186 P. 693 | Mont. | 1920
delivered the opinion of the court.
On August 14, 1906, Rachel E. Williams, as administratrix of the estate of Henry Williams, deceased, filed in the district court of Silver Bow county her fourth annual report and account, in which she recited, among other things: “Aug. 12th. By amount due E. N. Harwood, for services and counsel as attorney, rendered on behalf of the estate of Henry Williams, in [cases pending, etc.] from Aug. 12th, 1905, to Aug. 12th, 1906, subject to allowance of the above-entitled court, Voucher No. 763 ......$1,800.00.” The account was finally submitted to the court on February 5, 1906, and by the court taken under advisement. On March 3, Rachel E. Williams died, and thereafter the court rendered its decree settling and allowing the said account, and caused the decree to be entered nunc pro tunc
On May 16, 1916, the defendant, Sibyl Scott, was appointed administratrix of the estate of Rachel E. Williams, and on October 10, 1916, being within the time allowed by law, Harwood filed a claim with said administratrix against the estate of Rachel E. Williams, verified by himself by affidavit conforming to the statutory requirements, which claim recited: “For the principal amount allowed to said E. N. Harwood by decree and order of the above entitled court, as entered Feb. 18th, 1906, a copy of which is hereto attached, for legal services rendered by him for and on behalf of the said Rachel E. Williams, as administratrix of the estate of Henry Williams, deceased, prior to the said date, for which she received credit in her account as administratrix, approved and allowed by the court, but said sum and no part thereof has been paid to the said E. N. Harwood......$1,800.00.” For interest on the principal sum; for $500 for services from August 12, 1906, to the date of the death, of said Rachel E. Williams, rendered for the estate, and an additional claim for $500 for professional services rendered said Rachel E. Williams personally, during the same period, with interest on each of the latter sums claimed.
This claim being deemed disallowed, Harwood commenced action within three months, stating three separate causes of action, the first for the $1,800 with interest; the second for $500 with interest; and the third for $500 with interest.
A general demurrer was interposed and overruled; whereupon an answer was filed, denying generally the allegations of the complaint, and pleading, as a special defense, that all the
On the trial, the court excluded all evidence as to the first cause of action, and, finally, by order, dismissed the first cause of action, on the ground and for the reason that “the claim alleged in the complaint is different from the claim filed with the administratrix; that the claim filed with the administratrix was based on an order or decree of court; that the claimant assumed that it was a judgment in his favor and acted accordingly. * * * That the claim sued upon is not a claim on a judgment, but upon an express contract for services rendered.” The parties thereupon proceeded to trial upon the second and third causes of action, resulting in verdict for plaintiff. Plaintiff appeals from that portion of the judgment dismissing his first cause of action.
The charging part of the first cause of action stated as follows: “3. That during said period of time from the twelfth day of August, 1905, to the twelfth day of August, 1906, plaintiff, at the special instance and request of said Rachel E. Williams, as said administratrix and under employment by her as her attorney and counselor at law as administratrix, rendered and performed professional legal services and counsel * * * in and about matters and things appertaining to said estate * * * , mentioned in the fourth annual account and report of said * * # administratrix * * * and mentioned in the decree of said court thereafter duly made * * * , a copy of which * * * marked Exhibit‘A’.is hereto annexed as a part hereof.
“4. That * * * said Rachel E. Williams promised and agreed1 to pay plaintiff the sum of $1,800, or whatever portion thereof said court * * * found to be reasonable and just * * * at the time said court by its decree settled and approved said account. * * * And said Rachel E. Williams stated in her said account that there was due plaintiff the sum of $1,800 for said legal services. # * * .
That, by said agreement and the order and decree of the court, the said sum became due and payable to plaintiff from Rachel E. Williams, and that no part thereof has been paid.
The respondent contends: (1) That plaintiff was incompetent, under sections 7891, 7892, Revised Codes, to testify, and therefore incompetent to verify his claim, and the claim as presented was therefore as though not verified and invalid. (2) That the claim sued upon was not the claim presented to the administratrix, and therefore the judgment of the court in dismissing the case as to the first cause of action was correct.
