Gray Realty Co. v. Robinson , 111 Utah 521 ( 1947 )

I dissent.

Respondent's claim was based on an open account in which the court found the last charge therein was made on March 6, 1939. Appellant pleaded this claim was barred by the provision of Sec. 104-2-38 (unless otherwise stated all references herein to sections refer to U.C.A. 1943). So far as is pertinent here such section reads:

"* * * If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced against his representatives after the expiration of that time and within one year after the issue of letters testamentary or of administration."

It will be noted that this action was brought more than one year after the appointment of the administratrix and also more than four years after the last charge entered in the open account. Under the provisions of Sec. 104-2-23, an action on an open account must be brought within four years after the last charge or the last payment is received. It is apparent therefore that the general statute of limitations had run before the commencement of the suit.

If the above were the only statutes on limitations with which we need be concerned in determining the question involved herein it would be a simple matter to hold that in accordance with the plain wording of those statutes respondent's action was barred. However, since this involves a claim against a decedent's estate we must determine what effect, if any, the provisions of the probate code relating to claims against an estate have on these general statutes of limitation.

Section 102-9-11 bars the holder of any claim against an estate, other than a mortgage or lien, from maintaining an action thereon without first presenting such claim to the executor or administrator. Section 102-9-1 requires the administrator or executor to publish notice to creditors to present their claims within a specified time, immediately after his appointment and under Section 102-9-2, the time within which such claims must be presented, unless otherwise ordered by the court, is fixed at four months after publication of the first notice, where the value of the estate exceeds $10,000, otherwise within two months. Section 102-9-4 provides that all claims arising upon contract, must be presented within the time limited in the notice or be forever barred. Section 102-9-6 requires the administrator or executor to endorse on all claims presented to him his allowance or rejection thereof, and to present to the judge all such claims as he allows, who must also endorse thereon his allowance or rejection of such claims. No time is stated within which this must be done, but in case either the executor or administrator or the judge fails to so endorse the claims within ten days after it is presented then the claimant may at his option deem the claim to be rejected. Although it is not expressly so stated in the statute, the effect of this provision would be to allow the claimant to maintain a suit thereon at the expiration of the ten day period unless the claim has been allowed by the executor or administrator and the judge. Under Section 102-9-9, when a claim is rejected, and a notice thereof filed with the clerk, the holder of such claim which is then due must bring suit thereon within three months thereafter, or if the claim is not then due, within two months after it becomes due, or the claim will be forever barred. Under Section 102-9-15, if the executor or administrator and the judge approves the claim it has the same effect as a judgment against the administrator or executor, and must be paid in the course of administration of the estate, and under Section 102-9-12 after such claim is approved it is not affected by the statutes of limitation.

The above provisions of the probate code present an orderly procedure for the determination and establishment of common claims against the estate. There is ample provision for barring all such claims as are not presented within the time prescribed, and for barring action on such claims as are presented in time but are rejected where suit is not commenced within the prescribed period. If we consider these statutes of the probate code alone, then this action was not barred because it was commenced within three months after the notice of rejection of part of the claim was filed with the clerk. The question with which we are confronted is: Does an action on a claim, which must be presented to an administrator or executor of an estate, not only have to be commenced within the time required by the probate code, but also within the time required by the general statute of limitations, particularly Sec. 104-2-38? In other words, did the legislature intend by these two separate sets of statutes of limitations, that common claims might be barred by either of them whichever expired first? Or did it intend that the general statute of limitations should apply only to claims which do not have to be presented to the administrator or executor, and that such claims which must be so presented are governed by the provisions of the probate code?

In determining the legislative intent we must give effect to all of the provisions of the statutes. Sec. 104-2-38 is a part of the general statutes of limitations, and is not a part of the probate code. If a suit on a common claim against an estate, which must be presented to the executor or administrator, must also be commenced within the time prescribed by that section, then in many cases such suits will have to be commenced before the notice to creditors has been published, and in many more cases before such claims have been acted upon by the administrator or executor. For although the statute provides that the administrator or executor must publish notice to creditors immediately after his appointment often this is not actually done until after the general statute of limitations period has expired. Also, after notice has been published and the claim has been presented administrators often do not act on them immediately, and in many cases the general statute of limitations will have run in the meantime. The statute expressely provides that suit on this kind of a claim may not be commenced without first presenting it to the executor or administrator. It is true that the claim may be presented before notice to creditors is published, and that suit may be commenced thereon if it is not approved within ten days thereafter by the administrator or executor and the court. It is thus possible for a claimant, who knows how, to bring his suit within the time prescribed by both of these sets of statutes. But it would seem improbable that the legislature would provide a complete set of rules for the determining of claims against the estate, and for the obvious purpose of preventing suits against the estate would provide that a claim which is allowed by the administrator or executor and the judge would have the same effect as a judgment against the administrator, and then by another statute require, in many instances that suit must be commenced on such claim before the executor or administrator or the judge has ever acted thereon. The purpose of the notice to creditors would seem to be to give the creditors notice of the time within which they must present their claims. The fact that such notice is published stating definitely the time within which a claim must be presented would indicate to the ordinary person that he would be safe in waiting for such notice and presenting his claim within the time therein stated. I am therefore of the opinion that in enacting these two sets of statutes the legislature intended that the one would govern only claims which are not required to be presented and the other would control claims which must be presented to the administrator or executor before the commencement of suit thereon.

