IN RE: LUCAS' ESTATE.

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District Court of Appeal, Second District, Division 1, California.

IN RE: LUCAS' ESTATE. FEW v. BROWN.

Civ. 13906.

Decided: June 24, 1943

Edgar T. Fee, of Los Angeles, for appellant. J. H. O'Connor, County Counsel, and Ernest Purdum, Deputy County Counsel, both of Los Angeles, for respondent.

Respondent has petitioned for a rehearing in the above–entitled matter. Only the following points raised in the petition need be discussed, the others having already been sufficiently covered by the opinion herein. Respondent contends that the decision of this court nullifies the act of the legislature in enacting section 718.5 of the Probate Code; and that this court has ignored one of its own prior decisions on the question.

Respondent points out that section 718.5 grants authority to compromise “any claim against the estate” or “any suit”, and calls attention to the fact that section 718.5 was passed by the legislature some years after the enactment of section 708; that therefore if there is any inconsistency between the provisions of the two sections those of the later statute must prevail. Sections 708 and 718.5 of the Probate Code, relating as they do to the same general subject of claims in probate, are in pari materia and must be read and construed together, although they may have been passed at different times. The rule involved is well established and amply supported by authority.

Respondent contends that the decision in the present case is contrary to and inconsistent with that in Re Estate of Dobkin, 38 Cal.App.2d 276, 100 P.2d 1091, 1092. The Dobkin case involved an appeal from an order and decree of final distribution, the appeal having been taken by an objecting creditor on the ground that two claims had been improperly allowed in the final account. The claims had been first rejected, suits were filed thereon and the representative of the estate interposed answers in the said suits. Thereafter a petition was presented to the probate court for permission to approve the claims thus sued upon, and the petition was granted. This court upheld the procedure there involved as proper under section 718.5, supra, stating: “* * * the sole question for consideration is whether the court had authority to approve the two claims which had been first disallowed and thereafter approved by the court upon petition of the executrix after suit had been filed thereon.” While the Dobkin case is similar to the one at bar, in that both are concerned with situations wherein compromise or settlement of a claim was approved by the probate court at a time when a suit on the claim was pending, it must be pointed out that in the Dobkin case the question of the propriety of such procedure was directly presented to this court and there passed upon; but in the present case the decision is not concerned with that question. The question here presented is whether the probate court may approve the compromise of a claim without passing upon the effect of the bar of the statute of limitations, when that question has been brought to the attention of the court; and the decision made here is based upon the answer to that question alone. While the effect of the pending suit upon the probate court's power to approve the compromise presents an interesting phase of the case, it is not necessary here to pass upon this point; and it should also be mentioned that the precise point has not been raised.

It is true that in Re Estate of Dobkin, supra, this court stated that even though the claim were not a good claim in itself the authority for the court's action in compromising it is directly based upon section 718.5, supra. The statement, however, is merely dictum and was not necessary to a decision in the Dobkin case. The District Court of Appeal for the Third Appellate District has directly decided that the representative of an estate may not compromise an invalid or unenforceable claim, in Re Guardianship of Carlon, 43 Cal.App.2d 204, 110 P.2d 488, (petition for hearing denied by the Supreme Court, April 24, 1941). The Carlon case was concerned with the provisions of section 1530a of the Probate Code, providing that a guardian, with the approval of the court, may compromise any claim against the estate or any suit brought against the guardian as such; but the principles there discussed and the decision there reached apply with equal force to the matter of the compromise of a claim by an administrator of an estate under section 718.5 of the Probate Code.

The difficulty in the case at bar is that it appears from the record that the probate court approved the compromise of the claim in question upon the ground that all objections to the compromise had either been withdrawn or waived. But the question of the bar of the statute of limitations had already been raised and had been properly called to the attention of the court. The bar of the statute of limitations may not be waived as against an estate. The effect of the order of the probate court here is to waive the question of the bar of the statute. The effect of the decision of this court is that the question as to the bar of the statute of limitations must be determined directly and effectively before the compromise of a claim objected to on such grounds may be approved. Whether the probate court has the power to try and pass judgment on an issue pending in a valid action before the same court but in another department thereof, is not here decided. In Kohn v. Rupley, 54 Cal.App. 565, 202 P. 163, the appellate court was able to assume upon the record that the probate court had passed upon the question of the bar of the statute, but in the present case, upon the record before this court, the contrary appears true, and this court would not be warranted in indulging in any such assumption. The question then is not whether the probate court correctly decided the question as to the application of the statute, but whether there is any justifiable basis for assuming that the probate court, or some other department of the court, passed upon the question at all. As far as the record herein discloses, neither the probate court nor any other department of the superior court has ever decided whether the statute of limitations is in fact and in law a bar to the claim in question. Assuming, therefore, but not deciding, as above noted in substance, that the probate court in the circumstances has the power to pass judgment on that issue, the matter is remanded for further consideration.

Accordingly, the order heretofore made herein is hereby modified to read as follows:

The order settling and approving the final account of the administrator herein is reversed, appellant to have costs on appeal; and the matter is remanded for further consideration.

The petition for a rehearing is denied.

PER CURIAM.