Sunberg v. Sebelius

Grace, J. This action is one involving recovery on a certain promissory note dated January 19, 1915, and due October 1, 1915, with interest thereon at 10 per cent from date until paid. The complaint alleges the note to have been executed and delivered by August Sebelius and G. A. Sebelius to the Farmers & Merchants Bank of Overly, and by them, for value received, indorsed and transferred to the plaintiff prior to October 1, 1915. Plaintiff further shows-that August- Sebelius died testate prior to December 18, 1915; and further alleges the appointment of Mary Sebelius, surviving widow of August Sebelius, as the executrix of the last will of the deceased, which appointment was alleged to have been on December 18, 1915. The answer denies the execution of the note and the transfer thereof by the bank to the plaintiff. The remainder of the answer makes a further denial of the allegations of, the complaint, which we will notice more specifically in a subsequent portion of this opinion, where the pleadings will be more fully analyzed. The facts are substantially as follows: The action was commenced in Bottineau county on the 22d day of July, 1916, by the service of the summons upon Mary Sebelius as executrix. Mary Sebelius published notice to creditors, the first publication of which was on March 23, 1916. The plaintiff claims a presentment of the claim for the — 416 — .amount of tbe note in question to tbe executrix on tbe 23d day of May, 1916, and a second and subsequent presentment of such claim to the executrix just prior to the commencement of this action. The defendant claims that no due presentment of such claim was ever made to her, as required by law, and this is one of the disputed questions in the case. Tho appellant further claims that the plaintiff holds a renewal note of the note in question, and therefore is not entitled to present the old note without a surrender of the renewal note. The first matter for our consideration is an analysis of the pleadings for the purpose of determining what issues were really formed by such pleadings. As pleadings, neither the complaint nor the answer are in the form which they should be. In the complaint there is a want of ■certainty and clearness of allegation. There is nothing therein to show that the presentment of the claim alleged to have been made ■on May 23, 1916, was presented and rejected in the manner provided by law, and the same is true of the second alleged presentment, and nothing to show the necessity of the second presentment of such claim. The theory of the plaintiff, as well as the court below in its decision, was that the allegation in the complaint relating to the second presentment of the claim was not denied by the answer, and was therefore admitted by such answer to have been presented as required by law. "We think this theory is not sound, and not justified upon a close inspection -of the pleadings, when considered in the light of the rule that pleadings are to be always liberally construed. When the denials in the answer are considered with the allegations in the complaint relating to the presentment of the claim, such denial in the answer will be found sufficient to be a denial of both the first and second presentments of the claim. The complaint contains this allegation relating to the first presentment of the claim: “That on or about May 23, 1916, and prior to the expiration of six months after publication of notice to creditors by defendant, a duly verified proof of claim of the said promissory note, executed by the said plaintiff and supported by his affidavit, made in accordance with the law, was presented to the said ■executrix, who then and there rejected and disallowed said claim.” It is conceded by the plaintiff that the denial in the answer denies this particular allegation. It is, however, claimed that such denial does not reach the allegation relating to the second presentment, which is as — 417 — ■follows: “That thereafter, and prior to the commencement of this action, the said claim was again presented to the said executrix, and that she again disallowed and rejected the same, and so notified the plaintiff.” It is true the defendant did not, by a separate reference or denial •specifically directed towards the allegation concerning the second presentment of the claim, deny the same; but when we consider the language of the plaintiff relating to- the first presentment of the claim, which does not allege with certainty when the claim was presented, but says, on or about the 23d day of May, 1916, and immediately followed by the following clause, “and prior to the expiration of six months after publication of notice to creditors,” it really means that the claim was presented within six months after the notice to creditors was given. The denial to this part of the complaint really in effect denies that any •claim was presented to the executrix within six months after the publication of the notice to creditors. The denial that any claim was presented within six months would be broad enough to include also the second presentment of the claim, which was prior to the time of the commencement of this action and less than six months after the notice to creditors. In fact, each presentment of the claim was made, if at all, within less than four months after the notice to creditors. If this were the only point involved, we would have no trouble in holding that