Kuakini Hospital & Home v. Yamanoha

OPINION OE THE COURT BY LEWIS, J. This is an appeal by plaintiff from a summary judgment dismissing the action on the ground that plaintiff's — 91 — averred claim, for “hospitalization, services rendered and supplies furnished by plaintiff to the deceased,” Hr. Richard A. Yamanoha, is barred by the nonclaim statute, R.L.H. 1955, § 317-23. That statute provides that any claim “not presented within four months from the first day of publication of the notice [to creditors], * * * shall be forever barred and the executor or administrator shall not be authorized to pay it.” Dr. Yamanoha died on August 21, 1957. Defendantsappellees, Margaret E. Yamanoha and First Trust Company of Hilo, Ltd., the coexecutrix and coexecutor of his estate, hereinafter referred to as the “executors,” duly published in the Hilo Tribune-Herald, commencing on September 28, 1957, a notice to creditors of the decedent requiring them to present their claims to the executors at 64 Keawe St., Hilo. This is the address of First Trust Company of Hilo in the County of Hawaii. The probate proceedings were had in the Third Circuit, County of Hawaii, and the Hilo Tribune-Herald, in which the notice was published, is a newspaper of general circulation in that county, as provided by R.L.H. 1955, § 213-10. Plaintiff, however, has its place of business in the City and County of Honolulu. During the four months’ period plaintiff, by mail addressed to the deceased, sent out on more than one occasion a statement in the following form: “KUAKINI HOSPITAL AND HOME 347 No. Kuakini St. Honolulu, Hawaii Nov. 9,1957 Dr. Richard A. Yamanoha 57 Hina Street Hilo, Hawaii — 92 — In-Patient Kuakini Hospital — Balance.............. $2,292.74 88.95 Total ........................................................ $2,381.69” These statements were forwarded through the mail to the widow, one of the executors, reaching her at her then residence in Hilo, a different address from that used by plaintiff. According to the widow’s uncontested answer to written interrogatories the statements “were thrown away in the rubbish when received.” The four months’ period expired in January, 1958. A verified claim filed by plaintiff with the clerk of the court on March 11, 1958, with copies to the executors, was rejected by the executors on the ground that time for filing had expired, and this suit followed. The executors, defendants herein, contend that the steps taken by plaintiff during the four months’ period were insufficient for compliance Avith the statute, that the executors were not called upon to act with respect thereto, and that no steps taken after the expiration of the four months’ period could perfect the claim. Plaintiff contends that the Avidow, who also is sole beneficiary under the will of deceased, failed to carry out her fiduciary duty to plaintiff as a creditor of deceased, that at the trial it would have appeared that she was fully informed in respect of the indebtedness of deceased to plaintiff, that enough was done during the four months’ period to save the claim, that if more information should have been furnished by the plaintiff then the executors should have given plaintiff opportunity to do so, and that it is not too late for plaintiff to do so, even now, by amendment of the claim. Primary enaphasis is put by the executors on two things: (1) the absence of any information in the statement received by the widow, during the four months’ — 93 — period, as to the time when, the hospitalization occurred, and (2) the statutory requirement that a creditor’s claim shall he presented “with proper vouchers or duly authenticated copies thereof.” However, this case does not require consideration of the necessity of furnishing — or the effect of not furnishing — the above. Whether the onus of calling for further information can be placed on the . executor by a paper which is insufficient in the above respects, is a question we do not reach. To “present” his claim a creditor must, as the first requisite, seek payment out of the estate. First National Bank v. Love, 232 Ala. 327, 167 So. 703, 713; White v. Blair, 234 Ala. 119, 173 So. 493; Dime Savings Bank v. McAlenney, 76 Conn. 141, 55 Atl. 1019; Pfeiffer v. Suss, 73 Mo. 245; Horicon v. Langlois’ Estate, 115 Vt. 81, 52 A. 2d 888. This rule was recognized in Bishop Co. v. Williams, 9 Haw. 299 (1893). The case was decided under the Act of June 23, 1868, S.L.H. 1868, p. 51, which was different from the present nonclaim statute in several respects but like the present statute required that a creditor of the deceased present his claim to the executor within a stated time after publication of notice or be forever barred. The claim was based on deceased’s endorsement of a note, which after his death was dishonored, and a notary thereupon, within the period fixed by the then nonclaim statute, addressed a notice of protest to the executors, stating therein that “the holders look to you for the payment [of the note].” The court said at 302-303: “It is urged by defendants’ counsel that the notice of protest is not sufficient