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one year after the original grant of might have accrued after the death administration, nor unless the demand of S. J. Roddy, in law, would be conhas been exhibited to the adminis- sidered as having been made by the trator and payment demanded; and administrator, and such would not by § 2 it is provided that no such ac- fall within the purview of the stattion shall be sustained unless the de- ute.mand was exhibited to the adminis- In Martin v. Saxton (1916) 48 Utah, trator within two years after the 488, 160 Pac. 441, which was an action original grant of administration against an executor to foreclose a These provisions, however, do not ap- mortgage and for a deficiency judgply to claims arising against adminis- ment, it appeared that the mortgage trators after the grant of adminis- was not executed by the deceased, but tration, which are founded rather by the executor on behalf of the esupon their private liability for breach tate, and by order and authority of of duty, than upon their obligations the court, in the course of adminisas representatives of their intestates. tration of the estate and long after Such claims may not arise at all until the time for presentation of creditors' after the lapse of two years from the claims. Judgment was rendered for original grant of administration, and the plaintiff, the mortgaged premises of course could not be exhibited in ordered sold, the plaintiff allowed an the time limited by these provisions. attorneys' fee, and provision made for This furnishes a strong argument deficiency judgment. The only against a construction of these pro- point made was that the action was visions that should extend them be- not maintainable, because it was not yond demands against the testator or alleged nor found that the claim sued intestate, existing at his death, inas- on was presented to the executor as much as they could have no practical provided by Comp. Laws 1907, § 3858; application; and so we think it has and because it was not alleged in the always been understood. By the law complaint that all recourse against of 1789, 1 N. H. Laws, 212, § 18, the property of the estate, other than that provision clearly applies only to covered by the mortgage, was waived; claims against the estate existing at and especially that the plaintiff, withthe decease; and so is the law of Jan- out presentation of the claim, was not uary 2, 1829, ed. 1830, p. 370. The entitled to an attorneys' fee nor to a General Statutes are the same as the deficiency judgment. The court said: Revised Statutes, which are but a re- “We think the demands and claims vision of the older statutes, and not referred to in the statute requiring intended to change them; and this is presentation are those arising out of shown by subsequent decisions under contracts or transactions with the the Revised Statutes, which hold that decedent, and not to claims or transthe design of the statute requiring the actions had with the executor or ad-, exhibition of claims to the adminis- ministrator." trator was to bring them to his knowl

6. Contingent claim. edge, so that he might be enabled to

In Texas it has been held that judge in what manner the estate

where a claim is contingent, and for should be settled.

This is

an uncertain amount, it is not within clearly the object of these provisions,

a statute requiring the presentment and it could have no application to

of a "claim for money" before suit demands subsequently arising against can be brought thereon. Sutton v. the administrator in his private ca- Page (1849) 4 Tex. 142; Evans V. pacity, as is the case with the present Hardeman (1855) 15 Tex. 480; King claim.”

v. Cassidy (1871) 36 Tex. 531; Blum In Roddy v. Harrell (1897) Тех. . v. Welborne (1882) 58 Tex. 157; Wells Civ. App. — 40 S. W. 1064, which v. Hobbs (1909) 57 Tex. Civ. App. 375, was an action against the adminis- 122 S. W. 451; Hume v. Perry (1911) trator of the lessee to recover rent, Tex. Civ. App. 136 S. W. 594. the court said: “For such rents as So, in Hume v. Perry (Tex.) supra, it was said: "While the language of certainly not the intention of the the statute is general, and is suffi- legislature to deny to holders of this ciently comprehensive in terms to in- character of claims the right to enclude all claims for money against force same against the estate of a the estate of a deceased person, the decedent. The object of this statute courts have limited its application to was to provide a prompt and inexthose where the amount claimed is pensive method for the settlement of fixed and definite, not contingent or claims against estates when the indeterminate, and which are suscep- amount claimed is liquidated, or is tible of verification by affidavit." susceptible at the time of presenta

In Sutton v. Page (Tex.) supra, it tion of being reduced to a definite and was held under a statute providing specific sum which the administrator that no holder of a claim for money would be justified in allowing, and it could bring suit thereon unless the has no application to any other charclaim had been presented to the ad- acter of claims. That contingent ministrator, that where, in an action claim, or one for an uncertain amount, for breach of a covenant of a bond for should not be presented to an admintitle, the petition disclosed that it was istrator for allowance, is well setnot in the power of the defendant to tled." make the title, and did not allege any In Evans v. Hardeman (1855) 15 special damage, the measure of dam- Tex. 480, it was held that a guaranty ages was the purchase-money paid, by a locator that, if the obligee would with interest, and that in such a case accept a certain location he should the bond for title was a claim for

get a certain price per acre for it, money, within the meaning of the stat- was a claim for unliquidated damute. It was, however, declared that ages, presentment of which was not bad the plaintiff alleged facts in his necessary before bringing suit. The petition, requiring the intervention of court said: "It is objected to the a jury to ascertain his damages, it judgment that the claim was not prewould have presented a very different sented to the administrator before question.

