HRS 0531-0021 ANNOTATIONS

Family allowances.

Written application for allowance and notice thereof not jurisdictional requisites but heirs and creditors without notice of the application may object to the award at a subsequent time. 34 H. 263.

Allowance will be awarded only to the lawful widow and legitimate children. 31 H. 469, reh'g den. 31 H. 533.

Inventory of estate.

Inventory to set out entire assets, whether actually in possession of executor or not. 2 H. 681, 688.

Inventory is prima facie evidence of property that has come under the control of the executor. 2 H. 681, 688.

Duty of administrator to inventory land in decedent's name though he claims the property under a contract. 44 H. 464, 480, 357 P.2d 110.

Under prior law, real estate not required to be inventoried. 19 H. 620, 624.

Creditors' claims, generally.

Publication of notice by temporary administrator does not relieve executors, when appointed, of duty to advertise. 32 H. 683.

Where claim is undisputed but there is a dispute as to amount of dividend to be paid on the claim, probate judge may order payment of amount determined by him on pain of contempt. 19 H. 232.

Alimony in gross is a provable claim. 33 H. 690.

Since creditor may apply for administration that provides means for creditor to protect himself and common law rule of executor de son tort will not be applied. 5 H. 664.

Form: No statutory requirement as to form; essential requirements reviewed. 9 H. 299, 302; 26 H. 615; 45 H. 90, 363 P.2d 1006.

Administrator not authorized to pay claim not presented according to law. 17 H. 514, 516; 37 H. 447, 454; 45 H. 90, 363 P.2d 1006. But widow who, prior to appointment of administrator, applied proceeds of property of decedent to payment of creditors of decedent, not liable to administrator when the claims were just and when remaining assets sufficient to pay other creditors even though creditors paid by the widow never presented their claims. 28 H. 203.

Widow not required to present claim for funeral expenses and debts paid prior to appointment of administrator; widow may use such payments as defense to action against her brought to recover moneys of the estate. 28 H. 203; 40 H. 238, 242.

Executor's knowledge of claim will not excuse presentation; to "present" claim creditor must seek payment out of estate. 45 H. 90, 363 P.2d 1006.

Right to foreclose on security though claim not presented recognized even before addition of last sentence. See 3 H. 477, 478; 14 H. 527, 529; 17 H. 49, 52. No duty to heirs of deceased mortgagor to present claim. 7 H. 49, 52. But if claim presented, executor has duty to pay mortgage debt. 18 H. 588, 591.

Requirement of presentment not applicable to claim for specific performance of decedent's promise to convey land. 45 H. 1, 361 P.2d 374. One seeking to recover specific property from administrator's possession is not a "creditor" and statute is inapplicable. 10 H. 123, 124. Suit to fasten a trust on property left by decedent, applicability of statute, see 32 H. 167, 169.

Failure to present claim does not bar the government. 4 H. 366; 43 H. 237.

Claim by former wife and children to retirement system funds on basis of divorce decree is not creditor's claim within meaning of section. 52 H. 357, 477 P.2d 620.

Effect of presenting claim.

Judgment creditor having no lien whose claim has been allowed may not take out execution. 19 H. 663. But presentation of claim does not operate as waiver of mortgage lien. 20 H. 123, 127. Secured creditor who has presented claim and thereafter realizes on the security, is entitled to dividends from insolvent estate only on the amount of the deficiency. 18 H. 369; see 20 H. 123, 127-28. Duty of executor to pay mortgage debt. 18 H. 588, 591.

Administrator has no standing to set aside conveyance made by decedent in fraud of creditors, and creditor of insolvent estate whose claim has been allowed may himself sue. 19 H. 620.

Priority of claims.

Expenses of administration and funeral expenses are preferred, see 1 H. 84 (143) (single justice); 1 H. 89 (152) (single justice); 16 H. 575, 577; 33 H. 226.

Taxes due the sovereign are preferred over ordinary debts. 26 H. 679.

Whether wage claims have preference raised but not decided. 1 H. 84 (143) (single justice). Preference allowed for services for a reasonable period. 1 H. 89 (152).

Judgment creditor not having a lien not entitled to priority over ordinary creditors. 1 H. 84 (143) (single justice). Likewise, expenses of last illness have status of ordinary debts. 14 H. 144.

Rejected claims.

Order to pay claim duly rejected by administrator would be outside jurisdiction of probate court. 19 H. 232, 235; see 4 H. 499. Presentment of claim to probate court after its rejection is not commencement of suit. 3 H. 367, 368.

Court rule requiring that statute of limitations be specially pleaded is inapplicable. 10 H. 249, 251. Creditor's complaint must show compliance with requirements of this section. 5 H. 664, 666. Suit may be brought on rejected claim though notice to creditors not published by administrator. 8 H. 101.

Rejection of claim must be definitely brought home to claimant. 7 H. 397, 399.

As to variance between claim as presented and claim sued upon. See 10 H. 467; 26 H. 615, 620.

Statute inapplicable to replevin action. 10 H. 123, 124.

Whether service upon attorney for creditor would constitute the required notice to the creditor, raised but not decided. 26 H. 615, 621.

Real estate; sale.

Power to sell may be exercised only upon license obtained from probate court. 45 H. 199, 364 P.2d 635.

Power to sell may be exercised for payment of master's fee, despite vesting order setting up testamentary trust. 31 H. 163, 176. May be exercised for payment of debts though kuleana escheated to owner of ahupuaa. 37 H. 391.

Use of income of real property to pay debts. 35 H. 795.

Under prior law, real estate could not be sold to pay expenses of administration. 19 H. 163, 177. But could be sold for payment of debts. 6 H. 579, 582 (single justice).