68 N.J. Eq. 189 | New York Court of Chancery | 1904
Complainant has brought suit at law against the defendant Rebecca Goodwin, as executrix of her husband, Hannibal Goodwin, deceased, upon a claim of $2,463 for goods sold and delivered to the testator in his lifetime. In this suit, the defendant, besides the general issue and plena admmistramt, has pleaded two special pleas, one of which is that the claim'of the plaintiff was not exhibited under oath, as required by the order taken to limit creditors, which was duly published, and that by a final decree, made by the surrogate, October 17th, 1901, all claims not brought in within the time limited by the order
The defendants demur jointly to the whole bill, assigning
The complainant’s debt is not established by judgment or admitted by 'the executrix, and a suit at law is now pending to establish it. No circumstances are shown in the bill to justify the removal of the settlement of this dispute to this court, or to warrant this court in interfering with the settlement of the estate in the ordinary manner. Frey v. Demarest, 16 N. J. Eq. (1 C. E. Gr.) 236, 239 (Chancellor Green, 1863); Rutherford v. Alya, 54 N. J. Eq. (9 Dick.) 411 (Court of Errors and Appeals, 1896); Loehnberg v. Loehnberg, 88 N. J. Eq. (18 Dick.) 496, and cases cited (at p. 498).
Until the complainant’s debt or claim is established against the executrix in the forum which complainant has chosen for that purpose, this court cannot make any declaration or decree against the defendant as executrix, and until the complainant has exhausted his remedy against the estate in the hands of the executrix no relief can be given against the defendant as legatee or under the alleged trust agreement. The only equitable jurisdiction exercisable under this bill, therefore, is that jurisdiction invoked in connection with the suit at law, and for the purpose of preventing the defendant from setting up the decree barring claims as a defence. Under the statute (Orphans Court Revision, P. L. of 1898 p. 740 § 70) this decree is made solely upon proof of the setting up and advertising of the notices to creditors, as directed by the rule to bar, the surrogate or court apparently considering no other question and making the decree on the ex parte application of the executor or administrator without notice to any creditor. The decree once made, becomes by the statute a bar against any creditor who peglected to bring in his claim within the time limited, and the decree is conclusive and cannot be attacked collaterally. Ryan v. Flanagm, Administratrix, 38 N. J. Law (9 Vr.) 161, 164 (Supreme Court, 1875). In a court of law, defendant could not, therefore, be
The provision of the statute, requiring the claims to be presented under oath, was intended primarily for the protection of the executor or administrator, and where tire estate was solvent the executor could, if he chose, waive this provision and recognize or pay any claim which he knew, or became satisfied was just, without requiring the oath of the creditor. Kinnan v. Wight, 39 N. J. Eq. (12 Stew.) 501, 504 (Chancellor Runyon, 1835). This right is now expressly recognized by the statutes, which allow the executors or administrators to. be allowed for payments of claims not presented under oath, if proved to be just claims. Orphans Court Revision, P. L. of 1898 p. 739 § 68; First National Bank v. Thompson, 61 N. J. Eq. (16 Dick.) 188, 206 (Vice-Chancellor Stevens, 1900). Statutory provisions, for the benefit of private or personal rights and not affecting public rights or policy, may in general be waived, and this is specially true as to statutory provisions relating to formal procedure. Endl. Stat. § 445. The waiver of the oath to the claim by the executrix, who was also' the sole legatee, and her acceptance of the claim as if sworn to, did not affect, and it is not claimed to affect, the right to have the claim established by suit, and the substantial question in the case is whether, by the failure to present the claim under oath, the complainant is barred by the decree from establishing his claim by proving the same in the action against the executor. It seems clear to me that if, in this case, the oath to the claim has been waived by the executrix, or she is equitably estopped from setting up that the oath was not made, she should be enjoined from interposing the decree as a bar to a suit upon the claim. The facts disclosed in the bill, from which this waiver or estoppel is alleged to arise, are substantially the following: Complainant furnished and supplied to testator, before his death and from May to September, 1900, work, labor and materials to the amount of $2,463, to be paid for in cash. Testator died in December, 1900, having devised and bequeathed all his estate, real and personal, to his widow, the defendant Rebecca Goodwin, who was appointed sole executrix and qualified as
“September 12th, 1901.
