Printz-Biederman Co. v. Torgeson ( 1918 )

POD-LEY, J.

T'h-i-s action is against the defendant as administratrix of the estate o-f -a deceased) person. Said decedent died on the 20th -day of October, 1912. Defendant was appointed -administratrix of decedent’s estate on the ii-tih day o-f November, 1912, and on the 29th diay of said month she published notice- to' creditors, limiting the time; for the- presentation of claims against the said estate to six -months from' said1 last-mentioned' date. The plaintiff -is- a foreign- corporation-, and had no place ¡o-f business, nor does -it appear to- have had any agent o-r representative, in this state. Plaintiff knew, as early as about the 14th day of November, 1912, of the death of the said decedent and of the appointment of defendant as administratrix of the estate. On or about the 7th day of December, 1912, plaintiff forwiarded to- defendant an unverified statement of the account involved! in this case. On the 13th day of said, month defendant wrote to plaintiff, advising it to forward a certified statement of the account, .and- on December 19th plaintiff did forward! to defendant a statement of s-ai-di account, the correctness- of -which was1 certified to by an officer of plaintiff -company, but -such statement was -not sworn to. No -attention appears to have been given to this- statement, and some time after the 22d day of July, 1913, and after the expiration of the time for'filing claims against the estate, plaintiff forwarded another statement of said' account. This statement purports to 'have been sworn; to ibefore a notary public; but the affidavit did not comply with the law, and the notary before whom it was sworn to ¡failed to attach his notarial seal. Nothing further appears to have 'been done in the matter until the 31st day of January, 1914, when plaintiff presented an itemized statement, properly signed and verified' by the affidavit of an officer of the plaintiff -company. This affidavit contained matter sufficient, under the provisions of section. 170, Probate ■Code, to excuse a nonresident for not presenting his, claim within the time' limited in the published notice to creditors, provided1 such -claim bad nlcit been previously presentad!. This claim was rejected 'by the -defendant, and this action- was commence’d within three months thereafter.

On the trial it was made to appear, by undisputed evidence, that plaintiff was not in this -state during the publication of the notice to creditors, and that it had no knowledge of the publication thereof. The trial -court held that, -plaintiff not having commenced its action within the statutory period after the first statement was presented, .the -court was without authority to entertain the action, and' entered judgment dismissing the action. From, such judgment plaintiff appeals.

Section 170, Probate Code, provides1 that, if a claim he not presented to the .administrator within the time limited in the published notice, it is forever barred, unless it he made to appear by an affidavit on behalf 'of the claimant that the claimant had) no notice of the time limited, ¡because of his absence from the state. In such case ’the claim may he presented ait any time -before the ¡decree -of distribution is entered, and it .is appellant’s contention ¡that, having been out of the state, and not having had! notice of the time limited in the -notice to creditors, it has a right to present its- claim at any time before the entry io¡f -decree of final -distribution, an-d that the claim presented! by it on the 31st day of January, 1914, is a sufficient -basis1 for this action. But section 170 'has no application to the facts in this cas-e. It will be noted that this section applies only to claim-s “not presented within the time limited in the notice.” But the claim1 involved in this case had ¡been presented' to the -adinind'stratrix at least twice before the expiration tof the time for that purpose. The fact that the claim, as presented on these occasions was not in proper form, and not properly verified, is not material. Appellant had' the right to amend his- claim, and' present it again and in'proper form, so long as he presented it within the time fixed in the notice. F. A. Patrick & Co. v. Austin, 20 N. D. 261, 127 N. W. 109; Westbay v. Gray, 116 Cal. 660, 48 Pac. 800. But, having been presented within the time fixed in the notice, it does not fall within the exception made in section 170, although the claimant may have been out of the state anidl without notice of the time fixed for the presentation of claims until after that time had elapsed. Appellant, not having complied with the provisions of sections 170 and 171, Probate Codfe, in the preparation and presentation of its claim, is barred by the provisions of those sections,, and' the action was properly dismissed.

The judgment and order appealed from are affirmed.