the denial in this case is broad enough to deny each alleged presentment of the claim; and as far as that point is material in this case, we hold that the answer is a sufficient denial of each presentment of the claim. The method of pleading specific denial as used in the answer is not to be commended, and certainly is not in accord with any well-recognized rule of pleading. The principal question in this case is, Was either of the presentments •of the claim alleged in the complaint sufficient compliance with the requirements of law relative to the presentment of such claims ? Section 8740, Compiled Laws of 1913, prescribes the manner in which a •claim shall be presented to the executor of the will of a deceased person ■or the administrator of a deceased person’s estate. Such section is as follows: “Indorsement of allowance or rejection. How made. When a claim accompanied by the affidavit required in this chapter is presented to — 418 — the executor or administrator, he must indorse thereon his allowance or rejection with the day and date thereof. If he allows the claim it must be-presented to the county judge for his approval, who must, in the same manner, indorse upon it his allowance or rejection. If the executor or administrator, or the judge, refuses or neglects to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect is equivalent to a rejection on the tenth day; and if the presentation be made by a notary, the certificate of such notary, under seal, is prima facie evidence of such presentation and rejection. If the claim be presented to the executor or administrator before the expiration of the time limited for the presentation of claims, the same is presented in time, though acted upon by the executor or administrator, and by the judge, after the expiration of such time. When a claim stating the postoifice address of the claimant has been rejected, either by executor or administrator, or county judge, whether by indorsement or by nonaction, the person to whom the claim was presented must serve notice of such rejection, said notice to be by personal service or registered mail upon the claimant.” This section means that there are two ways in which an executor or administrator may accept or reject a claim. First, by the written indorsement of their acceptance or rejection, upon such claim. Second, by neglect or refusal of the executor or administrator for a period of ten days to indorse allowance or rejection upon such claim. It is clear, therefore, that the executor or administrator has all of the ten days in which to act, either to accept or reject the claim in the manner prescribed by law. No action would be maintainable or could be commenced within such ten-day period against the executor or administrator to recover upon such claim. A claim, when in due form according to law, is not presented to the executor or administrator by simply exhibiting it or describing it to the executor or administrator. The claim not only must be in due form as required by law, but to be presented it must be handed to or left with the executor or administrator, and from the time of the handing to or leaving with the executor Dr administrator of such claim, such executor or administrator would have ten days in which to allow or reject such claim in the manner provided by § 8740, Compiled Laws of 1913. The ten-day period — 419 — allowed by law for tbe claim to remain with tbe executor or administrator before any action may be maintained thereon is for the purpose of giving sucb executor or administrator an opportunity and time to examine into tbe merits of tbe claim, to investigate it, inquire about it, and determine in their mind whether or not tbe claim is of sucb a character that it ought to be allowed or rejected as tbe ease may be. Adverting at this time to tbe alleged second presentment of tbe claim in question in tbe month of July, 1916, we are clear that sucb claim as a matter of law was never at sucb time legally presented. It was not at sucb time banded to or left with tbe executrix. Tbe testimony of Mr. Sunberg with reference to tbe second presentment of tbe claim in .question in July shows conclusively that be did not leave a copy of tbe claim in question with tbe executrix. Tbe second alleged presentment of this claim, therefore, need not be further considered, as tbe same was not presented in accordance with tbe law relative thereto, and was entirely illegal and void. There remains to be considered only tbe first presentment of tbe claim. An examination of the testimony relating to tbe first presentment of this claim convinces us that sucb claim was duly presented to tbe executrix by banding to and leaving with her a copy of sucb claim with tbe proper affidavit attached thereto; that'she failed and neglected to indorse sucb allowance or rejection within ten days after tbe claim bad been presented to her, which refusal and neglect was equivalent to a rejection. Tbe action to recover upon tbe claim was not commenced until long after tbe ten-day period bad expired after tbe first presentment of tbe claim. Mary Sebelius, tbe executrix, was called by tbe opposite party; and, we think from an examination of her testimony, tbe effect thereof is to admit that one A. R. Thompson sometime during tbe month of May delivered to her a duplicate of “exhibit 2,” which is tbe proof of claim by affidavit, to which is attached a copy of “exhibit 1,” tbe note or