WINDER v. WINDER (1940)

From a judgment in favor of plaintiff after trial before the court without a jury predicated upon a claim of plaintiff against the estate of Ray Elizabeth Winder, deceased, defendant appeals.

The material facts are:

March 25, 1938, plaintiff and his brother John R. Winder were appointed coexecutors of the estate of their deceased mother, Ray Elizabeth Winder. April 6, 1938, was the date of the first publication of notice to creditors. June 23, 1938, plaintiff prepared a creditor's claim against the estate of decedent for the reasonable value of services rendered to decedent during her lifetime, pursuant to an agreement between plaintiff and decedent. This claim on the date just mentioned was presented to John R. Winder by plaintiff, which claim on July 24, 1938, was rejected by said coexecutor of plaintiff. September 23, 1938, plaintiff filed the present action, which, upon a complaint as amended after trial resulted in the judgment from which this appeal is taken.

This is the sole question necessary for us to determine:

Did plaintiff's complaint as amended fail to state a cause of action, as it failed to allege compliance with the provisions of section 703 of the Probate Code?

This question must be answered in the affirmative. Where a coexecutor has a claim against an estate, the claim must be filed with the clerk of the court, who in turn shall present it to the probate judge for allowance or rejection. If the claim is rejected by the probate judge, an action may be filed against the estate by the claimant, in which event the summons must be served upon the probate judge, who shall appoint an attorney at the expense of the estate to defend the action. Sec. 703 Probate Code; Estate of Norins, 108 P.2d 64, filed in the clerk's office of the District Court of Appeal, Second Appellate District, Division Two, December 13, 1940.

In making it the duty of the judge to appoint an attorney to defend an action filed against an estate, the legislature provided a safeguard against collusion between coexecutors. In the absence of such a provision, the way would be open for co-executors to approve each other's claims and, notwithstanding rejection by the judge, to fail to furnish a proper defense to the actions subsequently filed.

As the complaint in the present case did not allege, nor did the evidence disclose, that the procedure above outlined was followed by plaintiff, the complaint failed to state a cause of action, and evidence was lacking upon a material element necessarily involved in the present suit.

For the foregoing reasons the judgment is reversed.

McCOMB, Justice.

We concur: MOORE, P.J.; WOOD, J.