Can a plaintiff bring a claim against an executor for injuries sustained by his wife as a result of negligent medical treatment?

Probate Code, sections 700 and 707, provide that all claims against an estate for physical injuries must be filed (except under circumstances not here relevant) within six months of the first publication of notice to creditors. Section 707 specifically states that 'any claim not so filed or presented is barred forever, unless it is made to appear by the affidavit of the claimant to the satisfaction of the court or a judge thereof that the claimant had not received notice, by reason of being out of the State * * *.' Appellants' affidavit admits that their claims were not filed within the statutory period. It contains no averment that appellants' failure to do so was caused by their absence from the state. Under such [215 Cal.App.2d 330] circumstances, the trial court was powerless to find that the claims were timely filed. In Hurlimann v. Bank of America (1956) 141 Cal.App.2d 801, 297 P.2d 682, the plaintiffs, husband and wife, brought suit against an executor to recover damages for injuries sustained by the wife as a result of the negligent medical treatment of the decedent. The complaint alleged that the plaintiffs were unaware of this negligent treatment until the wife subsequently underwent an operation performed by other physicians. At the time of discovery, the decedent had been dead for seven months and the statutory period for the filing of claims against the estate had already expired. Plaintiffs' claims were thus filed several weeks too late, and the trial court sustained the demurrer of defendant executor without leave to amend upon the ground that plaintiffs' cause of action was barred under Probate Code, section 707. The judgment accordingly entered was affirmed on appeal, with the court noting that section 707 authorized the late filing of creditors' claims only in those instances where the claimant was absent from the state during the period of publication.