*1 judgment proceedings is reversed for further consistent expressed views herein. city appeal. Plaintiff and their costs are to recover Traynor, J., McComb, J., Peters, J., Tobriner, J., Sulli C. J., van, Roth, pro tern.,* concurred. J. petitions Respondents’ rehearing for a were denied Febru printed ary read 28,1967, modified to pro J., Roth, tem.,* place Mosk, J. who
above. sat disqualified. deemed himself A. 29053. In 31, 1967.] No. Bank. Jan.
[L. al., DAVID L. SATTERFIELD et Plaintiffs and Appellants, GARMIRE, v. ALBERT F. as Executor, etc., Defendant Respondent. *Assigned the Chairman of Judicial Council. *2 Fitzgerald Fitzgerald T. Mclnnis, Focht & and William Appellants. Plaintiffs Cary, Monroe, Gray, Frye, Ames & C. M. R. Gerald Eugene L. Freeland for Defendant and Re- Schmelzer
spondent. MOSK, J. appeal Plaintiffs from a of dismissal general after a entered demurrer been sustained to their complaint seeking damages wrongful amended death and injuries capacity personal from defendant his as executor Garmire, alleged of the estate of P. Robert tortfeasor. Our task is to whether action is determine barred Probate provides Code section such claims must be presented publication to the estate within six months after the purposes notice to creditors.1 We conclude that compliance the statute have been fulfilled and technical there has defendant. waived complaint alleges July 1963, Zora Lee Satterfield, plaintiff wife David L. Satterfield and the remaining plaintiffs, mother bile killed an automo- negligence accident Garmire, caused of Robert P. represented by whose estate is the defendant. In a second *3 plaintiff of cause action David L. Satterfield seeks damages resulting personal injuries from which he in sustained the prayer accident. The general is for damages totaling $35,000 special damages unspecified for of an amount. appointed was Defendant executor the last will of Robert September 1963, P. in and the first Garmire notice to creditors September 11, published complaint was on 1963. The alleges negotiations in the same month were commenced between agent company attorney the of defendant’s insurance and the representing plaintiffs. During then negotia- who was these agent that in tions the insurance asserted event the an action liability was filed either the defendant would be admitted perfunctory or defense would be nature. At some time during negotiations offered to settle the claims $9,000. rejected, negotiations This offer was and the continued. provides part, 1Probate Oode section 707 in relevant “All . . claims . damages injuries person
for presented or death a . . must . be filed .; within the time limited in the . . notice claim not presented forever, so filed or is barred ...” Code Probate section 700 provides that the notice shall state that all to be claims are filed within publication six months after the first notice to creditors. agreed parties although Thereafter, they plaintiffs impasse, should file an action reached no delay securing to minimize the a trial in order defendant eventually complaint failed. negotiations The was date if the 15, 1963. Defendant’s answer denied lia- filed on November plaintiff the failure of bility did not assert to file but negotiations proceeded after the com- the estate. The filed, settlement was reiterated. plaint and the offer of was expired claim with the estate on period for a days pretrial filed a Bight later defendant 11, 1964. March provisions Pro- he first referred to in which statement action was 707 and maintained that the section bate Code plaintiffs a formal claim with April 2, 1964, filed barred. On complaint was filed on June estate. An amended that defendant and claims alleges facts as set forth above plaintiffs to relying upon failure of estopped from prescribed by formally present the claim within sustained a trial court 700 and 707. The sections Probate Code complaint denied leave the amended general demurrer to that a cause plaintiffs conceive “unless further amend company.” Plain- may against the be stated action complaint, and did further amend the tiffs not dismissing action. entered ruling that the trial court’s the demurrer It is clear from provisions in reliance on the of Probate Code sustained only presents effect that section 707, and the section appears face issue of substance to be decided. Since formally presented complaint that the claim was prescribed by Probate section time Code the estate within the question whether dispute limited to the 707, the is further way representative acted such as to his defendant or formally presenting delay in plaintiff’s claim. excuse allegations of the legal issue, deem the resolving the we (City Beaumont v. factually accurate. to be Cal.Rptr. (1965) 63 Cal.2d Beaumont Irr. Dist. 377].) 465,405 P.2d section 707 is intended
Probate Code to insure estate will notified or administrator be executor period of time of all claims that the within a reasonable so may expeditiously and distributed settled *4 (Harp (1873) 222, 231; legatees v. 46 heirs. Calahan Cal. Cal.App.2d 801, 141 (1956) America Hurlimann v. Bank of provides oppor- addition, it 682].) 805 P.2d [297 prior disposition to the of tunity for amicable 642 any protects of action and thus commencement the estate from (Radar litigation. expenses Rogers of needless (1957) v. 243, ; Thompson
