Opinion
No. 75-228
Decided January 2, 1976. Rehearing denied January 29, 1976. Certiorari granted April 5, 1976.
Probate court vacated its previous appointment of a special administrator of the estate of a decedent against which estate a negligence action had been initiated. Claimants in the negligence action appealed.
Affirmed
1. EXECUTORS AND ADMINISTRATORS — Negligence Action Claimants — Creditors of Decedent's Estate — Application Untimely — Letters of Administration — Appointment of Special Administrator — Exceeded Jurisdiction — Probate Court. Claimants in negligence action instituted against the estate of a decedent were creditors for the purpose of the applicable statute barring creditors from applying for letters of administration more than one year after death occurs, and probate court therefore properly concluded that it had exceeded its jurisdiction in appointing a special administrator for the benefit of creditors after the statutory period had run.
Appeal from the Probate Court of the City and County of Denver, Honorable Stewart A. Shafer, Judge.
Dawson, Nagel, Sherman Howard, Michael A. Williams, H. Clay Whitlow, for respondent-appellant Carolyn Kropp.
Creamer Halaby, P.C., Theodore S. Halaby, for respondent-appellant Patricia Lea Pecaut.
DeMoulin, Anderson, Campbell Laugesen, Laird Campbell, for petitioner-appellee.
Division II.
Upon the petition of appellee Farmers Insurance Exchange (Farmers), the probate court vacated the appointment of Andrew Wysowatcky, then Public Administrator for the City and County of Denver, as special administrator of the estate of Maxine Wehling. Kropp and Pecaut appeal from that order. We affirm.
Wehling died as a result of an automobile collision on June 15, 1972. Kropp was a passenger in the Wehling vehicle; Pecaut was the driver of another car involved in the accident.
At the time of the accident, Wehling was a resident of Denver. Several days after the accident, her parents, who were residents of Nebraska, filed a petition under the Small Estates Act, C.R.S. 1963, 153-7-4, listing as the assets of the estate small sums of money in a checking and a savings account. A liability insurance policy issued by Farmers to Wehling, which was in effect at the time of collision, was not listed as an asset in the petition. An order was entered June 26, 1972, distributing the Wehling estate to her parents. No letters testamentary or of administration were ever issued, nor was any notice given to creditors. The order of distribution was never challenged; no petition to revoke was filed with respect to the order within the one-month period provided by 1971 Perm. Supp., C.R.S. 1963, 153-7-4(8).
On June 28, 1974, apparently at the instigation of Kropp, the probate court appointed Wysowatcky special administrator of the Wehling estate pursuant to his petition in the capacity of public administrator. On July 16th of that year, Kropp instituted suit in district court against Wysowatcky as special administrator of the Wehling estate, and against Pecaut; Pecaut filed a cross-claim for indemnification against Wysowatcky.
Farmers then filed a petition in the probate court to vacate the appointment of Wysowatcky, contending that the appointment was beyond the jurisdiction of the court since no letters of administration had issued within one year of death, and that therefore, C.R.S. 1963, 153-7-2 and 153-7-3 prohibited the appointment of any administrator at the behest of a creditor, such as Kropp.
The probate court concluded that it had exceeded its jurisdiction in making the appointment of a special administrator for the benefit of creditors, and that therefore, the appointment was void and must be vacated. Kropp and Pecaut contest this ruling.
Critical to this litigation are C.R.S. 1963, 153-7-2 and 153-7-3. The former provides that:
"In case letters testamentary or of administration shall not have been theretofore issued upon the request of any other person, creditors of any person hereafter dying may apply for administration of his estate within one year after the date of decease, but not afterwards. No such creditor shall be entitled to apply for administration of such estate after his claim is barred by any general statute of limitations of this state. This section and section 153-7-3 shall not prevent any creditor who is also an heir, legatee or devisee from exercising his right as such heir, but shall affect his right as creditor only."
The relevant portions of the latter statute are as follows:
"If such letters are not issued within the time specified, all claims of creditors shall be forever barred, and the purchasers of the property of the deceased from the heirs of the deceased shall in such case take the same free from any lien of the claims of the creditors."
The effect of these two statutes is to force creditors to apply for letters of administration within one year or have their claim barred. See Baker v. Allen, 34 Colo. App. 363, 528 P.2d 922. There having been no issuance of letters of administration within the statutory period, it then follows that a creditor may no longer apply for issuance of such letters, and that the creditor's claim is barred.
[1] It is apparent that Kropp and Pecaut are creditors since the only alternative classification is that of heir, a status which neither claim, and that therefore neither of them could be appointed special administrator of Wehling's estate. Wheat v. Fidelity Casualty Co., 128 Colo. 236, 261 P.2d 493. Although the special administrator in this case is not personally a creditor, his position is such that he is, in effect, a mere nominee of Kropp and Pecaut. Since the direct appointment of a creditor under these circumstances is beyond the jurisdiction of the probate court under Wheat and under C.R.S. 1963, 153-7-2, and since the claims of Kropp and Pecaut are barred under C.R.S. 1963, 153-7-3, the appointment of Wysowatcky was improper, and the probate court prudently corrected its error.
Kropp and Pecaut contend, however, that the appointment was valid, and is precluded neither by Wheat nor by C.R.S. 1963, 153-7-2, and 153-7-3. They cite McKenzie v. Crook, 110 Colo. 29, 129 P.2d 906, and Ohmie v. Martinez, 141 Colo. 480, 349 P.2d 131. These cases are inapposite. They are authority only that, had letters of administration been issued, then the failure to file a claim in probate court within the period prescribed in C.R.S. 1963, 153-12-12, or its predecessor statutes, would not preclude a district court suit against the personal representative. Cf. Koon v. Barmettler, 134 Colo. 221, 301 P.2d 713; and Meyers v. Williams, 137 Colo. 325, 324 P.2d 788. See also § 15-12-804(2), C.R.S. 1973. In both McKenzie and Ohmie, letters of administration were issued within one year after the date of death.
Kropp and Pecaut also contend that regardless of the law in effect at the time these proceedings were initiated, we should reverse the lower court because its rulings are inconsistent with present law and public policy. We do not agree.
Although the Colorado Probate Code does away with the requirements that administration be initiated within one year after date of death, and further provides that the limitations on time of presentment of claims do not apply to actions on liability insurance policies issued to the decedent, § 15-12-803(3)(b), C.R.S. 1973, this statute was not in effect at the time of the events in question. It also represents substantial change in Colorado law, not merely a codification of existing law and public policy.
Moreover, the Colorado Probate Code has time limitations of its own which similarly restrict the remedies available to creditors and other claimants. See, e.g., §§ 15-12-803 and 15-12-108, C.R.S. 1973. The Colorado Probate Code cannot be deemed, therefore, to indicate a legislative intent to eradicate all such limitations. In this regard, we note that the court in Wheat implicitly did not find such statutory limitations to be contrary to public policy.
Judgment affirmed.
JUDGE ENOCH and JUDGE KELLY concur.