claim in question. Whether tbe duplicate of “exhibit 2” was banded to her by Thompson tbe day be was at tbe bouse in May, or sometime in May at tbe bank, is not material. Tbe main question is, Did Thompson band to and leave with her a duplicate of “exhibit 2 .We think her own testimony so shows. — 420 — Some of the testimony given by Mary Sebelius, which almost conclusively proves that she received a copy or duplicate of “exhibit 2,” is shown by her testimony, which is as follows: Q. Did you look at the paper Mr. Thompson gave you? A. No, I don’t look at it. He say that is a copy of the note and you must understand that is a copy of the note. Q. Copy of the note attached like that is here to this “exhibit 2 ?” A. Yes. Q. Did you look at the copy of the note that was on the paper ? A. He just showed it to me. Q. He gave you the paper ? A. Yes. Q. And you took it home with you ? A. Yes. She further testified that she took this paper up to show it to Mr. Gooler, but he was not at home, and she took the paper home again. Afterwards she could not find the paper. We think this testimony is quite conclusive that the claim was properly presented to and left with Mary Sebelius, the executrix, sometime during the month of May, 1916. “Exhibit 2” is in evidence. On the margin thereof is written the following language, with what appears from the writing to be an indelible pencil: “Copy of this presented and delivered to Mrs. Sebelius May 23, 1916. A. E. Thompson.” A. E. Thompson is the one who Mary Sebelius testified was out to her place in May. There is no proof in the record that the marginal notation was written thereon by A. E. Thompson, or that he signed his name thereto, and it may not have much weight when examined in the light of the rules of evidence, but it may be considered, however, a circumstance, when considered in the light of the testimony given by Mary Sebelius, the executrix, tending to show a delivery of a copy of the claim to Mary Sebelius in May, 1916. We are convinced that the testimony shows a proper presentment of this claim as required by law to Mary Sebelius as such executrix sometime in May, 1916, and that no action was commenced against her until after the expiration of ten days after the presentment of such claim, but was commenced within four months after such presentment. There has been some question raised in this case concerning the four — 421 — months/ and six months/ period allowed by law in which creditors may present claims, there being no testimony to show what the value of the estate was. The law is, under § 8734, Compiled Laws of 1913, that if the estate exceeds in value $5,000 the time expressed in the notice to creditors must allow six months for presentation of claims against the estate; if $5,000 or less, the time allowed would be four months. In any event, in this case the claim was presented within four months, and the suit was properly and timely brought upon the rejection of such claim. The appellant also invokes § 7871, Compiled Laws of 1913, claiming that Mary Sebelius, the executrix, was incompetent to testify, and therefore her testimony was of no force and effect, and has no probative value. Subdivision 2 of such section is relied upon by the appellant, which is in part as follows: “In civil action or proceeding by or against executors, administrators, heirs at law, or next of kin, in, which judgment may be rendered or ordered entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party. It will be noticed in this case that the executrix was called by the opposite party. She thus came within the exception, and her testimony was competent. In any event, the plaintiff in this case had no transaction with the decedent. Whatever transaction he had was with the bank from, whom he purchased the note in question, and the cashier of the bank from whom he purchased the note was a proper witness and was not disqualified under § 7871, and was under no disability to testify to the execution and delivery of such note. Sunberg testified as to the purchase of the note, and the amount of money which he paid for the note, which was $1,700. There is no showing but that he purchased the note in good faith and is a holder for value. The testimony shows that he is a holder for value. Considering appellant’s claim that there is a new note outstanding of “-exhibit 1,” the note or claim under consideration, we conclude, that is not a matter which is involved in this action. If there is a renewal note outstanding of the note in question, or if it should ever appear that the bank indorsed and transferred such original note for the purpose of avoiding any defenses, which matter is referred to in the opinion of the trial court, which is a part of the record, the appellant proba — 422 — bly has her remedy at law or otherwise to reach any such conditions, if they exist, but so far as the record in this case is concerned, we have only to consider the proper and legal presentment of the claim in question to the executrix, and other questions germane thereto. The motive, if any, of the bank in making such transfer of the note to Sunberg, its desire to cast off defenses, if any, to such note, its fraud, if any, is not presented to us in this case; the bank is not a party to this action. So far as this record shows, Sunberg purchased said note in good faith before maturity thereof for'value, from such bank. The judgment is affirmed, with costs.