In re Mouillerat's Estate

De Witt, J. Section 154 of the Probate Practice Act provides: “Every claim allowed by the executor or administrator, and approved by the probate judge, or a copy thereof, as hereinafter provided, must, within thirty days thereafter, be filed in the probate court, and be ranked among the acknowledged debts of the estate, and be paid in due course of administration.” Mendenhall’s claim was allowed by the administrator and approved by the court. Appellants contend that these facts constitute a judgment, which is final, and which must be attacked by a motion for a new trial or an appeal, and which cannot be disturbed on a contest of' the account of the administrator. But such is not the law. It is a judgment of a quali — 251 — tied nature only. Such approval and allowance place the claim “among the acknowledged debts of the estate, to be paid in due course of administration.” (Magraw v. McGlynn, 26 Cal. 431; Estate of Loshe, 62 Cal. 413; Estate of Hill, 62 Cal. 186; Weihe v. Statham, 67 Cal. 84.) And “in due course of administration” the estate reaches the stage where it is operated upon by the provisions of section 265, et seq., of the Probate Practice Act. Section 265 is as follows: “ When any account is rendered for settlement, the court or judge must appoint a day for settlement thereof. The clerk must thereupon give notice thereof by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the day appointed for the settlement of tire account, which must be on. some day of a term of the court. The court or probate judge may order such further notice to be given as may be proper.” Section 267 provides for a contest, as follows: “On the day appointed, or any subsequent day to which the hearing may be postponed by the court, any person interested in the estate may appear and file his exceptions in writing to the account, and contest the same.” When this section of the statute provides that “any person interested in the estate” may contest the account, it seems to be a plain declaration that any person interested may make the contest. It would seem not open to question that a creditor was interested in the estate when the account showed the allowance of an alleged debt, which such creditor claimed to be wrongfully allowed, and the allowance of which cut down the percentage which such creditor was to receive from the estate. Such is the position of the creditors and protestants, Nixon and Crave, as to the allowance of the Mendenhall claim. Such was the course of proceeding in the lower court. Nixon and Crave contested the account, as they might, under the provisions of sections 265 and 267, etc. The allowance and approval of the claim does not seem to be in the nature of a final judgment, when the statute provides that it shall not be final, but shall be open to a contest (Probate Practice Act, § 267) of the administrator’s account. Such seems to be a very plain view — 252 — of the statute. Ou the other hand, the view contended for by appellants would leave a person desiring to contest an account remediless in many cases. Returning to the portion of the Probate Practice Act treating of the claims against the estate, we have to observe as follows: Section 154 speaks about the allowance of a claim by the administrator, and the approval by the probate judge. These acts may be dene without any hearing at all. It is true1 that section 156 provides: “When a claim is presented to the probate judge for his allowance, he may, in his discretion, examine the claimants, and others, on oath, and hear any other legal evidence touching the validity of the claim.” The judge, it is observed, may, in his discretion, examine the claimant and hear evidence; but he is not required so to do, and there is nothing to prevent him, if he happens to observe no objection to the claim, from allowing it without any hearing at all. Now, if the probate judge pursues this course, which he may under the law, and which we doubt not is the most frequent occurrence in that court, we have this situation: A claim against the estate has been allowed. Another creditor of the estate is injured thereby, for the reason that it reduces the percentage which he is to receive in case the estate does not pay its debts in full. That creditor is interested in the estate, and there is facing him, according to appellant’s view, a final judgment, which is to his injury, given without his knowledge, and without his having a day in court. There has been no hearing to which he has been invited; there has been no adjudication at which he has been notified to appear. Of course, it may be said that he can be present in the probate court, or before the probate judge, during all the period during which claims may be filed, and watch for the presentation of the claim to which he believes he has a valid objection. But we are of opinion that the law does not require any thing of this sort, especially where there is such a simple construction of the law as we have above described, which gives such a creditor an opportunity to come in upon notice upon the settlement of the administrator’s account. Furthermore, here is another view: Suppose a claim be