On а hearing upon petition for settlement of the final account of the administratrix, Rowena Heusner, one of the heirs of the decedent, filed her objections to the allowance of a creditor’s claim on the ground that the *217 claim had not been filed within six months after publication of notice to creditors. The claim had been approved by the administratrix and by the probate court. On thе hearing the court overruled all objections and ordered the claim paid in full.
In her appeal from this order the appellant raises three grounds for a reversal; (1) That the claim was barred by the statute of limitations; (2) that the defense of estoppel is not available to respondent; (3) that the creditor was an incompetent witness under section 1880, subdivision 3, of the Code of Civil Procedure.
(1) Section 707 of the Probate Code provides: “All claims arising upon contract . . . must be filed or presented within the time limited in the notice . . . and any claim not so filed or presented is barred forever. ’ ’ This is сlear and precise language which calls for no qualification or judicial interpretation. The facts here are undisputed. The notice to creditors required that claims be presentеd not later than January 14, 1951. The claim in dispute was not filed until July 19, 1951—more than six months too late. Section 708 of the Probate Code provides that ‘ ‘ [n] o claim which is barred by the statute of limitations shall be allowed оr approved by the executor or administrator, or by the judge. ’ ’
The allowance and approval of the claim are both indefensible. In the relatively early case of
Morrow
v.
Barker,
In 1930, speaking for this court, Justiсe Sturtevant (who always believed that the Legislature and not the courts should be permitted to enact the law) said, in his usual terse and convincing manner in
People
v.
Osgood,
Both of these cases follow the law as written and, as was said in thе Morrow ease, it is not for the courts “to make an exception to relieve from hardship.” The rule was followed by this court in the recent case of
Estate of Erwin,
‘ ‘ This argument overlooks the facts that the administratrix occupies a fiduciary duty to the heirs to protect their legal rights in the estate
(Larrabee
v.
Tracy, 21
Cal.2d 645, 650 [
“It is the plain duty of both the administratrix and the probate judge to protect the estate against the collection of a debt which the statutоry law expressly declares to be ‘barred forever.’ ”
Another similarity between the two cases should be noted. In the Erwin case the administratrix succeeded to one-eighth of the estate. The remаining seven-eighths went to heirs residing in western Germany. Here the administratrix was entitled to one-eighteenth of the estate. The remaining seventeen-eighteenths went to other heirs who would suffer the loss by her failure tо properly represent them. That is not a commendable exercise of the trusteeship.
*219 (2) Respondent assumes to answer this difficulty by arguing that the administratrix is estopped from raising the statute.
Assuming the prоpriety of the defense of estoppel the facts here fail to prove it. The time for filing claims expired on January 14, 1951. The claim was filed six months after this expiration date. In an attempt to рrove an estoppel respondent and the administratrix testified to conversations between them. The claimant’s testimony fixes all of these conversations as having occurred after the timе for filing claims had expired. The full extent of these conversations was that the administratrix would endeavor to overlook the statute and approve an admittedly illegal claim. The finding that there was an estoppel is not supported by evidence of any type.
The doctrine of estoppel is clearly defined in section 1962, subdivision 3 of the Code of Civil Procedure, reading as follows: “Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigatiоn arising out of such declaration, act, or omission, be permitted to falsify it.”
Because of the adverse finding, it is proper to cite the evidence somewhat at length. Bearing in mind that the notice tо creditors was completed August 11, 1950, that the last day to file claims was January 14, 1951, and that the claim herein was filed on July 19, 1951, it becomes important to look at the evidence to see what “declarаtion, act, or omission” of the administratrix led the claimant to “believe a particular thing true, and to act upon such belief.” Manifestly her only act upon which a plea of estoppel сould be based would be one that led him to believe that he did not need to file his claim within the statutory period.
All the evidence on this subject is found in the testimony of the claimant and of the administratrix. The claimant testified: “Q. You stated that you had conversations with Wilma Harris? A. Yes. Q. Have you had one conversation or several? A. Several. Q. Do you recall when the first conversation took place? A. I can’t recall the exact time, but it shortly after the estate was settled or passed on by the court up in Sacramento. Q. When you speak of the matter in Sacramento, that was a contest uр there ? A. Yes.
“Mr. White: I will stipulate that the judgment was entered on March 20, 1951.
*220 “Mr. Winkler: Q. With that date in mind, can you tell the Court now about when this first conversation was with Mrs. Harris ? A. I can’t recall exactly; I would say probably some time—the case was up there January 9—I would say around May or June or July—I can’t remember exactly .... Q. Did you ever have any other conversations with her—with Mrs. Harris ? A. Later she called me . on phone and told me- Q. When did she call you? A. Up at the home—I can’t recall the date. Q. Shortly after the conversation you have just related? A. Yes, a month or so. Q. Just after you had come back from Sacramentо? A. Quite a long time after—after she told me to just wait, that I would be taken care of and the money would be paid when the estate was settled.
“Q. With reference to that time when you were in Sacramento, how long was it after that time when you had this conversation with Mrs. Harris? A; As near as I can tell— I can’t tell whether it was two months or three months— quite some time, a couple or three months, anyway, I would think.” (N.B. It was stipulаted that the Sacramento judgment was entered on March 20, 1951. The conversations which the witness testified to occurred after that date.)
The witness Harris testified as follows: “Q. Did you ever have any convеrsation with Mr. Hansell about presenting these claims to the estate? A. Not until shortly before he did present it, and then I realized that it was beyond my power to do anything for him.” (N.B. The claim was presented July 19, 1951.)
“Q. ... do you rеcall that conversation? A. It was the day that Mr. Mundt called me and told me that we had won the case, and I called Mr. Hansell and told him that we had won the case and I hoped we would be able to рay him his money, or some money. Q. Do you recall when that was that Mr. Mundt called you ? A. That must have been either May or June—I don’t have the exact dates. Q. What year ? A. 1951.”
The same witness testified to several conversations with the claimant and some of the relatives of the deceased in which the view was expressed that the claimant should be paid something out of the estate. These conversаtions all occurred during the trial of a case in Sacramento. These conversations may have taken place a few days before the time for filing claims had expired. But in none of them, аnd in no other evidence cited by respondent, was anything said *221 or done which would have led claimant to believe that it was not necessary for him to file the claim within the statutory time.
(3) Appellant arguеs that the claim is barred by the two-year statute of limitations (it is based on personal checks given the deceased over a period running from 1930 to 1947); and also that it was error to permit the claimant to testify to the transaction because of section 1880, subdivision 3 of the Code of Civil Procedure. Since the order must be reversed for the reasons stated it would serve no purpose to discuss either point.
Order reversed with costs to appellant.
Goodell, J., and Dooling, J., concurred.