bringing the suit. But to this, it is In National Guarantee Loan & T. a sufficient answer that the petition Co. v. Fly (1902) 29 Tex. Civ. App. was framed with a double aspect in 533, 69 S. W. 231, it was said in regard respect to the relief sought. In the to a contingent claim or one for an aspect in which it was maintainable, uncertain amount: “The language of and was maintained, it was a demand the statute is: 'Every claim for for uncertain or unliquidated dammoney against a testator or intestate ages; being the amount which the shall be presented,' etc. That this land fell short in value of the sum language is not to be construed in the of $1 per acre; and being a sum broadest and most unrestricted sense which was uncertain, and could only is, we think, evident from the other be rendered certain by proof, it was provisions of the statute, directing not necessary that it should have that all claims allowed by an admin- been presented to the administrator istrator must be accompanied by an for allowance." affidavit in writing, to the effect that the claim is just, and that all legal

7. Continuance or revival of action. offsets, payments, and credits known A statute requiring presentation of to affiant have been allowed thereon. a claim to an executor or adminisThis provision of the statute clearly trator before a suit can be brought precludes the presentation of an un- on it has been held to be inapplicable certain or contingent claim, because to those cases where a suit was comno person can be required to swear menced against the testator or intesthat a claim for a stated amount is tate before his death, and was rejust, when, from the nature of the vived against his representative after claim, the amount is necessarily un- his death. Apperson v. Hazelrigg certain and contingent, and it was (1880) 2 Ky. L. Rep. 64; Gray v. Pat

V.

ton (1881) 3 ky. L. Rep. 393; Musser California.-Morse v. Steele (1906) v. Chase (1876) 29 Ohio St. 577. See 149 Cal. 303, 86 Pac. 693. also Clodfelter v. Hulett (1884) 92 Idaho.-FLYNN DRISCOLL (reInd. 426; Newman v. Gates (1904) ported herewith) ante, 352. 165 Ind. 171, 72 N. E. 638, 6 Ann. Cas. Maine.-Maine Cent. Institute v. 649. But see United States v. Hailey Haskell (1880) 71 Me. 487. (1882) 2 Idaho, 22, 3 Pac. 263.

Montana.-Brown V. Daly (1906) And, even though such a provision 33 Mont. 523, 84 Pac. 883; Ullman Co. may be regarded as applicable, it may v. Adler (1921) 59 Mont. 232, 196 be waived by the representative. Pac. 157. VANCE v. HANSON (reported here- Ohio.-Yager v. Greiss (1886) 1 with) ante, 348.

Ohio C. C. 531, 1 Ohio C. D. 296. In some jurisdictions this situation

Oklahoma.-American Trust Co. v. is controlled by statute. Thus, in

Chitty (1912) 36 Okla. 479, 129 Pac. Home v. Selling (1919) 91 Or. 428,

51. 21 A.L.R. 403, 179 Pac. 261, it was South Dakota.-Murray V. Johnson held that presentation was unneces- (1912) 28 S. D. 571, 134 N. W. 206. sary under a statute providing as fol

In Lundy v. Lemp (1919) 32 Idaho, lows: "No action shall abate by the

162, 179 Pac. 738, it was held that an death, marriage or other disability

action on a claim arising out of a of a party, or by the transfer of any

contract to convey land could not be interest therein, if the cause of the maintained where the claim had not action survive or continue. In case of been presented. the death, marriage or other disability In Maine Cent. Institute v. Haskell of a party, the court may at any time

(Me.) supra, presentation of claim within one year thereafter, on motion,

was held to be a prerequisite to an allow the action to be continued by

action to recover the amount of a subor against his personal represent

scription to a building fund. atives or successors in interest.”

In Roddy v. Harrell (1897) Tex. In United States v. Hailey (Idaho)

Civ. App. —, 40 S. W. 1064, which was supra, the statute provided as fol

an action against the administrator lows: "If any action be pending

of the lessee for rent, the court said: against the testator or intestate at “The other error committed by the the time of his death, the plaintiff court was in charging that the apshall in like manner present his claim pellee was entitled to recover rents to the executor or administrator for

for said storehouse from the time of allowance or rejection, authenticated,

the making of said bill of sale. After as in other cases, and no recovery the making of said bill of sale, Roddy shall be had in the action unless proof occupied and used the storehouse be made of the presentation required until May, 1894, when he died. The by law." It was held that this pro

right of Harrell to rents for that vision bound the United States the

time constituted a claim against the same as any other litigant, and that,

estate of said Roddy; and, under the where the United States had com

statute, in order for him to recover, menced a suit against the intestate

it was necessary that such claim and had revived it against the ad

should have been presented to the ministrator without presenting the

administrator of Roddy's estate, and claim as required by the foregoing rejected by such administrator, beprovision, the suit would be dismissed.

fore suit was authorized to have been 8. Contract generally.

brought; or, if allowed, it should have A statute requiring presentation of been paid in due course of adminisa claim as a prerequisite to an action tration. As said claim was not prethereon applies to claims founded on sented to said administrator, no rea contract.

covery could be had in this proceedArizona. Franklin v. Trickey ing in favor of appellee for said (1905) 9 Ariz. 282, 80 Pac. 352, 11 amount.” Ann. Cas. 1105.