49 249 Cal.2d P.2d v. Koeller [317 17] (1920) 476, 927]; 485 Cal. P. Preston v. Knapp [191 811]; Berlinger P. Halbert Cal. v. Cal.App.2d 6, 274].) (1954) 127 statutory requirement a claim is not satis- complaint by lawsuit, and fied service of summons way although pleadings provide do in their announce- ment the amount and nature of the claim. ease,
Other facts the instant however, suggest that the purposes section have been fulfilled and defendant has way prejudiced by in no been the circumstance that the claim formally days until 22 was not submitted after the period prescribed of the in the Probate complaint Code. The alleges that agent defendant’s insurance carried negotia approximately tions for prior two months to the time the negotiations action was filed that these were not termi until after nated expired. claims had Hence, it is clear that defendant received notice of the claim apparent before the action was It filed.2 is also avoiding purpose litigation needless has fulfilled, by agreement parties the action was filed mutual negotiations produce months two had failed to a settlement. Therefore, defendant has received all the benefits secured to by him presentation appears Probate Code section and it that formal would, of the claim in the autumn of 1963 if anything, delay expediting have caused further rather than t.3 settlemen Defendant nevertheless insists that the statute is manda- tory, precise compliance with imperative its terms is all argues circumstances. He that the actions of the insurance negotiations agent 2These were conducted for defendant’s insur company personally, ance fully but, rather than the executor as is more below, knowledge discussed the acts and should be at purposes ruling tributed to upon validity the executor for the the demurrer. alleges 3The also that defendant is insured lia bility arising of his policy decedent out of the accident and that greater damages prayed complaint. limits Thus, are than the for in the may argued application of Probate section 707 Code would purpose any recovery by plaintiffs paid serve no since would be company depleted. and the in no estate would event be Similar considerations led to an amendment in 1959 of Probate Code section provides pending against which now the time of his action and has if an action is the decedent at death, accepted if an insurer has the defense of the appeared therein, required except no claim is for amounts
643 provisions of the section disregarded since the be agent should complaint does not that the He also asserts waived. cannot be estoppel and concludes supporting claim of facts set forth sustaining the demurrer correct the trial court amend. leave to without contending that Probate Code section 707 cannot be primarily on Hurlimann waived, defendant relies v. Bank of Cal.App.2d 801, 141 (1956) supra, which held that America filing statutory period binding for claims was even if the by misrepresentations decedent, of the delay caused could not or administrator waive the time that an executor imposed by Probate In Estate Erwin Code. limitations Cal.App.2d 203, 97], 204 P.2d the court (1953) 117 [255 had recovery the claim not been filed because within denied period though the administratrix had prescribed even legally if satisfy the claim she could expressed the desire to similarly provisions have construed the do Other cases so. 707 and contain assertions that Probate Code section (See Harp v. provisions cannot waived. Cala of the section be (1964) 222, 233; (1873) supra, 46 Pearson v. Norton han Cal. Cal.Rptr. Heigho Cal.App.2d 1, 634]; Estate 230 16-17 [40 Cal.Rptr. 196]; Cal.App.2d 360, 367 Estate 186 (1960) [9 Cal.App.2d 638].) 122 217-218 (1953) P.2d Smith [264 fiduciary against may be traced to the rule waiver The or executor The capacity in which the administrator acts. protect duty that his is to the interests have reasoned courts the assets legatees and heirs and to conserve of the of the fiduciary violate his duties their benefit. He would estate for been barred Probate claims which have were to allow clearly would be meri- 707 even if such claims section Code they pre- except were not the circumstance torious (See Estate Erwin prescribed period. within the sented relinquish 204.) cannot supra, Cal.App.2d 203, He (1953) 117 (1964) (Pearson v. Norton existing defense to a claim. a valid supra, Cal.App.2d 1,16.) distinguishable foregoing instant case is from the fiduciary duty authorities in that defendant violated to the no waiving presentation the estate in formal beneficiaries of alleged waiver, conceded the claim. At the time of the it was Thus, defense existed the claim. if waiver no valid Although not limitation of this rule to actions which are the insurance. is difficult to rationalize covered pending death, limita- at ease, clearly inapplicable present tion is stated. Thus the section to the (Estate Middleton which was commenced decedent’s death. Cal.Rptr. 155]; Cal.App.2d Bar see State J. 413.) (cid:127)644 merely occurred, right it was of the to formal claim, and substantial interest of the no beneficiaries was
.surrendered.
comparable
This situation is
to Katz v. A. Ruhlman &
J.
