DISSENTING OPINION OP
MIZUHA, J.When the coexecutrix Margaret E. Yamanoha opened the envelopes and read the statements from the Kuakini Hospital and Home in November and December, 1957, and January, 1958, she was presented a legally sufficient claim by the hospital against the estate of her deceased husband. If more particulars were desired, the coexecutrix could demand same at any time after the receipt of the first statement. It is incumbent upon the coexecutrix to call for any needed clarification when enough has been done to constitute a claim. Standiford v. Cantrell, 87 Cal. App. 736, 262 Pac. 800.
In Lawelawe v. Kahalepuna, 26 Haw. 615, this court, among other things, laid down the following rule relative to the duties and responsibilities of administrators and executors. “When presented the administrator or executor, as trustee for all creditors and beneficiaries ultimately entitled, is bound to investigate the claim and if found to be just, make provision for its payment. These requirements are simple and due to the liberality of interpretation accorded to statutes of this character in respect to the *100remedy provided no formality is required. The sufficiency of a claim is not measured by its ability to withstand a general or special demurrer. A cause of action, as that term is understood in pleading, need not be stated. The rules of pleading do not apply.”
21 Am. Jur., Executors and Administrators, § 9, makes the following significant statement:
“* * * The executor or administrator is more the representative of the creditors of the decedent than of the heirs; creditors have the first claim against the estate and it is the paramount duty of the executor or administrator to protect their interests. In a broad and fundamental sense the representatives of a decedent hold his estate as a trust fund for the payment of his debts. Consequently, in many respects an executor or administrator is a full representative of creditors of the estate committed to his care.” (Emphasis added).
Bishop & Co. v. Williams, 9 Haw. 299, cited by the majority, was a claim on a promissory note as follows:
“ ‘$3,000. “ ‘Honolulu, November 19, 1891
“ ‘Twelve months after date we promise to pay the order of C. E. Williams and J. H. Wood three thousand dollars in U. S. gold coin at the bank of Bishop & Co. with interest at 10 per cent per annum. Value received.
“ ‘H. H. Williams & Co.’ ”
“Endorsed on back — ‘C. E. Williams, J. H. Wood.’ ”
This note was the property of the Bishop & Co. by endorsement and delivery. Before maturity J. H. Wood, one of the endorsers, died and the defendants, Waterhouse and Hartwell, qualified as executors under the provisions of Mr. Wood’s will. The note fell due November 19, 1892, and on the last day of grace, November 22, Mr. Pat y, a notary public, presented it, as stated in his notice of protest, “at the Bank of Bishop & Co., where it was made *101payable and payment demanded which was refused, the said note having been dishonored, the same was this day protested by me for the non-payment thereof, and the holders look to you for the payment thereof with all costs, charges, interests, expenses and damages thereby already accrued or that may hereafter accrue thereon by reason of the non-payment of said note.” This notice was addressed to the “executors of the Estate of John H. Wood.” The court instructed the jury “That the jury may consider the demand and notice by the notary public as evidence of a claim made by Bishop & Co. upon the estate of J. H. Wood” and “that it was a question of fact for them to find whether the notice was sufficient.” The jury found for the plaintiff, Bishop & Co.
It is significant that in that particular case, the plaintiff, Bishop & Co., did not present the claim. It was merely a notice of protest by the notary, Mr. Paty, and all said notice of protest stated was that the holders of the note look to the executors for payment, without any definite statement as to the amount, without naming the holders of the note, and without attaching a copy of the note to the notice of protest. Nevertheless, upon review this court, giving the statute of nonclaim a liberal interpretation and observing that although the plaintiff itself did not present the claim, the notice of protest as presented by the notary was a legally sufficient presentation of a claim on the part of the plaintiff, held: “After much research we have come to the conclusion that the notice of dishonor and demand for payment made by the notary upon the executors of the will of J. H. Wood, is a sufficient presentation of the claim under our statute of non-claim.”
It is my view that the fact that the statement of charges was made out in the name of the deceased and not to the executors or either of them does not affect the validity of the plaintiff’s claim or of its presentation. Any attempt *102to distinguish Coots v. Morgan’s Administrator, 24 Mo. 522, is but splitting hairs. In no uncertain terms, the court there stated: “If the evidence offered in support of the plaintiff’s demand was rejected because his account was made out against ‘Albert G-. Morgan’ and not against his estate, or the defendant, Martin Snider, the administrator of A. Gr. Morgan, deceased, we are of the opinion that it was error. When an account is contracted with the deceased himself, it is usual to make it out against him by name, and this seems to be the correct way. Of course it must appear, when suit is brought on the account, that it is brought against his executor or administrator. * * *” p. 523-4.
