Opinion
No. 72-064
Decided March 13, 1973. Opinion modified and as modified rehearing denied April 3, 1973. Certiorari granted May 29, 1973.
In an estate proceeding, a co-executor asserted a claim against the estate on the ground that a purported conveyance to the decedent of certain property had not been intended to be a gift by either the co-executor, the grantor, or by the decedent, the grantee. From trial court determination that the conveyance had been a gift, co-executor appealed.
Affirmed
1. EXECUTORS AND ADMINISTRATORS — Nonclaim Statute — Failure to Comply — Jurisdictional — Raised — First Time — On Appeal. Although failure of executor to comply with terms of nonclaim statute was not raised at hearing relative to his alleged claim against estate, such failure is jurisdictional and may be raised for the first time on appeal.
2. Claim by Executor — Request Appointment — Discreet Person — No Timely Claim — No Jurisdiction. Where executor who allegedly had claim against his testatrix's estate proceeded under statute by requesting appointment of discreet person, but failed to file a timely claim pursuant to terms of non-claim statute, neither trial court nor appellate court has jurisdiction over the subject matter of the claim.
Appeal from the Probate Court of the City and County of Denver, Honorable L. Paul Weadick, Judge.
Atler, Haligman and Atler, Stephen K. Yasinow, for petitioners-appellees.
Wagner and Wyers, Harold B. Wagner, for respondent-appellant.
Division II.
In letters testamentary issued October 28, 1968, Raymond Plank, Anthony Shrednik, and Noah A. Atler were duly appointed co-executors of the estate of Frances S. Plank, deceased. The notice to creditors fixed September 1, 1969, as the last day for filing claims in the estate. On April 29, 1970, these co-executors petitioned the probate court for appointment of a special fiduciary to determine whether an undivided one-half interest in certain property inventoried as an asset of the estate was, in fact, owned by Dr. Raymond Plank, decedent's husband and one of the co-executors. A special fiduciary was duly appointed to determine the validity of Dr. Plank's claim against the estate, and on June 5, 1970, he filed his report with the court, recommending that the claim be denied. On July 12 of that year the matter came on for hearing. At that time, Dr. Raymond Plank filed a response to the report of the special fiduciary, which alleged that his conveyance on September 30, 1966, of an undivided one-half interest in the property in question to his wife was not intended to be a gift by either the grantor or the grantee but a conveyance to protect his interest in the property from the demands of his former wife. Dr. Plank urged that he was the true owner of the property and that the decedent had no interest in the property at the time of her death, but merely held the title in trust for him. Dr. Plank requested that the property interest be determined to be his and not an asset of his wife's estate.
The ultimate result of the July 12 hearing was that the court determined that Dr. Plank had conveyed the property to his wife as a gift. Dr. Plank filed a motion for new trial, and from denial of that motion, he appeals.
On appeal, appellees raise the argument that the trial court was without jurisdiction to consider the matter inasmuch as Dr. Plank did not file a claim against the estate as required by C.R.S. 1963, 153-12-8, and is now barred from asserting a claim by virtue of C.R.S. 1963, 153-12-12.
C.R.S. 1963, 153-12-8, requires an executor who has a claim against his testator's estate, to file his demand with the court in the same manner as any other person. Dr. Plank proceeded under this section by requesting the appointment of a discreet person. C.R.S. 1963, 153-12-12, provides in pertinent part as follows:
"All claims, including unmatured and contingent claims, shall be filed on or before the date fixed in the notice to creditors as the last date for filing claims, and if not so filed, shall be forever barred against said estate. . . ."
Appellees argue that this language is jurisdictional and determinative of this issue and that on that basis the claim should be denied.
[1,2] Appellant counters that this issue, not having been asserted prior to or at the hearing, cannot now be raised. This contention is answered in the case of In re Estate of Randall, 166 Colo. 1, 441 P.2d 153. In that case, the Supreme Court discussed the distinction between the nonclaim statute, C.R.S. 1963, 153-12-12(1), and a statute of limitation provision.
". . . [W]hile a nonclaim statute appear to be in the nature of a statute of limitations, it is clearly not such. A nonclaim statute operates to deprive a court of jurisdiction. The personal representative of an estate can neither waive it nor toll it. Crowley v. Farmers State Bank, 109 Colo. 146, 123 P.2d 407; Haley v. Austin, 74 Colo. 571, 223 P. 43. . . . A non claim statute imposes a condition precedent to the enforcement of a right of action; that is to say, the claim must be presented within the time set in the notice to creditors or be barred. A statute of limitations, on the other hand, does not bar the right of action but only the remedy. Rogers v. Rogers, 96 Colo. 473, 44 P.2d 909. Such a statute may be tolled. Such a statute is a defense which is waived if not affirmatively pleaded. . . ." Dr. Plank failed to file a timely claim, under the provisions of C.R.S. 1963, 153-12-12(1), and neither this court nor the trial court has jurisdiction over the subject matter of the claim.
Even though the trial court had no jurisdiction to consider the merits of the claim, our examination of the record convinces us that its denial of the claim was a correct result. Metropolitan Industrial Bank v. Great Western Products Corp., 158 Colo. 198, 405 P.2d 944.
Judgment denying the claim is affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.