On appeal from the Supreme Court.
For the plaintiff-respondent, James J. McGoogan.
For the defendant-appellant, Aaron V. Dawes.
The opinion of the court was delivered by
CASE, J. Edythe Miller, wife of Frederick Miller, is the daughter of John Seipel, who died April 25th, 1928, and of whose last will and testament Linton S. Marshall is the duly qualified executor. On May 21st, 1928, Mrs. Miller [113 NJL Page 421] filed with the executor a proof of claim setting forth an indebtedness of $1,300 said to be due to her for board and lodging furnished by her to her father between April 3d, 1925, and February 12th, 1928, during the latter's lifetime. On March 29th, 1929, the executor notified Mrs. Miller that her claim was disallowed and that payment thereof was refused. Thereupon, on or about April 8th, 1929, Mrs. Miller began the present action. On March 18th, 1932, the cause came on for trial before the judge, sitting without a jury, in the Mercer Circuit. At the close of the trial several motions were pending, among them one on behalf of the defendant that the plaintiff be nonsuited because her husband, who died March 24th, 1928, was, as appeared without contradiction, living, and the head of the household where the services were rendered, throughout the entire period covered by the claim, and that there was, therefore, no suable obligation owing to Mrs. Miller. The court took the case, including the pending motion, under advisement. Subsequent steps in the proceeding chronologically stated are as follows: On April 1st, 1932, Mrs. Miller was appointed as administratrix of the estate of her husband, Frederick Miller. On July 15th, 1932, a rule of court was made on the application of the plaintiff, apparently as an ex parte matter, giving leave for the complaint to be amended to permit the plaintiff to recover either in her own name or, in the alternative, in the name of Edythe Miller, administratrix of Frederick Miller, deceased; this being occasioned seemingly by Supreme Court rule 21 (c), which provides that "claims by or against any executor or administrator, as such, must not (without leave of court) be joined with claims by or against him personally, unless the latter claims arose with reference to the estate of his testator or intestate." On July 20th, 1932, an amended complaint was accordingly filed retaining Mrs. Miller's personal claim as count 1, and by counts 2 and 3 setting up an alternative claim by Mrs. Miller as administratrix, the administratrix pleading that she had presented her claim and that the claim had been disallowed. On July 20th, 1932, the defendant answered the amended complaint and denied that the administratrix
had filed a claim; whereupon on July 29th, 1932, the administratrix delivered to the executor a claim, designated "amended proof of claim of Edythe Miller, as administratrix of Frederick Miller, deceased," setting up the debt as owing to her husband's estate. The answer to the amended complaint also stated the conceded fact that on May 9th, 1928, the surrogate of the county of Mercer ordered the statutory publication of notice requiring creditors to file their claims within six months thereafter, and pursuant thereto, on November 10th, 1928, further decreed that all creditors of the estate who had not brought in their claims within the time limited in the earlier order were barred from any action against the executor. Upon that allegation of fact and the further charge that the administratrix had not within the prescribed time brought in her debt, the defendant set up the defense that the estate of Frederick Miller was barred from any action against him upon its alleged claim. A deficient record leaves us uninformed as to what next occurred after the completion of the amended pleadings; but we gather from an opinion filed by the trial judge there was a procedure equivalent to the calling of a jury, the withdrawal of a juror, and the declaring of a mistrial, followed by a stipulation between the parties that the matter be determined by the court on the facts theretofore presented. A postea was filed August 24th, 1932, wherein the court found for the plaintiff, Edythe Miller, administratrix of Frederick Miller, deceased, in the sum of $1,725.75, with costs, the award being for the $1,300 claim plus interest. Judgment was entered November 22d, 1933. Defendant appeals.
The various steps in the cause and their chronology have been stated in detail because the disposition is largely dependent thereon.
Appellant's first point is that the second proof of claim, designated an amended claim, is without statutory authority. The statutory directions as to rules limiting creditors, presentation of claims and barring of suits are to be found in section 67 (amended P.L. 1927, ch. 192), of the Orphans Court act and the sections immediately following. 3 Comp. Stat., pp.
3833 et seq. By section 70 it is provided that upon the making of the final decree (viz., in the instant case the decree of November 10th, 1928, supra), "any creditor who shall have neglected to bring in his debt, demand or claim within the time so limited, shall, by such decree, be forever barred of his or her action therefor against such executor or administrator," except that after final settlement relief may be had under certain circumstances. The exception does not concern us because there has been no final settlement of the account of the executor. That such a decree bars creditors of their right of action against an executor or administrator on all claims that might have been presented within the time limit, and were not, is settled. Ryan v. Flanagan, Administratrix, 38 N.J.L. 161; Ray Estate Corp. v. Steelman, 90 Id. 184; Hackensack Trust Co. v. Van Den Berg, 92 Id. 412.
Although the proof of claim filed by the administratrix is entitled as we have stated, it is clear that it is not, and was not intended to be, a substitution. It was intended to be that which had not theretofore been accomplished or even attempted, namely, a submitting of proof of claim by the estate of Frederick Miller. The question before us is not whether Mrs. Miller individually might file an amended proof to correct some imperfection or inaccuracy in her original claim. We have to deal with a new claimant, a proponent of a claim that was not in substitution of, but was an alternative existing along with, a claim already filed.
We pass over the significant circumstance that the proof of claim upon which the plaintiff administratrix relies had not in fact been served at the time the complaint thereon was filed and go to the more fundamental question of whether the statutory procedure essential to a recovery has been complied with. The provisions of the Orphans Court act regarding the proof and barring of claims are not a part of the Practice act and do not directly benefit by the more liberal practice regarding the amendment of pleadings. The trend of our cases permitting pleadings to be ...