Opinion
No. 4515.
Argued September 4, 1956.
Decided October 2, 1956.
In the absence of a demand by an executor that a claim against the decedent's estate be submitted in writing under oath as provided by statute (RSA 554:24) a claimant may exhibit his claim by employing the method authorized by RSA 556:2 or in the alternative by giving timely notice either orally or in writing, or by a combination of both.
In an action against the estate of a deceased person for services rendered in his lifetime, the denial of liability by the executor and a refusal to settle constituted a waiver of the insufficiency of the statement of the amount and nature of the plaintiff's claim (RSA 556:1, 2, 3).
An action to recover the value of certain personal property allegedly belonging to the plaintiff and wrongfully detained by the executor of an estate, and brought by the plaintiff other than as legatee, heir or creditor, is an action against the executor and not the estate and hence the provisions of RSA 556:1-3 are not controlling.
ACTIONS OF ASSUMPSIT AND DETINUE, for Care and services rendered by the plaintiff as a housekeeper to the deceased from March 29, 1949, to October 15, 1953, and for certain articles of furniture and personal property of the plaintiff wrongfully detained by the defendant. The defendant moved that the actions be dismissed on the ground that no claim for payment had been made within the statutory one-year period as prescribed by R.L.c. 355, ss. 1, 2, 3 (now RSA 556:1, 2, 3). After hearing the motion was denied and the defendant's exception thereto was reserved and transferred by Sullivan, J.
The testator died March 24, 1954, and the defendant was appointed executor of the will on April 27, 1954. The three publications of the notice of appointment were completed on May 27, 1954. The plaintiff's attorney entered an appearance in the probate court in behalf of the plaintiff in August 1954, and brought the present action in July 1955.
It appeared from the plaintiff's evidence that within two months of the defendant's appointment as executor she had two conversations with him in which she "asked what [she] would get for taking care" of the testator and that in each instance the defendant said that the plaintiff "wouldn't get anything." The defendant denied that the plaintiff had ever sought compensation for services rendered the testator and testified that the plaintiff in his presence took away the furniture which belonged to her, and that the rest of it "wasn't worth anything anyway" and "went to the dump."
Nelson Lynch (Mr. Lynch orally), for the plaintiff.
Leonard G. Velishka and Aaron A. Harkaway (Mr. Harkaway orally), for the defendant.
RSA 556:1, 3, provide that no action shall be sustained against an administrator unless a demand was exhibited to him within one year after the original grant of administration and payment has been demanded. One method of complying with these requirements is prescribed by RSA 556:2 which reads as follows: "NOTICE OF CLAIM. A notice sent to the administrator or his agent by registered mail, setting forth the nature and amount of the claim and a demand for payment, shall be deemed a sufficient exhibition and demand." This method is not exclusive since it has been settled law for a long period of time in this state that the claim may be oral, written, or a combination of both. Ayer v. Chadwick, 66 N.H. 385; Watson v. Carvelle, 82 N.H. 453; Hurd v. Varney, 83 N.H. 467. RSA 554:24 gives the administrator authority to require that any claim against an estate shall be submitted in writing under oath. In the present case it is undisputed that no claim in writing was filed and none demanded by the executor.
The purpose of RSA 556:1, 2, 3, is to provide a definite short period of one year in which claims against the estate may be presented as a means "to secure the orderly and expeditious settlement of estates." Sullivan v. Marshall, 93 N.H. 456, 458; Hall v. Brusseau, 100 N.H. 87, 89; Reconstruction c. Corp. v. Faulkner, 100 N.H. 192, 193. It is recognized, however, that the conduct of the executor or administrator may be such that failure to comply with these statutory provisions may be waived or result in an estoppel to assert the insufficiency of the demand. In Jaffrey v. Smith, 76 N.H. 168, 173, it was pointed out that a fiduciary "may . . . so conduct himself during the time allowed for the exhibition of the claim that he will thereafter be estopped to deny the sufficiency of the exhibition." In Dewey v. Noyes, 76 N.H. 493, the formal exhibition and demand of the claim was waived because the administrator absolutely refused to pay the claim after it was explained to him. An executor has a right to be informed of the creditor's claim (Emerson's Sons v. Cloutman, 88 N.H. 59, 62) but he may lose this right by denying liability in advance of the presentation of the creditor's claim. In Watson v. Carvelle, 82 N.H. 453, 457, the failure to exhibit the claim was not excused because there "was neither denial nor recognition of liability and neither promise nor refusal to settle."
In the present case the Court could and did find that there was a denial of liability and a refusal to settle which would constitute a waiver of the insufficiency of the statement of the amount and nature of the plaintiff's claim.
If this were a case of first impression more weight could be given to the argument that the doctrine of waiver and estoppel as applied to the presentation of claims militates against the expeditious settlement of estates and may penalize the beneficiaries of the estate for the conduct of the executor or administrator. However, the ruling of the Trial Court in this case followed the long established law as administered in this jurisdiction and we see no reason to disturb it unless and until the statute is amended.
The plaintiff's action for the value of certain personal property which was allegedly hers has not been argued by either counsel. This action is not controlled by RSA 556:1-3 since it involves no claim by the plaintiff as a legatee, heir or creditor. Rice v. Connelly, 71 N.H. 382. Such a claim is against the defendant but not against the estate. Anno. 42 A.L.R. (2d) 418.
The Trial Court's denial of the motion was justified on the evidence and involves no error of law.
Exception overruled.
All concurred.