(1945) 69 Cal.App.2d
Co.
426],
which involved
representations
the effect
made
the former executor
before
a claim. The
negotiated
compromise
executor
settlement of claims
which the estate and the creditor had
another
one
had informed the creditor that no claim need
filed
be
with the
The court held that
estate.
even
of fraud
absent evidence
misrepresentation,
permit-
intentional
the estate should
*6
profit
representations
by
ted to
which had
and
been made
rely upon
formally present
the failure
could
to
the claim
period.
prescribed
within
court in Katz
The
noted there was no California case law
directly
point,
but drew a
analogy
useful
Farrell v.
to
County
Placer (1944)
rights of the estate approach approval “a liberal by plaintiffs,” noted requirements Code” illustrated of the Probate to the claims this court. by similar, earlier decision of precise guid foregoing gives decisions While none of automatically present case, that does not bar ance us in the *7 ‘‘ upon precedent Equity recovery. does not wait squares controversy, in will assert exactly with the facts but justice right where would be in those situations itself (Farrell County v. for its intervention.” defeated but of 628.) (1944) supra, 624, 23 Cal.2d Placer generally reiterate that it is not within We authority administrator waive formal of an executor or may do so where a claim. But we conclude congeries prior to the circumstances exists this knowledge the claim period filing a claim: he has for specific sum; only merit save as to the and concedes its coverage exceeding the protected by estate is insurance relinquishment claim; and waiver results amount of the detriment to heirs no benefit of or causes no substantial legatees. complaint alleges
Finally, we must decide whether the facts support plaintiffs’ theory waiver. sufficient to The complaint alleges negotiations place two months that took for during prior this the time the action was filed and that the claim for a defendant’s insurer offered to settle alleged was filed substantial sum. It is further by that the action agreement prior the termination of parties mutual negotiations. allegations, appear while not a model of clarity, These general with sufficient exactitude
state to overcome a demur- plaintiffs’ rer the assertion that formal submission of plaintiffs has been waived. Both and the insurance existing, treated claim as valid and it is difficult to negotiations long and, specifically, reconcile the more the offer proposition settlement, with the that no claim had been recognized by the at the time the action was filed. The complaint alleges company that also the insurance acted as party Although in interest” in “real the statement allegation matter. this may inaccurate, clearly was intended as responsibility negotiations assigned agent’s estate and that the insurance acts and knowledge should be attributed to defendant. special if were Even vulnerable to demur- appears allegations us rer, it from the before that the defects Therefore, cured trial have been amendment. could court erred granting complaint only to amend the leave stating directly against purpose of a cause of action company. (Payne (1908) v. Baehr Cal. Cal.App.2d 895]; Black Browne 607- P. v. 1012].) Having plaintiff’s reach found, so we do not alternative ground for the executor himself was not reversal: properly qualified pub- at time notice to creditors was qualified, rendering He has since the issue moot. lished. The is reversed. J.,* Peters, J., Tobriner, J., Peek,
Traynor, J.,C. concurred. BURKE, J. dissent. I majority opinion (ante, p. only cited case comparable now before presenting a situation
644) assign- Supreme sitting Court under *Betired Associate Justice Judicial Council. ment the Chairman *8 647 us is negotiated the informed had creditor’s creditor court “Whether executor the In probate executors settlement, ease it was said that ‘neither That he liability. years also [159 Lucas filed declining executor, passed, the Katz v. P.2d points out court ’ ” enlarge had and the [1943] and administrators to enter representative. After the 426], but been the A. Ruhlman Co. representative power sued for is not compromise merely compromise settlement of permit J. administrator, who had been 23 Cal.2d In nor estate, estate estate (pp. 545-546 of Katz, however, the former executor questioned. (Prob. abrogate the statutes afford legal compromise with the him was is not involved had full of the creditor to an & them additional adviser the common-law against repudiate valid as between amount attorney (1945) requiring statutory into each other and of the estate’s Code, who 340].) In the latter in this that no claim need Cal.App.2d) attorney claims which the approval protection from compromise the had Cal.App.2d 541 court substituted for § time compromise power 718.5; proceeding. for several for [former] approval