1. With reference to counsel’s first contention, he has
2. In upholding the action of the trial court, dismissing the first cause of action, it is claimed by the respondent that the presentment was what was erroneously assumed to be of a judgment in favor of the claimant, while the suit was upon an account stated or for the reasonable value of the services rendered, and relies upon the following cases: Brown v. Daly, 33 Mont. 523, 84 Pac. 883; Vanderpool v. Vanderpool, 48 Mont. 448, 138 Pac. 772; Barthe v. Rogers, 127 Cal. 52, 59 Pac. 310; Lichtenberg v. McGlynn, 107 Cal. 45, 38 Pac. 541; and Stockton Savings Bank v. McCown, 170 Cal. 600, 150 Pac. 985. We think, however, that a careful examination of these cases and
It is unquestionably the law that the holder of a claim against an estate must present it to the administrator within the time
In Brown v. Daly, plaintiff and his wife held a joint contract. Each presented a claim to the administrator for a sum alleged to be due, being one-half of the amount that would have been due on the joint contract. They thereafter sued jointly on the entire contract. The court held that “where a promise is made to two or more persons jointly, all obligees must unite as plaintiffs in an action for the breach thereof, as the cause of action in such cases is joint only” (15 Ency. Pl. & Pr. 528, and cases cited); that the claim must be presented and rejected, and claimant may then bring suit upon the claim. The court then proceeds: “What claim? It goes without saying that it is the identical claim which was presented; otherwise the law would be a dead letter. If a party may present to the executor of an estate a claim founded upon the breach of a several contract, and upon its disallowance maintain an action against the estate for a breach of a joint contract, without presenting any claim founded upon such breach, the statute would become at once of no efficacy whatever and its purpose would be circumvented.”
In the Vanderpool Case, the claim presented was based upon an open account for money loaned; the suit was brought upon a promissory note.
Each ease must be determined1 on its own peculiar set of
In the case of Hamilton v. Blakeney, cited above, plaintiff had presented to the administrator a claim for services as attorney in several cases, merely giving, in the claim, the title of the case and the amount of attorney’s fees charged; in his complaint and second cause of action, plaintiff sued as upon an express contract for services. It was urged on behalf of defendant that the claim presented was a statement of an open account, on quantum meruit, and that the action was brought on an express contract, and that such action was a departure from the claim presented. The court, after reviewing the cases cited in support of the contention, disposed of the matter as follows: “It is true that in an action against the estate of a decedent, it is necessary for the plaintiff to show that the claim has been properly presented to the administrator or executor of said estate and rejected, and that the recovery must be upon the same causes of action as were set up in the claim. In Ross,
Testing the claim of appellant and the recitals of his first
The chief objection to the claim is as to the showing made of the nature of the demand. The respondent interprets the claim, as to the first cause of action, as though it read: “I have a judgment for the sum of $1,800, and interest at the legal rate of ‘allowed by said decree’ in the sum of $1,392,” and the court,
The complaint declares on the same contract set up in the claim presented, recites the making, filing and presentation of her account to the court, and the order and decree of the court approving and allowing the said amount of $1,800 to the administratrix for the services so rendered by appellant. Appellant attached, not only to the claim, but to the complaint a copy of the account and decree of settlement and allowance, as a part of each instrument; it was one and the same claim, to-wit, the claim of appellant for the sum of $1,800 alleged to be due for services to Rachel E. Williams, as administratrix, for the period named, allowed and approved by the court. ‘
While there is a difference in the wording of the claim and the recitals of the first cause of action, the difference is one merely of phraseology and not of substance, and we do not consider that there is such a departure as to constitute a fatal variance.
That portion of the judgment of the trial court dismissing said first cause of action is reversed, and the cause remanded for the proper trial of the said cause of action.
Reversed and remanded.
Rehearing denied January 23, 1920.