R.L.H. 1955, § 317-23, provides that “Any claim otherwise proper shall be allowed, as a claim against the deceased or the community of which the deceased was a member or both, in accordance with law, notwithstanding that the claim may fail to designate or may improperly designate the obligor or obligors on the claim. * * *” I think that provision may well be considered as an answer to the contention that the plaintiff’s claim is insufficient because it names the decedent. As it reads, the application of the provision cannot be restricted only to claims involving community interests. If the legislature had intended to eliminate this provision, it would have done so when it eliminated the community property law.
It is argued that the claim was sent to an old address, not the place designated in the notice to creditors for the presentation of claims. It should be pointed out that the statute provides for the presentation of claims “* * * either at his residence or at his place of business or at such other place as he may designate, * * *” R.L.H. 1955, § 317-23. It does not provide for the dishonoring of claims that are not sent to the place that is designated.
Reference is made to the statement of hospital charges *103as an ordinary statement of account. But it definitely shows that the debt was incurred as an in patient at Kuakini Hospital and Home prior to November 9, 1957. There is no rule that a claim must be perfect in all particulars in order to be a valid claim. In Syler v. Katzer, 12 Cal. 2d 348, 350, 84 P. 2d 137, the court states:
“Without discussing these in detail, it may be said that there is no necessity that a creditor’s claim be drafted with precision and completeness of a pleading. The only requirement is that it state such facts as will apprise the executor or administrator of the amount of the demand. See Standiford v. Cantrell, 87 Cal. App. 736, 262 P. 800; United States Gypsum Co. v. Shaffer, 7 Cal. 2d 454, 60 P. 2d 998. The claim in the instant case clearly called to the attention of the executor the fact of the services, the period during which they were rendered (up to the time of death), and the amount demanded. If any uncertainty remained, it was incumbent upon the executor to call for clarification. * * *yy
In the instant case, the widow of the deceased and coexecutrix of the estate admits she did receive statements from the plaintiff within the four-month period but they were “thrown in the rubbish when received.” She was appointed coexecutrix with the First Trust Company of Hilo, Ltd., on September 24, 1957, and caused notice of publication to be published on September 28, 1957. The four-month period expired on January 27, 1958.
Though the statements in November and December, 1957, and in January, 1958, became “rubbish” by her own admission, she further, in her answer to the interrogatories put to her, referred to two statements which were received in February and March, 1958, as follows:
*104“Statement In Patient Date November 9, 1957
KUAKINI HOSPITAL
347 N. Knakini Street
Honolulu, T. H.
Telephone 62236
7-19-57 $ 89.95
2-1-57 2,292.74
Dr. Richard A. Yamanoha Balance $2,382.69
Mrs. Margaret E. Yamanoha
57 Hina Street
Hilo, Hawaii
“Statement In Patient Date November 30 1957
KUAKINI HOSPITAL
347 N. Kuakini Street
Honolulu, T. H.
Telephone 62236
$2,292.74 2/1
88.95 7/19
Dr. Richard Yamanoha Balance $2,381.69
Mrs. Margaret Yamanoha
57 Hina Street
Hilo, Hawaii”
These two statements were turned over by the coexecutrix and are now in the custody of her attorneys.
39 C.F.R. § 44.2(d) (Rev., 1955) reads as follows:
“Mail addressed to deceased persons. Mail addressed to deceased persons may be delivered to the executor or administrator. When there will be no court action on the deceased’s estate, the mail may be delivered as agreed to by all the heirs.”
*105When Mrs. Margaret E. Yamanoha opened the envelopes from Kuakini Hospital and Home addressed to Dr. Richard A. Yamanoha in November and December, 1957, and January, 1958, she opened same in her official capacity as coexecutrix of the estate of Dr. Richard A. Yamanoha, deceased. If she were acting in any other capacity, it was in violation of United States postal regulations. Once the envelopes were opened and the statements examined, the claim was presented. It then became a matter requiring her official attention in her fiduciary capacity. As long as the envelopes were unopened by Mrs. Yamanoha, they had no legal significance. She could have returned same to the sender, unopened. But as soon as she chose to open same under the authority granted to executors and administrators by United States postal regulations, there was a legal and sufficient presentation of a claim. See Valente v. Sica, 1 Cal. App. 2d 478, 36 P. 2d 1086, Breckenridge v. Weber Dry Goods Co., 167 Ark. 429, 268 S.W. 593.
The discussion by the majority with reference to United States Gypsum Co. v. Shaffer, 7 Cal. 2d 454, 60 P. 2d 998 (1936) is difficult to follow for the court did say “that the presentation to the proper person of the notice of motion of May 16, 1933, and appearance pursuant thereto served as a presentation of notice of the plaintiff’s claim to the executors upon which the court could properly predicate an order permitting an amended claim to be filed.”