“James M. Seymour, Jr., Esq.:
“Dear Sir — Mr. Bolmer tells me that he met you the other day, and that you broached the subject of the bill you have presented to me for work' and materials furnished the late Mr. Goodwin, with apparently some anxiety about it.
“I don’t know whether he told you that an arrangement has been made with parties in New Tork, long engaged successfully in photographic business, who have the management now of the Goodwin Co. and Goodwin patent, and that it is thought by us all that the very best thing for the doing well by the patent has been done.
“A part of the arrangement is that the agreement between you and Mr. Goodwin should be carried out — which I understand to be that the stock in the Goodwin Pilm and Camera Co., to the amount of your bill, will be given to you and taken in satisfaction thereof, the same arrangement made for and by myself for the like service. Absence on vacation of myself and other parties concerned has delayed making out certificates of stock, &c. In a few days one, as above, will be ready for you.
“Very truly yours,
“CORTLAXDT PARKER.”
To this letter the complainant replied under the same date, acknowledging' receipt of Mr. Parker’s letter, ajad stating that he was not aware of any arrangement to receive either cash or stock for the materials furnished, but that he and not Mr. Goodwin had the option as to receiving stock, and that he needed money and did not want stock, and also informing Mr. Parker that he had sent Mr. Parker’s letter and a copy of his own letter in reply to Mr. Ziegler, who would call on Mr. Parker. Subsequently, and on October 17th, 1901, the decree
Subsequent to the entry of the decree, and before the commencement of the suit, interviews and communications took place between Mr. Ziegler and Mr. Parker in reference to settling the claim, and in one of the letters, dated May 23d, 1902, Schedule E, Mr. Parker tendered'Mr. Ziegler, as representing complainant, stock of the company of the par value of $5,000 in discharge of the claim made by the complainant through Mr. Ziegler against Mrs. Goodwin, executrix, and then stated Mrs. Goodwin’s understanding that the work and materials were furnished to the corporation and were to be paid for by fifty shares of stock and not by money. The facts disclosed in reference to the interview between Mr. Ziegler and Mr. Parker ’at the time of the presentation of the claim, do not, in my judgment, raise any estoppel against the assertion of the executrix that the claim was not verified. These were merely, according to the bill, assurances that the bill was all right, but general assertions of this character, without special reference to the qrrestion of whether the claim was verified or not, have not been held sufficient to dispense with the necessity of verification or to prevent the executor from setting up the want of the oath (Lewis v. Champion, 40 N. J. Eq. (13 Stew.) 59, 62, Chancellor Runyon), and it appears besides that neither complainant nor his attorney had up to the time of that interview relied on the assurances of this character as relieving them from the necessity of verifying the claim. In the spring of 1901 Mr. Parker had, according to the bill, told Mr. Ziegler that he and Mrs. Goodwin knew all about complainant’s claim and that' it was all right and would be protected, but subsequent to this conversation the itemized bill, and the affidavit verifying it, were made out for presentation.
The question in the case, in my judgment, is whether the letter written by Mr. Parker to the complainant himself in reference to the claim on September 12th, 1901, more than a month before the taking of the decree, and while there was still abundant time to remedy the defect of verification if it was insisted on, must not be taken as a waiver of this verifica
The statutes providing short limitations for actions on re^ jected claims and for barring actions on claims not duly presented are, generally, if not universally, considered penal in character, and cannot be invoked on behalf of the personal representative to bar suit on the claim where his action toward the creditors in relation to the rejection or presentation of the claim has been ambiguous or equivocal. 2 Woer. Admn. *812, citing, inter alia, Hoyt v. Bonnett, 50 N. Y. 538, 542.
In the absence of the statute providing that the decree should bar creditors, there would seem to be no reason why the waiver could not be set up and enforced in the action at law, as in actions on insurance policies, where formal provisions as to1 proofs of loss have been waived, but the statute having provided for the decree barring creditors and declared its effect, the only method of enforcing waiver of formal proofs in cases like the present is by holding the representative estopped from setting up or having the benefit of the decree. The decree barring creditors having been in fact set up by the plea, the defendant should be enjoined from proving the decree in the suit at law. I will advise an order over ruling, the demurrer.