Dolan

Pamela Jean Dolan 1 appeals from the order of dismissal 2 entered following the sustaining of a general demurrer with *896 out leave to amend, The sole issue presented on this appeal is whether Probate Code section 709 governs, to the exclusion of Probate Code section 707, in the case of a creditor’s claim filed by a nonresident while an action is pending against the decedent at the time of his death. We hold that section 709 governs, and affirm the judgment.

Pamela Jean Dolan, individually and as representative of Pacific States Steel Corporation (hereinafter appellant), filed a complaint on rejected claim for damages for breach of fiduciary duty and fraud in the Alameda County Superior Court against Joseph Eastwood III (hereinafter respondent), as executor of the estate of Joseph Eastwood, Jr.

Respondent filed a general demurrer and a motion to strike the complaint. The motion was granted and an order of dismissal and judgment were filed.

Appellant, a resident of the State of Nevada, filed a shareholder’s derivative suit on behalf of Pacific States Steel Corporation in the United States District Court, Northern District of California, on May 15, 1975. Included as a…