Satterfield v. Garmire

BURKE, J.

I dissent. The only case cited in the majority opinion (ante, p. 644) as presenting a situation comparable to that now before *647 us is Katz v. A. J. Ruhlman & Co. (1945) 69 Cal.App.2d 541 [ 159 P.2d 426 ], In Katz , however, the former executor who negotiated the compromise settlement of claims which the creditor and the estate had against each other and who informed the representative of the creditor that no claim need be filed with the estate, was an attorney who had for several years also been the legal adviser and attorney for the creditor’s representative. After the statutory time for filing had passed, the administrator, who had been substituted for the executor, sued for the full amount of the estate’s claim. In declining to permit him to repudiate the compromise the court points out (pp. 545-546 of 69 Cal.App.2d) that “Whether the compromise was valid as between the [former] executor and the estate is not involved in this proceeding. That he had power to compromise with the approval of the probate court is not questioned. (Prob. Code, § 718.5; Estate of Lucas [1943] 23 Cal.2d 454 [ 144 P.2d 340 ].) In the latter ease it was said that the statutes requiring court approval ‘neither enlarge nor abrogate the common-law power of the executors and administrators to enter into a compromise or settlement, but merely afford them additional protection from liability. ’ ”

In Katz , said the court, “The undisputed evidence is that such a compromise and settlement was made. The respondent [ administrator] had no right to repudiate that settlement after the time to file a claim had expired. ’ ’

The court’s discussion of waiver and estoppel in Katz (p. 545) was also expressly limited to the question of whether an estate (with a newly appointed administrator) may repudiate the act of a former executor who has agreed to a compromise of an existing claim and has advised the creditor that he need not file a claim against the estate.

Likewise in Estate of Johnson (1966) 240 Cal.App.2d 742 [ 50 Cal.Rptr. 147 ], in which an administrator who had paid the decedent’s funeral expenses less than two weeks after death, without requiring the filing of a claim therefor, was allowed reimbursement, the court’s holding was limited to the narrow facts of the case: When the administrator petitioned for distribution of the estate he believed himself to be the sole distributee. However, by the time of the hearing on the petition a detective he had employed had discovered decedent’s daughter, who had not been heard from for some 20 years but who then objected to allowance of the funeral expenses which the administrator had paid. Invoking principles of equitable *648 subrogation and of unjust enrichment (and of ingratitude by the daughter), the court pointed out further that expenses of last illness and interment are preferred charges against the estate. (Prob. Code, § 950.) 1

Thus in both Katz and Johnson the court was confronted with situations which cried out for equitable relief, but the holding in each case seems not only narrow and specific but buttressed by reference to express rules of probate law. In the present ease the opinion extends estoppel considerably further _than-ilrhas ever been stretched before and I fear the door is being opened to untimely claims against estates which will be easy to assert and difficult to disprove. Others will seek to follow the same route to evade the fatal effect of failure to comply with the claims statute by alleging “conversations” with insurance representatives of the estate or even with an administrator during the claims period and asserting that such “conversations” preclude the estate from asserting the statute as a bar to prosecution of the claims.

For instance, the opinion assumes (ante, p. 642) that an insurance company’s agent could be the “representative” of the executor, and at least three times (ante, pp. 641, 642, 646) refers to agreement of “the parties” although the agreeing “parties” were only the insurance company’s agent and the attorney for plaintiffs. Plaintiffs’ complaint does not even suggest that the executor at any time agreed to anything whatever. (Unlike Katz , where the executor told the claimant he need not file.)

In Radar v. Rogers (1957) 49 Cal.2d 243 [ 317 P.2d 17 ], relied upon in the opinion (ante, pp. 642, 645), plaintiffs timely presented their claims to the administratrix, and no question of asserted estoppel or of waiver of compliance with the claim-filing requirement was involved. Further, the defense that suit was commenced before the presentation and rejection of claim was termed “simply matter of abatement—. a defense which is not favored, and must be made by plea, and in proper time, or it is waived.” Further, stated the court in Radar v. Rogers , “Here there is no occasion to consider whether the unfavored defense was waived, for it had ceased to exist at the time defendant so light to raise it.” (P. 250 of 49 Cal.2d.) By contrast in the present case, no claim was filed until after the statutory period therefor had expired; that defense (not an unfavored one) still existed when defendant raised it.

*649 Moreover, in the present case plaintiffs have pleaded none of. the elements of estoppel. Plaintiffs were represented by an attorney and not by a layman who might have been heard to plead estoppel if, as in Katz, supra (Katz v. A. J. Ruhlman & Co., 69 Cal.App.2d 541 [ 159 P.2d 426 ]) an attorney-executor had expressly told him the filing of a claim with the estate would be unnecessary. But here not only did the executor not tell plaintiffs or their attorney that no claim need be filed, but the executor made no representations of any nature to plaintiffs or their attorney—who negotiated only with the insurance company’s agent and do not suggest that the subject of a claim was even mentioned. 2 Thus, the conclusion (ante, p. 645) that an executor or administrator “may” “waive formal presentation of a claim” if a stated “congeries of circumstances exists prior to the expiration of the period for filing a claim” I fear will open the door to the possibility of future fraudulent claims of a waiver which actually did not take place.

And certainly there seems no justification for the gratuitous statement (ante, p. 646) that although plaintiffs’’ allegation that the insurance company acted as the “real party in interest” in the matter “may be inaccurate, it clearly was intended as an allegation that responsibility for the negotiations had been assigned by the estate and that the insurance agent’s acts and knowledge should be attributed to defendant [executor]:” (Italics added.) I am unable to perceive any such intention in the quoted allegation from the complaint. Further, by what authority can it be held that the estate or the executor can “assign” responsibility to an insurance agent or to anyone else to carry on negotiations which would be attributed to or be binding upon the estate absent an agreed compromise and settlement entered into by the executor prior to expiration of the time for filing claims (as was the situation in Katz v. A. J. Ruhlman & Co., supra, 69 Cal.App.2d 541 ) ? It is upon the executor that the statutory scheme laid down by the Legislature imposes the responsibility for administering the estate and protecting and conserving its assets. Additionally, could not the quoted statement from the opinion be taken to mean that a claimant who is *650 negotiating directly with- the executor for settlement hut who fails to file his formal claim within the statutory period is thereby excused from such filing, even though, as in the present case, no representations whatever were made to the claimant on the subject ? But perhaps the negotiations will not be considered essential to a claim of waiver, as they are not included within the described “congeries of circumstances” which the opinion declares will authorize an executor or administrator to waive formal presentation of a claim.

The trial court held that the claim was barred by the statute but did not preclude whatever cause of action the claimant might be able to assert against the insurance company. The seemingly unfair aspect of this case which arouses sympathy emanates from the actions of the insurance representatives and it would appear that the insurance company and not the estate should be held responsible, assuming that the conduct of its representatives was so gross as to be actionable.

I would affirm the judgment of dismissal in favor of the executor.

McComb, J., concurred.

They are not exempted from the claims statute, however.

The exact opposite situation was presented in Farrell v. County of Placer (1944) 23 Cal.2d 624 [ 145 P.2d 570 , 153 A.L.R. 323 ], cited in the opinion in the present case. In Farrell an agent of defendants was dealing directly with the injured plaintiff while she was still hospitalized, and made express representations to her which defendants attempted to repudiate after the statutory time for filing a claim had expired.