one year after the original grant of administration, nor unless the demand has been exhibited to the administrator and payment demanded; and by § 2 it is provided that no such action shall be sustained unless the demand was exhibited to the administrator within two years after the original grant of administration. These provisions, however, do not apply to claims arising against administrators after the grant of administration, which are founded rather upon their private liability for breach of duty, than upon their obligations as representatives of their intestates. Such claims may not arise at all until after the lapse of two years from the original grant of administration, and of course could not be exhibited in the time limited by these provisions. This furnishes a strong argument against a construction of these provisions that should extend them beyond demands against the testator or intestate, existing at his death, inasmuch as they could have no practical application; and so we think it has always been understood. By the law of 1789, 1 N. H. Laws, 212, § 18, the provision clearly applies only to claims against the estate existing at the decease; and so is the law of January 2, 1829, ed. 1830, p. 370. The General Statutes are the same as the Revised Statutes, which are but a revision of the older statutes, and not intended to change them; and this is shown by subsequent decisions under the Revised Statutes, which hold that the design of the statute requiring the exhibition of claims to the administrator was to bring them to his knowledge, so that he might be enabled to judge in what manner the estate should be settled. . . This is clearly the object of these provisions, and it could have no application to demands subsequently arising against the administrator in his private capacity, as is the case with the present claim."

might have accrued after the death of S. J. Roddy, in law, would be considered as having been made by the administrator, and such would not fall within the purview of the statute."

In Martin v. Saxton (1916) 48 Utah, 488, 160 Pac. 441, which was an action against an executor to foreclose a mortgage and for a deficiency judg ment, it appeared that the mortgage was not executed by the deceased, but by the executor on behalf of the estate, and by order and authority of the court, in the course of administration of the estate and long after the time for presentation of creditors' claims. Judgment was rendered for the plaintiff, the mortgaged premises ordered sold, the plaintiff allowed an attorneys' fee, and provision made for a deficiency judgment. The only point made was that the action was not maintainable, because it was not alleged nor found that the claim sued on was presented to the executor as provided by Comp. Laws 1907, § 3858; and because it was not alleged in the complaint that all recourse against property of the estate, other than that covered by the mortgage, was waived; and especially that the plaintiff, without presentation of the claim, was not entitled to an attorneys' fee nor to a deficiency judgment. The court said: "We think the demands and claims referred to in the statute requiring presentation are those arising out of contracts or transactions with the decedent, and not to claims or transactions had with the executor or administrator."

6. Contingent claim.

In Texas it has been held that where a claim is contingent, and for an uncertain amount, it is not within a statute requiring the presentment of a "claim for money" before suit can be brought thereon. Sutton v. Page (1849) 4 Tex. 142; Evans v. Hardeman (1855) 15 Tex. 480; King v. Cassidy (1871) 36 Tex. 531; Blum v. Welborne (1882) 58 Tex. 157; Wells v. Hobbs (1909) 57 Tex. Civ. App. 375, 122 S. W. 451; Hume v. Perry (1911) Tex. Civ. App. 136 S. W. 594. So, in Hume v. Perry (Tex.) supra,

it was said: "While the language of the statute is general, and is sufficiently comprehensive in terms to include all claims for money against the estate of a deceased person, the courts have limited its application to those where the amount claimed is fixed and definite, not contingent or indeterminate, and which are susceptible of verification by affidavit."

In Sutton v. Page (Tex.) supra, it was held under a statute providing that no holder of a claim for money could bring suit thereon unless the claim had been presented to the administrator, that where, in an action for breach of a covenant of a bond for title, the petition disclosed that it was not in the power of the defendant to make the title, and did not allege any special damage, the measure of damages was the purchase-money paid, with interest, and that in such a case the bond for title was a claim for money, within the meaning of the statute. It was, however, declared that had the plaintiff alleged facts in his petition, requiring the intervention of a jury to ascertain his damages, it would have presented a very different question.