presented, allowed, and approved without a hearing, as it mav be, — 253 — as above noted; the record would appear in this way: simply the account of the alleged creditor, supported by his ex parte affidavit, and indorsed. In fact, the indorsements upon this Mendenhall claim are as good an example as we could cite. They appear as follows: “No. 20. “In the District Court “oe “Gallatin County, Montana. “In the Matter of the Estate of “ Frank Mouillerat, Deceased. “Claim of John S. Mendenhall, $400.00. “The within claim presented to J. P. Martin, admr. of said deceased, is allowed and approved for $400.00 this 27th day of June, 1890. J. P. Martin, admr. of said deceased. “Allowed and approved for $400.00, this 23d day of March, 1891. Frank Henry, District Judge. “Filed Sept. 4, 1890. “John McLeod, Clerk, “By B. H. Craweord, Deputy Clerk.” Now, according to appellant’s view, the creditor interested in the estate, and wishing to make a contest, finds a record of the sort described, which is to be held to be a final judgment; that is to say, it is a bill or an account, with an ex parte affidavit, and the indorsements of administrator and judge, of “Allowed” and “Approved.” What could he present on a motion for a new trial or appeal? His showing of the wrongfulness of the account would not be in the record, nor would there be any evidence to review. We cannot hold such construction of the law when we have before us section 267, providing for a contest by a creditor, in which he may have a hearing. Ryan v. Kinney, 2 Mont. 454, has been mentioned in this case. In that case there was clearly an attempt to attack collaterally a final judgment of the probate court. We fully concur with the decision against that attempt. But here the allowance by the administrator, and the approval by the probate judge, of the Mendenhall claim, we have undertaken to — 254 — show, were not a final judgment, and therefore the contest of Nixon and Crave is neither directed at a final judgment nor is it a collateral attack upon what the probate court has done, but, on the contrary, it is a pursuance of the direct proceeding, provided by sectious 265-68 of the Probate Practice Act, for determining whether or not the Mendenhall claim was to be paid out of the Mouillerat estate. Ryan v. Kinney, 2 Mont. 454, did not mention or construe section 267 of the Probate Practice Act, or any similar provision, which section 267, we hold, authorizes the contest by Nixon and Crave. That section is part of the Probate Practice Act passed February 16, 1877 (10th sess., p. 370), a year after the decision of Ryan v. Kinney, 2 Mont. 454. But even if it, or a similar provision, were a part of the law when Ryan v. Kinney was decided, it would not have been before the court for construction in that case, as the proceeding was not taken under said section, or any similar thereto. And it is this section, as is apparent above, that we hold authorizes this contest. Therefore, Ryan v. Kinney, 2 Mont. 454, is not applicable to the case at bar. Appellants contend that the determination of the action in the United States court in 1885 was a judgment in favor of the United States, and against Mouillerat and his eodefendants, among whom was Mendenhall, and that Mendenhall was subrogated to the rights of the United States in that judgment. If that be true, then they contend that the statute of limitations, in reference to judgments, would apply to the Mendenhall claim, and that it would not be barred. If the United States did not obtain a judgment in the case described in the United States court, there was no judgment in which Mendenhall could be subrogated. It is clear that the United States did not obtain a judgment against Mouillerat, Olsen, Mendenhall, or Krug. The record from the United States court states plainly that that case was dismissed as compromised; and.it further appears from that record that the judgment was that the defendants go hence without delay, and recover a judgment against the plaintiff for their costs. So, there was no judgment in favor of the United States. Therefore, the most that appears is that Mendenhall paid money for the benefit of Mouillerat in 1885. — 255 — Mendenhall’s claim against Mouillerat, therefore, does not appear to be founded upon any judgment or upon any written instrument. It was therefore barred by the statute of limitations (Code Civ. Proc., § 44) in three years from September, 1885, and was consequently barred on September 4,1890, when it was filed as a claim against the Mouillerat estate. Appellants argue that the statute of limitations is a personal privilege, and that one cannot be compelled to take advantage of it unless he chooses. However true this may be as a general principle, it does not apply to the administrator in this case, for his action is controlled by section 156 of the Probate Practice Act, which provides that “no claim must be allowed by the executor or administrator, or by the probate judge, which is barred by the statute of limitations.” The judgment of the district court sustaining the protest of Nixon and Crave, and disallowing the claim of Mendenhall, is therefore affirmed. Affirmed. Pemberton, C. J., concurs.'