194 P. 1099 | Ariz. | 1921
(After Stating the Facts as Above.)— It is claimed by the appellant that the proceeding instituted by the appellee, to obtain an order of the court requiring the administrator to sell the property of the estate for the purpose of paying the appellee’s claim, was not a “suit” within the meaning of the stipulation in the note providing for attorney’s fees. His contention is that the proceeding was a collateral matter not contemplated by the parties. 8 Corpus Juris, 1029. We do not think this contention is tenable. Although the proceeding may not have been a suit within the technical meaning of that term, still it was a resort to a judicial tribunal for the purpose of enforcing the payment of appellee’s claim and was rendered necessary by the nonaction of the administrator. Such a proceeding would require the services of an attorney just as much as the services of an attorney would be required to enforce the payment of a demand against an individual by the -filing of a complaint in an, ordinary suit. We do not think that the language of the stipulation which provides for the payment of attorney’s fees in case “suit be brought or attorney employed to collect this note” should be restricted to a suit in equity or an action at law. The proceeding was essentially a “suit” to enforce the payment of the claim. Simmons v. Terrell et al., 75 Tex. 275, 12 S. W. 854
It is also contended that the claim for the attorney’s fee was never presented to the administrator, and hence that no suit could be maintained for the purpose of collecting such claim under the express provisions
“No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator, except in the following case.”
But a copy of the note containing the stipulation for the attorney’s fee was presented to the administrator. Paragraph 886 of the Revised Statutes of Arizona of 1913 provides:
“If the claim is founded on a bond, bill, note or any other instrument, a copy of such instrument must accompany the claim.”
Paragraph 883 provides:
“If the claim be not due when presented, or be contingent, the particulars of such claim must be stated.”
The claim as presented contained “all the particulars” which paragraph 883 requires to be stated on the filing’ of a contingent claim. The appellee was not bound to make an express claim for attorney’s fees. In Landis v. Woodman, 126 Cal. 454, 58 Pac. 857, 858, the Supreme Court of California, in construing the statute of that state from which our paragraph 883 was taken, held:
“The requirement of Code Civ. Proc., § 1494, that the particulars of a claim against an estate must be stated if it is not due when presented, is complied with in the case of a claim based on an ordinary note,' if the particulars appearing on the face of the note are stated.”
See, also, Crocker-Woolworth National Bank v. Carle, 133 Cal. 409, 65 Pac. 951, 952.
It is furthermore contended that the claim for attorney’s fee was rejected by the administrator, and that owing to the failure to bring suit on the claim within ninety days thereafter the claim was barred.
“When a claim is rejected, either by the executor or administrator or the judge of the superior court, the holder must bring suit in the proper court against the executor or administrator within three months after the date of its rejection, if it be then due, or within two months after it becomes due, otherwise the claim shall be forever barred.”
We do not think that the allowance in the form in which it was made was equivalent to a rejection of the claim for attorney’s fee. The language of the indorsement does not properly bear this construction. The claim was allowed for the full sum of the principal and interest due on the note. .The allowance did not contain any limitation or reservation whatever, and we think it amounted to a direct recognition of the validity of the note and may be construed as an implied allowance of the note, according to its terms and tenor. The claim did not fall due until appellee was compelled to employ an attorney to enforce its payment, and such proceedings were instituted within two months after the claim became due.
The agreement to pay attorney’s fee was a part of the contract, contingent, it is true, upon the necessity arising to employ an attorney to enforce payment of the note. This contingency happened by reason of the administrator endeavoring to close the estate without making provisions for the páyment of the note.
There was no error in ordering the payment of the attorney’s fee out of the proceeds of the sale of the property.
The order is affirmed.
ROSS, O. J., and McALISTER, J., concur.