In FLYNN v. DRISCOLL (reported

un

herewith) ante, 352, it is held that a claim for damages for an alleged breach of contract is one which must be presented before suit can be brought thereon.

But in Bullion v. Campbell (1864) 27 Tex. 653, it was held, under a statute requiring presentation of a claim for money before a suit could be brought, that presentation was necessary as a prerequisite to a suit for damages incurred by the breach of a contract for the conveyance of a title to land.

9. Deed. In McDonald v. McElroy (1882) 60 Cal. 484, it was declared that in the case of a breach of covenant of seisin the breach arose as soon as the covenant was executed, and that, in order to reach the assets of the estate on a claim therefor, such claim had to be presented as required by law.

10. Fraud. 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 limited absolutely, under

under the decisions 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 claim founded on a judgment must be Cal. 146, 55 Pac. 783; Golden Gate presented within the time specified Undertaking Co. v. Taylor (1914) 168 or be barred as a claim against the Cal. 94, 52 L.R.A.(N.S.) 1152, 141 Pac. estate, held that such failure did not 922, Ann. Cas. 1915D, 742. But see

operate as a bar in the case before it. Butterworth v. Bredemeyer (1916) 89 In Sanders V. Russell (1890) 86 Wash. 677, 155 Pac. 152.

Cal. 119, 21 Am. St. Rep. 26, 24 Pac.

852, it was held that one holding a 12. Guardianship.

judgment against the owner of a In Gillespie v. Winn (1884) 65 Cal.

homestead must, on the death of the 429, 4 Pac. 411, it appeared that the

judgment debtor, present it to the plaintiff, while a minor, was under

administratrix, the same as any other the guardianship of Emily E. Hers

claim must be presented, before he perger, who died intestate. The de

can maintain any action to enforce it. fendant, Winn, was appointed admin

In Curry v. Bryant (Ky.) supra, it istrator of her estate in 1877. The

was said in this connection: “It beplaintiff reached majority in Septem- ing well settled that the provision of ber, 1881. This action was for an

the Code prohibiting the bringing of accounting as to a fund held by the

ordinary actions against personal decedent as guardian, and was com

representatives without first making menced in June, 1883. No presenta

the required demand is imperative, tion of the claim was ever made to

the only questions to be considered the administrator, and there was evi

in this case are whether the judgdence showing that the trust fund

ment sought to be reversed is a dedid not come into his hands. A non

mand within the meaning of the statsuit was granted. On appeal the

ute, and the proceeding to revive it a court, in affirming the judgment, said:

suit against the personal represent“We think the motion for nonsuit was ative, as contemplated by the section properly granted. The claim on which

of the Code of Practice referred to; the action is based was never pre- and both of these questions must be sented for allowance to the defendant

determined in the affirmative.

As a as the administrator of the estate of

claim evidenced by a judgment, like Mrs. Hersperger, deceased, nor is it

any other asserted demand, may be shown that the money which she re

unjust, or have been paid, or be subceived as the guardian of plaintiff

ject to set-offs or discounts, we perever came into the hands of defendant ceive no reason for exempting it as such administrator, or otherwise.

from the operation of the statute reOn the other hand, the only evidence

quiring claimants against decedents' introduced on the trial tends to prove

estates to verify their demands; nor the exact reverse."

do we think an action to revive a 13. Judgment.

judgment already rendered less a suit In the case of an action founded

than any other civil proceeding for on a judgment, presentation prior to

the enforcement of a debt." the institution of the action has been

But in Cole v. Robertson (1851) 6 held to be essential. O'Doherty v.

Tex. 356, 55 Am. Dec. 784, it was held Toole (1887) 2 Ariz. 288, 15 Pac. 28;

under a statute requiring presentation Sanders v. Russell (1890) 86 Cal. 119, of a claim for money, that presenta21 Am. St. Rep. 26, 24 Pac. 852; Curry tion was not necessary to enable one v. Bryant (1870) 7 Bush (Ky.) 301. to maintain a suit against an adminis

In O'Doherty v. Toole (Ariz.) su- tratrix to revive a judgment against pra, a case not strictly within the the intestate, the lien of which had scope of this annotation, because the been preserved by the regular issue action was against the transferee of of execution. The court, however, property under an alleged fraudulent said: “We admit that if the judgconveyance to subject the property to ment had, by lapse of time and the a judgment lien, the court, although negligence of the plaintiff, become it affirmed the general rule that a dormant, so as to have lost its lien,

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