Pacific States Savings, Loan & Building Co. v. Fox

By the Court,

Belknap, J.:

Respondent, a corporation created by the laws of the State of California, petitioned the district court to file its claim against the estate of decedent after the expiration of the statutory time for the publication of the notice to creditors barring unpresented claims, upon the ground that it had no notice of the appointment of appellant as .administratrix, and that the final account had not been filed. Affidavits in support of the motion were also filed, and upon the showing made an order was entered allowing respondent to file its claim. The administratrix appeals from the order, claiming that the publication of the statutory notice to creditors of her appointment, and giving them three months in which to present their claims, was summons, and, as the petitioner is a California corporation with no agent in this state upon whom process could be served, the secretary of state, under the statute of 1889 (Stats. 1889, p. 47), was its agent for that purpose, and that the publication of the summons was service upon him, and is conclusive upon the question of notice.

The act to regulate the settlement of estates of deceased persons, as amended at the session of 1899, and under which the court acted, provides:

“Sec. 107. Every executor or administrator shall immediately after his appointment cause to be published in some newspaper published in the county, if there be one, if not, then in such newspaper as may be designated by the court or judge, and post copies thereof in three public places of the county, a notice of his appointment as such executor or administrator. Such notice shall be properly entitled of court and cause, specifying the date of appointment, the name of deceased, and shall be dated and officially signed by the executor or administrator, and shall direct that all persons having claims against the estate are, required to file the same, with the proper vouchers and statutory affidavits attached, with the clerk of the court within three months from the date of the first publication of the notice. Such notice shall be published for at least once a week for four weeks. After the notice shall have been given as above required, a copy thereof, with the affidavit of publication and posting, shall be filed.

“ Sec. 108. All persons having claims against the deceased must, within three months after the first publication of the notice specified in the preceding section, file the same with the necessary vouchers with the clerk of the court, who shall file and register each claim. If a claim be not filed with the clerk within three months after the first publication of said notice, it shall be forever barred; provided, that when it shall be made to appear by the affidavit of the claimant, or by other proof, that he had no notice, as provided in this act, to the satisfaction of the court or judge, it may be filed at any time before the filing of the final account.” (Stats. 1899, pp. 110, 111.)

In considering the question whether the notice mentioned in the above sections is summons or not, we must not overlook the provisions of section 108, to the effect “that, when it shall be made to appear by the affidavit of the claimant, or other proof that he had no notice,” the court may order his claim filed. This provision violates no constitutional requirement, and requires no judicial construction. We are not at liberty to evade plainly expressed language, and must enforce the provision according to its terms. If the contentions of appellant are to prevail, no relief could be given under section 108, for the publication of the notice itself would give the claimant notice, and estop him from asserting the contrary. This would result in nullifying a beneficial provision, and creating contradictions not contemplated by the legislature.

Upon the merits, the order is fully supported by the proofs, and is affirmed.