Estate of Sawyer

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 3 
Docket:	Pen-99-154
Submitted
on Briefs:	November 17, 1999
Decided:	January 11, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.





ESTATE OF MALCOLM GEORGE SAWYER



DANA, J.

	[¶1]  Elsie Sawyer appeals from a judgment entered in the Penobscot
County Probate Court (Woodcock, J.) dismissing on the basis of laches her
claim for past due child support against the estate of her former husband,
Malcolm Sawyer.  Because Elsie failed to file a petition for allowance or
commence a proceeding against the estate within 60 days of the claim's
disallowance, as required by 18-A M.R.S.A. § 3-806(a), we affirm.
	[¶2]  The facts are not in dispute.  The Lake County, Indiana, Superior
Court granted Elsie and Malcolm a divorce in 1966.  The judgment granted
Elsie custody of the parties' four minor children (then ages 4, 6, 8 and 9)
and ordered Malcolm to pay weekly child support.  Malcolm died on April 4,
1998.  Shortly thereafter, Elsie sent a letter to Malcolm's personal
representative claiming past due child support pursuant to the 1966 divorce
judgment.  Malcolm's personal representative sent Elsie a letter disallowing
her claim on June 9, 1998.  Elsie filed a petition for allowance in the
Penobscot County Probate Court on September 11, 1998.
	[¶3]  The Probate Code limits the time within which a claimant can
dispute the disallowance as follows:

Every claim which is disallowed in whole or in part by the
personal representative is barred so far as not allowed unless the
claimant files a petition for allowance in the court or
commences a proceeding against the personal representative
not later than 60 days after the mailing of the notice of
disallowance.

18-A M.R.S.A. § 3-806(a) (1998) (emphasis added).  We have stated that
section 3-806(a) is "plain, unambiguous, and mandatory," Estate of Staples,
672 A.2d 99, 101 (Me. 1996), and have concluded that failure to comply
with its requirements bars otherwise justiciable claims.  See id.; see also
Estate of Leavitt, 1999 ME 102, ¶ 7, 733 A.2d 348, 350; Estate of
Theberge, 1998 ME 45, ¶ 4, 706 A.2d 1041, 1042.
	[¶4]  In this case Elsie filed her petition for allowance ninety-four days
after the personal representative mailed her the notice of disallowance. 
Elsie concedes that she did not comply with the 60-day deadline, but
contends that an exemption to the deadline applies to her claim.  According
to section 3-804(2),

[t]he claimant may commence a proceeding against the personal
representative in any court where the personal representative
may be subjected to jurisdiction, to obtain payment of his claim
against the estate, but the commencement of the proceeding
must occur within the time limited for presenting the claim.  No
presentation of claim is required in regard to matters claimed in
proceedings against the decedent which were pending at the
time of his death.

18-A M.R.S.A. § 3-804(2) (1998) (emphasis added).  Elsie argues that the
1966 divorce judgment was "pending" against Malcolm at the time of his
death, rendering the presentation of a claim pursuant to section 3-806(a)
unnecessary.  We disagree.
	[¶5]  "Pending" has been defined as:

Begun, but not yet completed; during; before the conclusion of;
prior to the completion of; unsettled; undetermined; in process
of settlement or adjustment.  Thus, an action or suit is 'pending'
from its inception until the rendition of final judgment.

Black's Law Dictionary 1021 (5th ed. 1979) (emphasis added).  This
definition makes clear that an action is "pending" until there is a final
judgment.  An action may also be deemed "pending" while that final
judgment is being appealed.  The appeal period for the 1966 divorce
judgment ended thirty-two years before Malcolm's death.{1}  See Ind. R. App.
P. 3(B).
	[¶6]  Lovell v. One Bancorp, Maine Sav. Bank, 755 F. Supp. 466 (D. Me.
1991) (Carter, J.), provides an example of a "pending" claim pursuant to
section 3-804(2).  In Lovell, the decedent had been a defendant in a lawsuit
at the time of his death.  The plaintiff in that action filed the same claim
with the estate.  The estate disallowed the claim and the plaintiff did not file
a petition for allowance or commence a new proceeding against the estate
within the 60-day period required by section 3-806(a).  In refusing to bar
plaintiff's claims, the court applied the section 3-804(2) exemption for
pending claims and stated the policy behind the exemption:

There is no need to petition the Probate Court for allowance of a
claim . . . where an action which can serve the same purpose has
already been commenced and is proceeding to judgment.  It is
for this reason that section 3-804(2) specifically excludes
pending judicial claims from the presentation requirement.

Lovell, 755 F. Supp. at 467 (emphasis added).	  
	[¶7]  The Indiana action for divorce and child support proceeded to
judgment long before Malcolm's death and is no longer "pending" within
the meaning of section 3-804(2).  Elsie did not file a petition for allowance
or commence a proceeding against the personal representative within 60
days of the mailing of the estate's disallowance of her claim.  Accordingly,
Elsie's claim is time-barred by section 3-806(a).{2}
	The entry is:
			Judgment affirmed.
                                    
Attorney for appellant:

Spencer Ervin, Esq.
P O Box 383
Bass Harbor, ME 04653

Attorney for appellee:

J. Hilary Billings, Esq.
Billings & Silverstein
P O Box 1445
Bangor, ME 04402-1445