Segovia

The petition in this matter seeks review of an order granting the petition of real parties in interest to file a late claim against the estate of Raul Jose Segovia, also known as Raul J. Segovia, for injuries allegedly suffered January 23, 1971, in an accident in which the decedent was killed. The issue here is not whether the real parties in interest have, in the civil proceedings in which they seek damages, alleged sufficient facts to establish that the legal representative of the decedent’s estate or any of her authorized agents has waived, or is estopped to assert the lack of, the formal submission of a claim. (See Satterfield v. Garmire (1967) 65 Cal.2d 638 [ 56 Cal.Rptr. 102 , 422 P.2d 990 ].) It is simply whether the superior court in the exercise of its probate jurisdiction has power *466 and authority to modify the provisions of the Probate Code which require “all persons having claims against the decedent to file them . . . or to present them . . . within four months after the first publication of the notice” to creditors. (Prob. Code, § 700.) Section 707 further states “... all claims for damages for injuries to or death of a person ... must be filed or…

I respectfully dissent.

The plaintiffs in the action below (the real parties in interest here), within three months of the subject tort, filed a negligence action for personal injuries against the administratrix of the estate of the alleged tortfeasor, named in the complaint as Doe One. The only asset of the estate was a $25,000 liability insurance policy, and the plaintiffs waived all claim in excess of the policy’s benefits. The decedent’s widow was promptly served with the action’s summons and complaint and was requested to “give the enclosed summons and complaint to your insurance carrier in order that your rights might be fully protected.” The papers were so delivered, and the insurance company entered upon the action’s defense. Over a period of many months plaintiffs’ lawyer and the widow’s (and insurance company’s) attorney “communicated back and forth many times, extensions of time to answer were granted, we exchanged depositions, etc.”; some of the extensions of time were written and some were oral. At some point during this period the widow’s attorney caused her to be appointed administratrix of the decedent’s estate. She then commenced publication of notice to…