for the Estate claim. filing who who court, undisputed Katz, said “The evidence is compromise respondent such a settlement was made. right repudiate had no settlement administrator] [ ’’ expired. had the time to file a claim estoppel The court’s discussion waiver and (p. Katz expressly question also limited 545) was of whether an appointed (with newly administrator) may repudiate agreed a former executor who has the act of to a compromise existing and has advised the creditor that he need file a claim the estate. not in Estate Johnson 240 Cal.App.2d Likewise Cal.Rptr. 147], in which administrator paid had who expenses funeral than the decedent’s less two weeks after requiring death, without of a claim therefor, was holding reimbursement, the allowed court’s limited to the facts of When petitioned narrow the case: the administrator distribution the estate believed himself to be the sole hearing However, peti- time of the distributee. on the employed had had tion a detective he discovered decedent’s heard daughter, years who had from some 20 but objected expenses allowance of the funeral who then Invoking principles paid. equitable administrator unjust (and ingratitude subrogation and of enrichment *9 expenses daughter), pointed further that of the court out the charges against preferred and interment are the last illness (Prob. 950.)1 Code, estate. § in both Katz and Johnson Thus the court was confronted equitable which cried out for with situations relief, but the holding only in each case seems not specific narrow and but express by probate reference to rules of buttressed In law. the opinion estoppel present ease the extends considerably further _than-ilrhas ever stretched and before I fear the door is being opened untimely to claims estates will which be easy disprove. and difficult to assert to Others will seek to follow comply same route to evade fatal the the effect of failure to by alleging the claims statute with “conversations” representatives insurance of the with even an with during period asserting claims and that administrator preclude asserting such “conversations” estate from prosecution statute a bar of the claims. instance, opinion p. 642) (ante,
For
assumes
that an
company’s
“representative”
could
be
executor,
(ante, pp.
at
least three times
agreement
parties” although
646)
refers
“the
“parties”
only
agreeing
company’s agent
were
the insurance
attorney
plaintiffs.
and the
Plaintiffs’
does not
suggest that
any
agreed
anything
even
the executor at
time
(Unlike Katz,
whatever.
where the executor told the claimant
file.)
need
not
Rogers
Radar v.
1They
exempted
statute,
are not
from the claims
however.
Moreover,
present
plaintiffs
case
pleaded
have
none
estoppel.
represented
elements of
were
of.
Plaintiffs
attorney
layman
and not
might
who
have been heard to
plead estoppel if,
Katz, supra (Katz
as in
v. A. Ruhlman
J.
&
Cal.App.2d
Co.,
426])
attorney-executor
expressly
filing
told him the
of a
the estate
unnecessary.
only
would
But here
be
not
did the executor not
plaintiffs
attorney
tell
or their
that no claim need
filed,
but
representations
the executor made no
plain
nature to
negotiated
attorney—who
only
tiffs or their
with the insur
company’s agent
suggest
subject
and do
ance
Thus,
(ante,
even mentioned.2
the conclusion
p.
645)
“may”
an executor or administrator
“waive
a claim”
formal
if a
“congeries
stated
prior
circumstances
exists
open
a claim” I fear will
possibility
door to the
future fraudulent
claims of waiver
actually
did not
place.
take
*10
certainly
justification
And
there seems no
gratuitous
for the
646)
(ante, p.
although plaintiffs’’
statement
that
allega
company
tion that
the insurance
acted
party
as the “real
in
“may
in
interest”
the matter
inaccurate,
clearly
be
was
allegation
responsibility
intended as an
that
negotia
for the
assigned by
had been
tions
the estate and that
the insurance
agent’s
knowledge
acts and
should be attributed to defendant
(Italics added.)
perceive
I am
to
unable
[executor]:”
quoted allegation
in
complaint.
such intention
the
from the
by
authority
Further,
can it
that
what
be held
the estate or
“assign”
responsibility
the executor can
to
insurance
agent
anyone
carry
negotiations
or
on
else to
which would
binding upon
be attributed
be
estate
the
absent an
compromise
agreed
and settlement
entered
into
the
prior
filing
(as
executor
the time for
claims
Co., supra,
in
v.
&
the situation
Katz
A. J. Ruhlman
was
Cal.App.2d
upon
541)
statutory
? It is
that
executor
Legislature
imposes
responsi
laid
scheme
down
administering
protecting
bility for
the estate and
and conserv
quoted
ing
Additionally,
its
could not
statement
assets.
opinion
claimant
be taken to mean
who is
from
presented
County
opposite
Farrell v.
2The exact
situation
323],
Placer
McComb, concurred. 31, 1967.] Jan. No. 10409. Bank. [Crim. Corpus. al., et on Habeas WILFORD WRIGHT In re