Berger v. O'HEARN

CARTER, J.

I dissent.

I disagree with the construction placed, by the majority, upon the statutes in question. In the main, that construction is based upon the old case of Barclay v. Blackinton, 127 Cal. 189 [ 59 P. 834 ], which was decided in 1899 before the amendment to section 1498 (now Prob. Code, § 714) of the Code of Civil Procedure.

The chronology of the factual situation as disclosed by the record is as follows:

The obligation here involved was incurred shortly prior to December 6, 1945.

The defendant died in July, 1947.

Letters of administration were issued on his estate in August, 1947.

Plaintiff’s creditor’s claim was filed February 3, 1948, within the statutory time.

Written notice of the rejection of the claim was given to plaintiff on February 20, 1951.

Present action commenced by plaintiff on claim on April 18, 1951.

General four-year statute limitation expired in November, 1949.

Section 353 of the Code of Civil Procedure provides that an action may be commenced against the legal representative of a deceased person within one year after the issuance of letters testamentary or of administration. Section 712 of the Probate Code provides that if the executor or administrator *735 neglects or refuses to allow or reject a claim for ten days after its filing, it may be deemed rejected on the tenth day. Section 714 of the Probate Code provides that within three months after written notice of rejection of a claim, suit must be brought thereon.

As above seen, a claim was duly filed in the instant case on February 3, 1948; formal notice of rejection of the claim was given to plaintiff on February 20, 1951, some three years after the claim was filed. After receipt of the formal notice of rejection of his claim, plaintiff promptly began his action; the general statute of limitations ran on the obligation in November, 1949. Section 712 of the Probate Code provides that the claimant may at his “option” deem the claim rejected on the tenth day; the section is not mandatory, but permissive. Section 714 of the Probate Code provides that suit must be brought on a claim within three months after formal written notice of rejection. Sections 710 and 711 (claims filed with clerk and claims presented to executor or administrator) provide that the executor or administrator must allow or reject the claims. The executor or administrator must either allow or reject the claim, but if he does not do so the claimant, at his own option, may await his action which, if it be to reject the claim, then gives the claimant three additional months in which to bring an action. To so construe the sections makes them harmonious. To construe them, as is done in the majority opinion, has the effect of rendering nugatory the optional provision in section 712, the mandatory provisions of sections 710 and 711 and the three months’ provision in section 714. For example, a claim is filed within the time allowed and is not acted upon by the administrator or executor. If the claimant, at his option, decides not to deem the claim rejected but desires to await the action of the executor or administrator, relying upon the three months’ provision in section 714, he will, if the general statute has run in the interim, find himself without a remedy. Since the sections (710 and 711) provide that action must be taken by the administrator or executor, section 712, which gives the claimant an option to deem it rejected in 10 days, can have no purpose but to permit (not to compel), if desired, action for recovery on the claim prior to action by the representative of the deceased rejecting the claim.

Barclay v. Blackinton, supra, 127 Cal. 189, 193 , which is factually similar to the case under consideration, had this to *736 say: “It is said that under the Code of Civil Procedure, section 1498 [now Probate Code, § 714], the plaintiff had three months after the claim was formally and officially rejected by the administrator in which to bring his action. We do not so construe the statute. The section may shorten but cannot be held to lengthen the general statute of limitations. The special limitation of time within which suit must be brought against the estates of deceased persons are called in many states statutes of nonclaim or of short or special limitation. These limitations exist independent of and collateral to the general law of limitations. (2 Woerner’s American Law of Administration, sec. 400, and cases cited.)” Ten years after the decision in the Barclay case was handed down, section 1498 (now Prob. Code, § 714) was amended so as to provide that written notice of the rejection of a claim “shall be given by the executor or administrator to the holder of such claim.” Prior to that amendment, no written notice of rejection had been provided for before the three months’ period for suit on the claim commenced to run. In Estate of Wilcox, 68 Cal.App.2d 780 , at page 785 [ 158 P.2d 32 ], it was specifically held that the first part of section 714 of the Probate Code was a statute of limitations. In Fifield v. Bullwinkel, 81 Cal.App. 440 , at page 442 [ 253 P. 962 ], it was held that “. . . it follows that without regard to the time of publication of notice to creditors, the period of three months as limited by section 1498 [Prob. Code, § 714] of the Code of Civil Procedure, within which the claimant must bring his action upon a rejected claim, begins to run on the date when the executor first gives to the claimant written notice of such rejection.” (Emphasis added.)

This section (Prob. Code, § 714) deals expressly and specifically with the bringing of an action upon a rejected claim in probate. The remedy there afforded is conditioned only upon the claimant commencing his action within three months after receipt of notice of rejection from the executor or administrator. There is no requirement that the action must be brought within one year after the issuance of letters testamentary or of administration. To hold, as is held by the majority, that the action must be brought within a year from the issuance of letters, or within the period of the general statute of limitation, is to render nugatory not only the three months’ period provided for by section 714 but the mandatory provisions of section 712 of the Probate Code relating to *737 notice of allowance or rejection of claims by the executor or administrator.

The rule is well established that all of the statutory provisions in all of the codes must be read together and harmonized if possible. As stated by this court in In re Porterfield, 28 Cal.2d 91 , at page 100 [ 168 P.2d 706 , 167 A.L.R. 675 ] : “It is a well-recognized rule that for purposes of statutory construction the codes are to be regarded as blending into each other and constituting but a single statute. [Citing cases.] ” It would seem that under this rule the provisions of the Code of Civil Procedure relating to the time within which actions must be commenced should be so construed as to give effect to the above cited provisions of the Probate Code relating to the approval and rejection of claims against estates of deceased persons and the commencement of an action for recovery of a rejected claim. The majority opinion gives no consideration to the above-mentioned rule.

In my opinion, the rule of the Barclay case which was laid down in 1899, should be restated in the light of the present statutes as well as in the light of present day conditions. It is placing too great a burden on attorneys today to hold that they must deem a claim rejected and commence an action thereon at the close of the 10-day period provided for in section 712 of the Probate Code or run the risk of their client’s claim being barred by a general statute of limitation; it is also not in harmony with the provisions of that section and those of section 714 of the same Code.

Under the interpretation placed on the above-mentioned statutes by the majority opinion it would be possible for the general statute of limitation to run either before a claimant had an opportunity to present his claim against the estate of a deceased debtor or before he could bring suit on the claim after presentation of it, but that situation does not exist in this case. However, the statute should be construed so as to afford a remedy to a claimant under any factual situation which might arise.

I would, therefore, reverse the judgment.

Appellant’s petition for a rehearing was denied January 11, 1954.

Carter, J., was of the opinion that the petition should be granted.