DocketNumber: File 132124
Judges: Klau
Filed Date: 3/21/1963
Status: Precedential
Modified Date: 10/19/2024
This is an action in three counts, brought against the defendant individually and as executrix of her husband's estate, seeking specific performance of an agreement of her late husband to assign a patent and all rights thereto for an improvement or invention created and developed by him during the period of his employment by the plaintiff. Paragraph 9 of the first count of the complaint alleges that there was an agreement between the plaintiff and the decedent that "such improvement or invention and all patent rights relating thereto became and are the absolute property of the plaintiff; that whenever requested by the plaintiff he [the decedent] would execute any and all applications for patents, assignments and other documents relating to such improvement or invention." Similar agreements are alleged in paragraph 5 of the second count and paragraph 7 of the third count.
The plaintiff is seeking an injunction compelling the defendant, as executrix as aforesaid, to assign to the plaintiff all rights which the decedent had at the time of his death — and which the defendant, as such executrix, has succeeded to and now has — in and to such improvement or invention, and to execute and deliver to the plaintiff any and all applications, assignments and other documents necessary or appropriate to enable the plaintiff to file and prosecute applications for patents on such improvement or invention and fully to secure and enjoy its property rights therein. The complaint alleges that the defendant, by virtue of being the executrix of the decedent's estate, succeeded to and now has all rights in and to such improvement or invention and all obligations with respect thereto which the decedent *Page 448
had at the time of his death, and is the person authorized and empowered to make application for a United States patent on such improvement or invention and to assign such application as provided for by
In this memorandum, we are concerned solely with the effect of the demurrer as to the cause of action against the defendant as executrix. The defendant executrix demurs to each count of the complaint and the prayers for relief therein, on the ground that there is no allegation in any count of the complaint that the plaintiff had filed a claim with her as executrix, in accordance with §
Section
In 2 Locke Kohn, op. cit. § 474, at page 503, the general rule is stated that claims for the recovery of specific property, when the claimant asserts ownership rights superior to those of the deceased, are not within the Statute of Nonclaim and will not be barred by nonpresentation. "The reason for this is that the probate jurisdiction is concerned with the devolution at death of the property of the deceased, but is not concerned with the settlement of conflicting claims of title between the estate and third persons." And at page 504: "A claim for specific property in the hands of the administrator is deemed to be a claim ``against the administrator' but not ``against the estate;' for such property, though in the hands of the administrator, is not part of the estate and the claim for it is not a ``debt' of the estate." This is also the general rule of other jurisdictions. 21 Am. Jur. 580, Executors and Administrators, § 348; see note, 34 A.L.R. 362, 383. *Page 450
To the same effect as the foregoing is Padula v.Padula, supra, 107, wherein the court stated as follows: "The distinction between these two lines of cases is clear. Those cases cited above and others in our reports which hold that the presentation of a claim is essential involve claims which are the personal obligation of the decedent. In those cases in which the cause of action is for the recovery of or the determination of interests in specific property and therefore is at least quasi in rem and not in personam, it is not an essential prerequisite that a claim be presented. In other words the purpose of the Statute of Nonclaim is to make sure that an administrator is informed as to what claims there are which must be paid out of the estate as a whole. It is not to apprise him of what of the apparent property of his decedent is to be inventoried or what incumbrances, if any, are on that property." And see the concurring opinion of Justice O'Sullivan in the Padula case, at page 111, which states in part as follows: "I take the position that the distinction is this: claims calling for equitable relief, such as the turning over of specific property forming part of a trust estate, or for specific performance, need not be presented. Cleaveland, Hewitt
Clark, Probate Law, p. 267; McDonald v. HartfordTrust Co.,
The complaint, as against the defendant executrix, seeks only specific performance of an agreement to assign a patent. No claim for money damages is made against the defendant in her administrative capacity. It is clear that the plaintiff is *Page 451
not and was not a creditor of the decedent and is not suing as such. It is suing the defendant executrix to compel her to execute various papers necessary to perfect the plaintiff's rights in and to, and its record ownership of, specific property — the improvement or invention described in the complaint and the patent rights relating thereto — to enable the plaintiff to secure and enjoy its rights in such property. An agreement to assign an invention and patent rights is a proper subject for specific performance.New Haven Sand Blast Co. v. Dreisbach,
The relief sought is purely equitable. Even if regarded as an action in personam; see New HavenSand Blast Co. v. Dreisbach, supra, 179; in its nature it is essentially an equitable action and one which is quasi in rem. The plaintiff did not lose its rights in not presenting its claim to the defendant executrix within the time limited. See McDonald v.Hartford Trust Co.,
The case of Cone v. Dunham,
The second count of the demurrer has been withdrawn by the defendant on the agreement of the plaintiff to amend its complaint to set forth a separate count alleging a cause of action against the defendant individually for detaining or converting property belonging to the plaintiff. See 2 Locke Kohn, op. cit., p. 504.
The demurrer to the plaintiff's complaint is overruled.