The facts in the Shaffer case, supra, reveal that the attorney for the decedent appeared as the attorney of record in the civil matter in response to the notice of motion. The attorney did not appear in his official capacity as coexecutor of the estate of the decedent. From the conduct of the coexecutor in response to the notice of motion in the civil matter, the court implied an intention to look to the estate for payment. Just as the California *106court found that there was a sufficient presentation of a claim by way of notice of motion in an entirely different civil matter and subsequent conduct of the coexecutor, a trial jury or court after a full review of all the facts and circumstances could have found a sufficient presentation of a legally valid claim by the subsequent conduct of Mrs. Margaret E. Yamanoha with reference to the envelopes she opened and disposition of the contents therein.
I am unable to follow the majority opinion that the argument with reference to the duty of the executor to seek clarification fails at the outset because the plaintiff did not even endeavor to file a claim within the required time. I conclude differently. The statements presented through the U. S. Mail in November and December, 1957, and January, 1958, were legally sufficient claims, and in accord with the principles laid down in the Bishop v. Williams and Lawelawe v. Kahalepuna cases, supra. There is no entrapment in this matter. This is a case purely and simply of fraud and deceit. Here we find a widow, who is coexecutrix of her deceased husband’s estate and sole beneficiary under the will, opening envelopes addressed to her husband, delivered by the United States Postal Service and containing statements for hospital charges from Kuakini Hospital and Home where her husband was a patient, a fact of which she was no doubt aware, and as the widow throwing the statements away after ascertaining and perusing same in complete disregard of her official capacity as coexecutrix. But when she received similar statements in February and March, after the four-month period had expired, she advisedly preserved and turned the same over to her attorneys.
The only conclusion that I can arrive at from the facts without a full trial is that the coexecutrix chose to ignore the statements for hospital charges, refused to consult *107with the coexecutor, The First Trust Co. of Hilo, Ltd., as to the sufficiency or validity of the statements as á claim against the estate, and refused to send the envelopes back to the hospital, to prevent a formal claim from being filed before the expiration of the four-month period. Through such contrivance, she placed the estate in a position to be able to deny liability by resting upon the nonclaim statute. The construction now given to the statute by this court in the light of the peculiar facts involved in this case may open the door to the evasion of estate debts on the basis of some hypertechnical defects in the form or manner of presentation of claims.
Seholtz v. Hazard, 68 Colo. 343, 349, 191 Pac. 123,125, clearly states the duties of officers of the probate court:
“An administrator is a trustee of whom the utmost good faith is required. James et al. v. Kelly et al., 107 Ga. 446, 33 S.E. 425, 73 Am. St. Rep. 135. He is particularly the representative of the creditors, holding the estate as a trust fund for the payment of debts. 11 R.C.L. p. 25. The law esteem [sic] it a fraud in such a trustee to take, for his own benefit, a position in which his interest will conflict with his duty. Sheldon v. Estate of Rice, 30 Mich. 296, 301, 18 Am. Rep. 136.”
Estate of S. Kaiu, 17 Haw. 514, can be easily distinguished. In that case nothing in writing was presented to the administrator. In all cases where the courts have held as a matter of law, that the requirements of nonclaim statutes have been met are instances where some sort of writing has been presented to the court or the executor or administrator.
Dime Savings Bank v. McAlenney, 76 Conn. 141, 55 Atl. 1019, cited by the majority, refers to a case where “there is no finding of any act done or word spoken by the plaintiff * * * which was either actuated by a purpose *108to put this note in a position to claim payment out of the estate, or which evidenced, or was intended to evidence, any such purpose.”
In the instant case, the record disclosed the mailing of the statements and receipt of same by the coexecutrix, the opening of the envelopes and discarding of same as “rubbish,” acts which from a full trial, one could reasonably conclude that there was a sufficient presentation of a claim, and that these statements were intended to serve as a claim against the estate for payment.
In Northwestern Auto Parts Co. v. Chicago B. & Q. R. Co., 240 F. 2d 743, 746 (8 Cir. 1957), the conditions for granting or not granting summary judgment was stated as follows:
“* * * under Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A., a summary judgment upon motion therefor by a defendant should never be entered except where the defendant is entitled to its allowance beyond all doubt; only where the conceded facts shoAv defendant’s right with such clarity as to leave no room for controversy; with all reasonable doubts touching the existence of a genuine issue as to a material fact resolved against the movant; giving the benefit of all reasonable inferences that may reasonably be drawn from the evidence to the party moved against. ‘That one reasonably may surmise that the plaintiff is unlikely to prevail upon a trial, is not a sufficient basis for refusing him his day in court with respect to issues which are not shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them.’ Sprague v. Vogt, 8 Cir., 150 F. 2d 795, 801; Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F. 2d 213; Union Transfer Co. v. Riss & Co., 8 Cir., 218 F. 2d 553; Caylor v. Virden, 8 Cir., 217 F. 2d 739.”
*109I am of the opinion that the lower court should not have granted summary judgment for there was a genuine issue as to the presentation of a legally sufficient claim within the four-month period.