presentation of a claim, because it was only intended to fix the liability of the indorser. We fail to see, even if this was its primary object, why it cannot also be considered as the presentation of. a claim within the statute of non-claim. — 94 — It afforded them all the particulars of the claim, as to character and amount. It also states a claim that The holder[s] look to you for the payment thereof,’ a statement unnecessary to fix the liability of the indorser.” It is well settled that knowledge of the claim on the part of the executor will not excuse presentation of the claim. Estate of S. Kaiu, 17 Haw. 514, 516 (1906). Presentation is required even if the claim appears from the books and papers of the deceased, who conceded his indebtedness. Pfeiffer v. Suss, supra. The nonclaim statute would be nullified if a creditor who did not seek payment from the estate were to be treated as if he had, merely because he continued to send out bills one of which came into the hands of the executor, confirming what he already knew. In Dime Savings Bank v. McAlenney, supra, the court said: “* * * there is no finding of any act done or word spoken by the plaintiff, or by any one in its behalf, which was either actuated by a purpose to put this note in a position to claim payment out of the estate, or which evidenced, or was intended to evidence, any such purpose. The finding is barren of fact or incident transpiring prior to the expiration of the time limited for the presentation of claims indicative of an intention on the plaintiff’s part to establish for its claim a status which should entitle it to share in the division of the assets of the estate. All that appears is that at some time unknown, and in some way unknown, and either with or without purpose, knowledge of the existence of the claim passed from the plaintiff to the executor. This we have heretofore held is not enough.” (p. 1021.) In the present case, reliance is upon a statement — 95 — addressed to the deceased, not to the executors or either of them, at an old address, not the place designated in the notice to creditors for the presentation of claims. It was an ordinary statement of account. It came into the hands of the widow, the coexecutrix, having been forwarded through the mail. The most that can be said is that the coexecutrix exercised her authority as such in receiving it in the mail. She did not treat it as a matter requiring her official attention in her fiduciary capacity. It did not purport to be such. There was not expressed or implied any intention to look to the estate for payment. We hold that there was no presentation of the claim within the four months’ period. This is not to be taken as holding, tacitly or otherwise, that the statement here involved would have satisfied the statutory requirements of a valid claim, preventing the bar of the nonclaim statute from applying, if it had not been for the above-enumerated circumstances. In view of our holding that not even the first requisite was met, and as we have said, we need not and do not reach the question whether this paper was fatally defective in other respects. In Coots v. Morgan's Adm'r, 24 Mo. 522 (1857) it was held that the creditor should have been permitted to introduce testimony in support of a claim made out against the deceased. But in that case the claim had been presented to the County Court for allowance after notice to the administrator that the claim would be presented for allowance “against the estate.” The creditor’s purpose could hardly have been misunderstood. The third sentence of R.L.H. 1955, § 317-23, provides that a claim “otherwise proper” shall be allowed “notwithstanding that a claim may fail to designate or may improperly designate the obligor or obligors on the claim.” But other portions of this sentence make it plain that this is a provision for allowance of a claim against whatsoever — 96 — property, separate or community, shall be liable therefor, without regard to the determination made in the claim in respect of that matter. Indeed, this third sentence, and the provision that the notice shall be directed as well to the creditors of the community if the deceased was married, both were added to the nonclaim statute by the Community Property Law, S.L.H. 1945, c. 273, repealed in part and amended in part by S.L.H. 1949, c. 242. The 1949 Act made no amendment of the nonclaim statute but, in view of the other provisions of the 1949 Act, this does not alter our conclusion as to the purpose of the third sentence of the nonclaim statute. Plaintiff relies on United States Gypsum Co. v. Shaffer, 7 Cal. 2d 454, 60 P. 2d 998 (1936). In that case the executors made no objection to the continuance, without substitution, of an action which was pending when the decedent died. On the basis of a notice of motion in the suit, in response to which one of the executors, who had been attorney for decedent, appeared without disclosing the death of his client, plaintiff was permitted to file an amended claim after expiration of the time for filing creditors’ claims. The executors refused payment