In National Guarantee Loan & T. Co. v. Fly (1902) 29 Tex. Civ. App. 533, 69 S. W. 231, it was said in regard to a contingent claim or one for an uncertain amount: "The language of the statute is: 'Every claim for money against a testator or intestate shall be presented,' etc. That this language is not to be construed in the broadest and most unrestricted sense is, we think, evident from the other provisions of the statute, directing that all claims allowed by an administrator must be accompanied by an affidavit in writing, to the effect that the claim is just, and that all legal offsets, payments, and credits known to affiant have been allowed thereon. This provision of the statute clearly precludes the presentation of an uncertain or contingent claim, because no person can be required to swear that a claim for a stated amount is just, when, from the nature of the claim, the amount is necessarily uncertain and contingent, and it was

certainly not the intention of the legislature to deny to holders of this character of claims the right to enforce same against the estate of a decedent. The object of this statute was to provide a prompt and inexpensive method for the settlement of claims against estates when the amount claimed is liquidated, or is susceptible at the time of presentation of being reduced to a definite and specific sum which the administrator would be justified in allowing, and it has no application to any other character of claims. That a contingent claim, or one for an uncertain amount, should not be presented to an administrator for allowance, is well settled."

In Evans v. Hardeman (1855) 15 Tex. 480, it was held that a guaranty by a locator that, if the obligee would accept a certain location he should get a certain price per acre for it, was a claim for unliquidated damages, presentment of which was not necessary before bringing suit. The court said: "It is objected to the judgment that the claim was not presented to the administrator before bringing the suit. But to this, it is a sufficient answer that the petition was framed with a double aspect in respect to the relief sought. In the aspect in which it was maintainable, and was maintained, it was a demand for uncertain or unliquidated damages; being the amount which the land fell short in value of the sum of $1 per acre; and being a sum which was uncertain, and could only be rendered certain by proof, it was not necessary that it should have been presented to the administrator for allowance."

7. Continuance or revival of action.

A statute requiring presentation of a claim to an executor or administrator before a suit can be brought on it has been held to be inapplicable to those cases where a suit was commenced against the testator or intestate before his death, and was revived against his representative after his death. Apperson v. Hazelrigg (1880) 2 Ky. L. Rep. 64; Gray v. Pat

ton (1881) 3 Ky. L. Rep. 393; Musser v. Chase (1876) 29 Ohio St. 577. See also Clodfelter v. Hulett (1884) 92 Ind. 426; Newman v. Gates (1904) 165 Ind. 171, 72 N. E. 638, 6 Ann. Cas. 649. But see United States v. Hailey (1882) 2 Idaho, 22, 3 Pac. 263.

And, even though such a provision may be regarded as applicable, it may be waived by the representative. VANCE V. HANSON (reported herewith) ante, 348.

In some jurisdictions this situation is controlled by statute. Thus, in Home v. Selling (1919) 91 Or. 428, 21 A.L.R. 403, 179 Pac. 261, it was held that presentation was unnecessary under a statute providing as follows: "No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of the action survive or continue. In case of the death, marriage or other disability of a party, the court may at any time within one year thereafter, on motion, allow the action to be continued by or against his personal representatives or successors in interest."

In United States v. Hailey (Idaho) supra, the statute provided as follows: "If any action be pending against the testator or intestate at the time of his death, the plaintiff shall in like manner present his claim to the executor or administrator for allowance or rejection, authenticated, as in other cases, and no recovery shall be had in the action unless proof be made of the presentation required. by law." It was held that this provision bound the United States the same as any other litigant, and that, where the United States had commenced a suit against the intestate and had revived it against the administrator without presenting the claim as required by the foregoing provision, the suit would be dismissed.

8. Contract generally.

A statute requiring presentation of a claim as a prerequisite to an action thereon applies to claims founded on a contract.

California.-Morse v. Steele (1906) 149 Cal. 303, 86 Pac. 693. Idaho.-FLYNN V. DRISCOLL (reported herewith) ante, 352.

