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03/15/63 ANNABELLE G. MARKHAM v. ALBERT T. SCOTT

March 15, 1963

ANNABELLE G. MARKHAM, ADMINISTRATRIX OF THE ESTATE OF GLORIA JEAN GRIFFIN, DECEASED, PLAINTIFF,
v.
ALBERT T. SCOTT, SR., ADMINISTRATOR OF THE ESTATE OF ALBERT T. SCOTT, JR., DECEASED, DEFENDANT.



Superior Court for Kent County, No. 110, Civil Action, 1962

Storey, J., sitting.

The opinion of the court was delivered by: Storey

Storey, J.:

This is a tort action based on the alleged wrongful death of Gloria Jean Griffin. Plaintiff is the administratrix of her estate. Defendant is the administrator of the estate of his deceased son, who also met his demise when the automobile he was driving struck the vehicle in which plaintiff's decedent was a passenger.

The plaintiff filed a complaint for wrongful death against the defendant administrator alleging negligence on the part of his decedent. This matter is presently before the court on the following preliminary issues:

1. Motion by the plaintiff to strike the defense, set forth in the answer, that a claim for wrongful death was not timely presented to defendant administrator within nine months after the date of the granting of letters to the administrator in accordance with 12 Delaware Code, Sec. 2102.

2. Motion by the defendant for summary judgment.

Plaintiff's and defendant's decedents met their demise on July 13, 1960. On July 26, 1960, the defendant was granted letters of administration. Commencing in September, 1960, and up to May, 1961, plaintiff's attorney attempted to negotiate settlement with the insurance carrier for the defendant's decedent. In May, 1961, the carrier referred this matter to counsel presently representing defendant. Suit was filed shortly thereafter by plaintiff, the action being brought within the period by law. Title 10, Sec. 8106A, of the Delaware Code provides:

"No action to recover damages for wrongful death or for injury to personal property shall be brought after the expiration of 2 years from the accruing of the cause of such action."

Defendant argues that the following provision of our law is applicable:

"* * * all claims against the estate of the decedent, whether due, not due or contingent,* * * not presented to the * * * administrator * * *, and of which he shall not have notice * * *, within nine months after the date of the granting of letters to the executor or administrator shall be forever barred." 12 Delaware Code, Sec. 2102(a).

This Court recognizes the apparent conflict in the statutory law of our State. It is without doubt a situation warranting legislative attention. Nonetheless, I am constrained to resolve these issues despite the conflict which has thus been posed.

An inquiry into the legislative intent of the so-called non-claims statute ( 12 Delaware Code, Sec. 2102(a) is pertinent to the resolution of this matter. In an interpretation of basically the same statute, this Court has ruled:

"While the practical effect of the statute is to bar some claims in less time than the general Statute of Limitations, yet from this it cannot be inferred that it was the legislative intent that the operations of the general Statute of Limitations were to be otherwise affected." ...


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