of this claim. The court held that the amended claim properly was permitted to be filed, but questioned whether any presentation of claim was necessary under the circumstances. That the result reached was affected by the fact that the executor, in the pending action, accepted the procedure followed as sufficient, appears at the end of the opinion where the court said: “On whichever horn of the dilemma the defendants care to rest, it appears either that a claim was not required to be filed, or that the presentation to the proper person of the notice of motion of May 16, 1933, and appearance pursuant thereto served as a presentation of notice of the plaintiff’s claim to the executors — 97 — upon which the court could properly predicate an order permitting an amended claim to be filed.” Although this California case resembles the present one in that the creditor was ignorant of the death of the party liable, we are not persuaded that the court would have reached the same result had the notice of motion served in the action been ignored. This is one of several cases in which the executor, though ultimately resisting the claim, originally had acceded in the creditor’s mode of pursuing his claim and such circumstance was deemed a factor in upholding the claim. Compare Hammett v. Starkweather, 47 Conn. 439 and Roth v. Ravich, 111 Conn. 649, 151 Atl. 179 with Pike v. Thorp, 44 Conn. 450 and Powell v. Moore’s Est., 93 Vt. 476. On the other hand in Pfeifer v. Suss, supra at 254, it was held that: “It does not matter what the administrator’s understanding was.” In view of the factual situation here none of these cases is in point. Plaintiff relies upon cases which hold that, in the particular circumstances, the executor should have called for further information or the court should have permitted the creditor to amend the claim. Plaintiff argues that the filing of the verified claim on March 11, 1958 was by way of amendment. The first line of cases, exemplified by Standiford v. Cantrell, 87 Cal. App. 736, 262 Pac. 800, holds it incumbent upon the executor to call for any needed clarification Avhen enough has been done to constitute a claim. The other line of cases, exemplified by Davis v. Superior Court, 35 Cal. App. 473, 170 Pac. 437, holds applicable a statute permitting amendment of any “proceeding”; plaintiff contends that B.L.H. 1955, § 230-53 is such a statute and is applicable. Whether under our law presentation of a creditor’s claim is a “proceeding,” as held in the cases relied upon, — 98 — need not be decided. Aside from the question of similarity of statutes — there is no provision in our law for allowance of claims by the probate judge before payment — no legal “proceeding” can be deemed to have been commenced at a time when, as here, the creditor was still endeavoring to collect the debt without such “proceeding.” The argument founded upon the duty of the executor to seek clarification likewise fails at the outset, and we do not consider the applicability under our statute of the cases that have been cited on that point. Plaintiff did not even endeavor to file a claim within the required time. Plaintiff may not have known of Dr. Yamanoha’s death, but under our statute the only guarantee of such knowledge is perusal of the legal notices in all newspapers of general circulation in any county where the estate of a debtor might conceivably be probated. Plaintiff’s argument really is that plaintiff was entrapped and deceived by the action of the widow in receiving and discarding the statements of account addressed to Dr. Yamanoha without informing plaintiff of his death. However, even if we should so view the circumstances, that would not save the claim. In this jurisdiction there is no statutory provision for relief against the nonclaim statute such as exists in some states. Our statute is decisive of this action. See Parchen v. Hauschild, 159 Wash. 49, 292 Pac. 116; In re Landers’ Estate, 34 N.M. 431, 283 Pac. 49; Certain-Teed Products Corp. v. Luke, 74 F. 2d 384 (9th Cir.), aff’g decree of U.S.D.C. Ariz.; Annot., 11 A.L.R. 246, 66 A.L.R. 1415. While the annotations recognize that cases can be found applying a more liberal rule even in the absence of statutory provision therefor (see e.g., Adams v. Hackensack Trust Co., 156 Fla. 20, 22 So. 2d 392, but see In re Williamson’s Estate, 95 So. 2d 244 (Fla.)), this minority rule is not one that we are at liberty to adopt under our — 99 — statute, which provides: “It shall not be lawful to allow any claim that is barred * * * ” (R.L.H. 1955, § 317-21). Since the executor cannot waive the bar of the statute (Estate of Thz Fo Farm, 37 Haw. 447, 454 and cases there cited) he likewise cannot be estopped to assert the bar. Eichi Oki {Spark M. Matsunaga with him on the briefs) for appellant. Martin Pence {Pence and Ushijima on the briefs) for appellees. We have all the material facts as to what occurred during the four months’ period and those facts lead to but one conclusion — that the claim was not “presented” during that period. Accordingly, the summary judgment for the defendants is affirmed.