinion of tbe court.

While tbe estate of Glen Bisard, deceased, was in process of administration, Mary F. Burnett presented to tbe defendant, Paul 0. Neraal, as administrator of tbe estate, a duly verified claim for money alleged to be due her on an open account and also upon a promissory note. No question is made concerning tbe sufficiency of tbe claim upon tbe account. Neither tbe original nor a copy of tbe note was attached to or accompanied tbe claim as presented to tbe administrator.

In passing, we observe that tbe claim does not advise who made tbe note nor to whom it was payable, but in view of what follows inquiry as to this is immaterial. Tbe claim having been rejected, action was commenced within tbe time prescribed by statute. Upon trial tbe court entered judgment for plaintiff for the amount due on tbe open account but disallowed that claimed on tbe note for tbe reason that neither tbe original nor a copy thereof was attached to or accompanied tbe claim. Plaintiff appeals from the judgment.

Section 10174, Revised Codes of '1921, provides for tbe presentation to tbe executor or administrator of claims against an estate and specifies bow such shall be verified. It does not in terms set forth any requisite as to tbe substance or form of tbe claim to be presented, except that it does make provision that if the claim be not due when presented, or be contingent, the particulars of such claim must be stated.

Section 10177, after saying in substance that every claim allowed by the executor or administrator, and approved by the judge, must within thirty days thereafter be filed in the court and be ranked among the acknowledged debts of the estate, to be paid in due course of administration, continues: “If the claim be founded on a bond, bill, note, or other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhibited, if demanded, unless it be lost or destroyed, in which case the claimant must accompany his claim by his affidavit, containing a copy or particular description of such instrument, and stating its loss or destruction. If the claim, or any part thereof, be secured by a mortgage or other lien which has been recorded in the office of the county clerk of the county in which the land affected by it lies, it shall be sufficient to describe the mortgage or lien, and refer to the date, volume, and page of its record. If, in any case, the claimant has left an original voucher in the hands of the executor or administrator, or suffered the same to be filed in court, he may withdraw the same when a copy thereof has been already, or is then, attached to his claim. A brief description of every claim filed must be entered by the clerk in the register, showing the name of the claimant, the amount and character of the claim, rate of interest, and date of allowance.”

Sections 10174 and 10177 came into our statutes, respectively, as sections 151 and 154 of the Probate Practice Act, Revised Statutes of 1879. Section 151 became successively 2604, Codes of 1895, and 7526, Codes of 1907. With slight amendments 154 became section 2607 of the 1895 Code, and 7529 of the Codes of 1907. From the earliest days it has been necessary to accompany a claim against an estate founded upon a written instrument, with a copy of the instrument. (Bannack Laws, Art. IY, see. 15, p. 307,- Codified Stats. 1871-72, sec. 198, p. 352.) And so ever since the adoption of sections 151 and 154 in 1879, the understanding of the bench and bar has been that the original instrument being neither lost nor destroyed, either the original or a copy of the instrument must accompany the claim at the time of. its presentation to the executor or administrator. This is a sensible interpretation, and it would be unwise to adopt any other. The reason for the rule is apparent. It is for the benefit of the estate. Both the form and the substance of the written instrument should be made known to the legal representative of the estate when the claim is presented. In many cases he would be unable otherwise to pass upon the claim intelligently. That an inspection of the original might frequently become material is obvious also. That the practice above indicated has been recognized by this court is seen by the language used in Vanderpool v. Vanderpool, 48 Mont. 448, 138 Pac. 772, in which the claim as presented to the administrator and by him rejected did not have attached nor contain a copy of the note. After referring to the quoted provision of what is now section 10177, the court said: “Compliance with these provisions involves no difficulty, and a court cannot say that anything else than substantial compliance upon the part of the claimant meets the requirements.” Such is the holding of the supreme court of California upon similar statutes. (Evans v. Johnston, 115 Cal. 180, 46 Pac. 906; Stockton Savings Bank v. McCown, 170 Cal. 600, 150 Pac. 985; and see Waltermar v. Schnick’s Estate, 102 Mo. App. 133, 76 S. W. 1053; Baker v. Chittuck, 4 G. Greene (Iowa), 480.)

The judgment is affirmed.

Affirmed.

Associate Justices Cooper, Holloway, Galen and Stark concur.