As thus construed effect is given to every provision of these statutes, an orderly and speedy method is provided for determining the validity of claims against an estate. Under such construction no one can be misled by what appears at first glance to be conflicting provisions. And as so construed these statutes are made just and workable, which of itself tends to indicate that such was the legislative intent. Union Portland Cement Co. v. State Tax Commission, 110 Utah 135, 170 P.2d 165. It is believed that this has been the universal construction which has been placed on these statutes by both courts and lawyers in this state since they were enacted many years ago.

The Minnesota court in determining a similar question in the case of In re Anderson's Estate, 200 Minn. 470, 274 N.W. 621,622, 112 A.L.R. 287, held that the general statutes of limitation do not operate to bar the filing of claims in probate proceeding. The court here said:

"The probate code is complete in itself in so far as it fixes the time within which claims against estates may be filed or barred. * * *"

It is interesting to note that Mason's Minn. St. 1927, Sec. 9203, which was Minnesota's general statute of limitation dealing with suits brought by or against representatives of estates, expressly provides that it applies to those cases in which it is not necessary to present claims in probate proceedings. This statute was apparently meant to cover the same situations covered by our Sec. 104-2-38, which does not expressly provide that it apply only to cases where no claims need be presented in probate proceedings but which provision we believe is inherent in it if we are to give effect to it and also to the provisions of the Probate Code on the times when claims may be presented and action brought thereon.

The prevailing opinion says:

"The plaintiff having permitted its cause of action to be barred by both Sections 104-2-38 and 104-2-23, cannot succeed in this action unless there is a provision in the Probate Code that would revive the claim."

Under my theory of these sections of our statute there can be no question of reviving a claim that has once been barred by either of those sections of the statute. That theory is that those sections of the statute have no application to a case where a claim must be presented to the personal representative in a probate proceeding, that as to such claims the provisions of the probate code superseded the provisions of the regular statute of limitations, and therefore upon the death of the decedent where the action had not already been barred the only way it could be barred would be by the provisions of the probate code.

I concur with the conclusion in the prevailing opinion that under Section 104-2-38, U.C.A. 1943, the intention was to extend the regular statute of limitations period rather than shorten it. In fact, I think that section deals only with a period after the expiration of the regular statute of limitations period, and expressly provides in the clearest kind of language that, "an action may be commenced against" the representatives of a deceased person, "after the expiration of" the time limited for the commencement thereof and "within one year after the issue of letters," and that any other construction would do violence to the express provisions thereof.

In this section no provision is made with respect to the commencement of an action prior to the expiration of the regular statute of limitations period, nor is any mention made thereof whatsoever. It deals exclusively with the commencement of an action after the expiration of that period. Since it neither directly nor by implication shortens that period it leaves it just as it was before and therefore in all cases where the deceased dies before the expiration of that period his representative may be sued within that period.

This statute expressly provides that an action may be commenced against the representative of the deceased after (not within) the regular statute of limitations period, and within one year after the issuance of letters. How could that statute possibly be construed to prohibit the commencement of an action after the expiration of the regular statute of limitations period, in the face of this positive provision that such "an action may be commenced after the expiration of that time and within one year after the issue of letters?" In order to come within the express terms of that statute the action must be commenced both after the expiration of the regular statute of limitations period and also within one year after the issue of letters. The only possible time that an action could be brought under the express terms of this statute is after the regular statute of limitations period has expired and before one year had expired after the issuance of letters. This section would have application only in cases where the expiration of one year after the issuance of letters, occurs after the expiration of the regular statute of limitations period. Thus, in cases where the expiration of the one year period after the issuance of letters occurs before the expiration of the regular statute of limitations period the case would be governed entirely by the regular statute of limitations, but in either event the creditor of the deceased estate would have not less than one year after the issuance of letters to bring suit, and in some cases a longer period.

I am well aware that a decision of this question is not required in order to dispose of this case. In my opinion the reasoning of this question does not in any way contribute to or govern the solution of the question here presented, and that what we here say on this question is merely dictum and not binding on any one in future cases. I express my opinion on this question only because of the fact that the prevailing opinion seems to create the impression that there is some ambiguity in the language of this statute on this question, and I deem it appropriate to here point out that no such ambiguity exists.