Maine. Maine Cent. Institute v. Haskell (1880) 71 Me. 487.

Montana.-Brown v. Daly (1906) 33 Mont. 523, 84 Pac. 883; Ullman Co. v. Adler (1921) 59 Mont. 232, 196 Pac. 157.

Ohio.-Yager v. Greiss (1886) 1 Ohio C. C. 531, 1 Ohio C. D. 296. Oklahoma.-American Trust Co. v. Chitty (1912) 36 Okla. 479, 129 Pac. 51.

South Dakota.-Murray v. Johnson (1912) 28 S. D. 571, 134 N. W. 206.

In Lundy v. Lemp (1919) 32 Idaho, 162, 179 Pac. 738, it was held that an action on a claim arising out of a contract to convey land could not be maintained where the claim had not been presented.

In Maine Cent. Institute v. Haskell (Me.) supra, presentation of claim was held to be a prerequisite to an action to recover the amount of a subscription to a building fund.

In Roddy v. Harrell (1897) Tex. Civ. App. —, 40 S. W. 1064, which was an action against the administrator of the lessee for rent, the court said: "The other error committed by the court was in charging that the appellee was entitled to recover rents for said storehouse from the time of the making of said bill of sale. After the making of said bill of sale, Roddy occupied and used the storehouse until May, 1894, when he died. The right of Harrell to rents for that time constituted a claim against the estate of said Roddy; and, under the statute, in order for him to recover, it was necessary that such claim should have been presented to the administrator of Roddy's estate, and rejected by such administrator, before suit was authorized to have been brought; or, if allowed, it should have been paid in due course of administration. As said claim was not presented to said administrator, no recovery could be had in this proceeding in favor of appellee for said amount."

In FLYNN v. DRISCOLL (reported

In Jones v. Woodward (1915) 50 Okla. 704, 151 Pac. 586, it was held that an action based on fraud was not one which was required to be presented, the statute requiring presentation of claims arising on contract.

In Ryan v. Spieth (1896) 18 Mont. 45, 44 Pac. 403, which was an action in equity against an administratrix, seeking to reach and have applied to a judgment assets and property alleged to have been fraudulently disposed of and concealed by the defendant, it was held that presentation of a claim therefor was not a condition precedent to the institution of a suit. The court said: "The defendants further contend that the complaint is fatally defective in that it does not appear that plaintiff's claim against the firm of Spieth & Krug has been presented to the administratrix of the Spieth estate under the rule of probate practice. But in this action no relief is sought against the administratrix. Barbara Spieth is named as administratrix in the title of the case, and alleged to be such in the body of the complaint, but the relief sought against her is strictly personal. She is charged with embezzlement and conversion of the funds of the

estate, and the prayer is that she be made to account for them in equity. The question is not one of a claim to be presented to an administrator for an allowance, but is rather an effort to require a person who has converted the funds of an estate to account to a creditor of the estate."

But in Grubb v. Chase (1910) 158 Cal. 352, 111 Pac. 90, in which case the action which was brought against an administrator was upon a common count for money alleged to be due as the purchase price of certain goods, wares, merchandise, stocks, securities, and choses in action sold and delivered by plaintiff to defendant's decedent, it was held that, a claim having been filed against the estate for money owing under a contract of sale, an action for damages for tort based on alleged false representations, claim for which had not been filed, could not be maintained. The court said: "The learned judge of the superior court, however, filed an opinion in which he gave as an additional reason for his ruling, and one that would have been sufficient without the other, that the proof adduced at the trial utterly failed to sustain the allegations of the complaint. In this behalf he wrote as follows: "The case to be made in suing an administrator is delimited absolutely, under the cisions in this state, to the cause of action set forth in the claim filed against the estate; the claim filed against the estate in these cases was for money owing, as upon an express promise to pay, under an executed contract of sale. The case as made by the plaintiffs was one for damages in tort, as for false representations. The two are essentially dissimilar. For that reason, then, conceding that the court might have committed some errors in the giving of instructions, or the admission of evidence, still, under no circumstances, under the pleadings as at present, could plaintiff recover.""

11. Funeral expenses.

It has been held that a claim for funeral expenses is not one which the statute requires to be presented to the executor or administrator of the

deceased. Potter v. Lewin (1898) 123 Cal. 146, 55 Pac. 783; Golden Gate Undertaking Co. v. Taylor (1914) 168 Cal. 94, 52 L.R.A. (N.S.) 1152, 141 Pac. 922, Ann. Cas. 1915D, 742. But see Butterworth v. Bredemeyer (1916) 89 Wash. 677, 155 Pac. 152.

12. Guardianship.

In Gillespie v. Winn (1884) 65 Cal. 429, 4 Pac. 411, it appeared that the plaintiff, while a minor, was under the guardianship of Emily E. Hersperger, who died intestate. The defendant, Winn, was appointed administrator of her estate in 1877. The plaintiff reached majority in September, 1881. This action was for an accounting as to a fund held by the decedent as guardian, and was commenced in June, 1883. No presentation of the claim was ever made to the administrator, and there was evidence showing that the trust fund did not come into his hands. A nonsuit was granted. On appeal the court, in affirming the judgment, said: "We think the motion for nonsuit was properly granted. The claim on which the action is based was never presented for allowance to the defendant as the administrator of the estate of Mrs. Hersperger, deceased, nor is it shown that the money which she received as the guardian of plaintiff ever came into the hands of defendant as such administrator, or otherwise. On the other hand, the only evidence introduced on the trial tends to prove the exact reverse."

13. Judgment.

In the case of an action founded on a judgment, presentation prior to the institution of the action has been held to be essential. O'Doherty v. Toole (1887) 2 Ariz. 288, 15 Pac. 28; Sanders v. Russell (1890) 86 Cal. 119, 21 Am. St. Rep. 26, 24 Pac. 852; Curry v. Bryant (1870) 7 Bush (Ky.) 301.

In O'Doherty v. Toole (Ariz.) supra, a case not strictly within the scope of this annotation, because the action was against the transferee of property under an alleged fraudulent conveyance to subject the property to a judgment lien, the court, although it affirmed the general rule that a

claim founded on a judgment must be presented within the time specified or be barred as a claim against the estate, held that such failure did not operate as a bar in the case before it.

In Sanders v. Russell (1890) 86 Cal. 119, 21 Am. St. Rep. 26, 24 Pac. 852, it was held that one holding a judgment against the owner of a homestead must, on the death of the judgment debtor, present it to the administratrix, the same as any other claim must be presented, before he can maintain any action to enforce it.

In Curry v. Bryant (Ky.) supra, it was said in this connection: "It be

ing well settled that the provision of the Code prohibiting the bringing of ordinary actions against personal representatives without first making the required demand is imperative, the only questions to be considered in this case are whether the judg ment sought to be reversed is a demand within the meaning of the statute, and the proceeding to revive it a suit against the personal representative, as contemplated by the section of the Code of Practice referred to; and both of these questions must be determined in the affirmative. As a claim evidenced by a judgment, like any other asserted demand, may be unjust, or have been paid, or be subject to set-offs or discounts, we perceive no reason for exempting it from the operation of the statute requiring claimants against decedents' estates to verify their demands; nor do we think an action to revive a judgment already rendered less a suit. than any other civil proceeding for the enforcement of a debt."

But in Cole v. Robertson (1851) 6 Tex. 356, 55 Am. Dec. 784, it was held under a statute requiring presentation of a claim for money, that presentation was not necessary to enable one to maintain a suit against an administratrix to revive a judgment against the intestate, the lien of which had been preserved by the regular issue of execution. The court, however, said: "We admit that if the judgment had, by lapse of time and the negligence of the plaintiff, become dormant, so as to have lost its lien,