owned by or in which the deceased had an interest at the time of his death, and of which the administrator or executor was entitled to the custody for administration and distribution. We are therefore of the opinion that plaintiff's claim required presentation.

This brings us to the further question as to whether the proceedings had in the premises were equivalent to the presentation of a claim. As before observed, no claim was presented to the executors before the commencement of the suit. The plaintiff had until the 10th day of September, 1906, in which to present his claim. Without first presenting it to the executors, he commenced this action on the 23d day of March, 1906. The complaint filed by him was verified. To it was attached a copy of the deed. The complaint contained substantially all the averments necessary to be set forth in a regularly verified, presented claim, and was served upon the executors. The action was brought to have the claim established and paid out of the general funds of the estate. We are of the opinion that the commencement of the suit and the service upon the executors of the verified complaint within the time in which a claim could have been properly presented operated as a presentation of the claim. In this we are amply sustained by the authorities. On this question, in 18 Cyc. 452, it is said: "According to the weight of authority, the commencement of a suit and its continuous prosecution operates as a presentation of the claim or obviates the necessity of presentation." The text, among other cases cited there, is supported by the following: Fillyau v. Laverty, 3 Fla. 72; Roberts v. Flatt, 142 Ill. 485, 32 N. E. 484; Floyd v. Clayton, 67 Ala. 265; Moore v. McKinley, 60 Iowa 367, 14 N. W. 768. The case of Fillyau v. Laverty, supra, is much in point. There the statute provided that "all debts and demands, of whatsoever nature, against the estate of any testator or intestate, which shall not be exhibited within the said two years, shall be forever barred." As to the necessity of presenting claims, and what will be regarded as equivalent to a presentation, the court said:

"As to the question, what shall constitute an exhibition of a debt or demand against an estate, we think there should be actual presentation of the claim within the time prescribed, or something done by the party equivalent to it. The presentation need not be in any particular form, but sufficient to give such notice to the executor or administrator of the existence of the debt or demand, its character and amount, as would enable him with reasonable certainty to provide for its payment. Mere knowledge on the part of the executor or administrator of the existence of the claim is not enough. The party holding the claim or demand must pursue some measures to present his demand, and not remain passive, or sleep upon his right. The bringing of a suit or action at law or in equity we would regard as equivalent to an actual presentation."

Cases from the courts of New Jersey are cited in Cyc., supra, as being contrary to the text, principally Newbold v. Fenimore, 53 N. J. Law, 307, 21 Atl. 939, and Robins v. Arnold, 42 N. J. Eq. 511, 8 Atl. 721. The second case does not appear to be much in point, for it seems the bill filed in chancery was unverified, and it was observed that "there was therefore neither verification nor admission of the claim in question within" the period in which a claim could have been properly presented. The reason given in the first case doubtless has much force when applied to the procedure there, but it is not persuasive when applied to our procedure. It is:

"The presentation of claims of creditors within the limited time is, moreover, important to enable the personal representative to determine whether the estate is to be settled as a solvent or insolvent estate, or whether real estate must be resorted to for payment of debts. Upon the construction contended for, such determinations could not be made until after final judgment in every suit brought during the time limited in the rule to bar creditors."

The reason given why claims are required to be presented is proper enough, but the statement that "such determinations could not be made until after final judgment" has no force when applied to our probate procedure. The apparent purpose of the statute requiring presentation of claims is said to be:

"First, to furnish the administrator with pertinent evidence touching their validity and justness, by means of which he may determine for himself whether they ought to be paid out of the funds of the estate; and, second, to enable him to justify his acts, in some measure at least, in accounting with the county court." (Willis v. Marks, 29 Or. 493, 45 Pac. 293.)

And, as stated in 1 Abbott's Probate Law, sec. 468, "to give creditors and other persons interested notice of the condition of the estate and to expediate its settlement." Of course, mere knowledge on the part of the executor or administrator of the existence of a debt or claim against the estate is not sufficient to dispense with the necessity of presentation. But when, as here, the executors are served with a copy of a verified complaint in an action commenced seeking to establish a claim, and which substantially contains all the averments required in a regularly presented claim, and such suit is commenced and the summons and complaint served upon the executors within the time in which a claim could be properly presented, we can perceive no good reason why they were not afforded equal opportunity and given every means to determine the justness of the claim, and whether it ought to be paid out of the funds of the estate, as fully as though the claim had been regularly presented within the time fixed in the published notice without suit. When a claim is regularly presented, the administrator or executor has ten days to determine whether he will allow or reject the claim. Presented in the form it was, the executor had twenty days before he was called on to act to determine the justness of the claim and whether it ought to have been paid out of the estate. If the plaintiff had not filed his suit, but had waited until the 1st day of September, 1906, and then had regularly presented his claim to the executors, in what way would they have been afforded better means to investigate the justness of the claim, and in what manner could they better have determined whether it ought to have been paid out of the estate, or in what respect would it better have facilitated or expedited the settlement of the estate? If such had been done, and if the executors had then denied what they denied here in their answer, the claim would have been rejected and

the plaintiff would have been required to establish it in court, as was done by him. If, on the other hand, the executors in such case had allowed the claim and avoided the necessity of a suit to establish it, they equally had the opportunity in April, 1906, after the suit had been commenced, to confess the demand, if, on investigation, they found it to be just, and end the litigation.

It cannot be said that the presentation of the claim to the executors was jurisdictional. (O'Brien v. Larson, 71 Minn. 371, 74 N. W. 148.) It is quite true that it was held in Harp v. Calahan, 46 Cal. 222, that, without having first presented a claim for allowance, the claimant had no cause of action, and that the administrator could not waive the necessity of presenting a claim for allowance. But the particular question under consideration-whether the commencement of a suit within the time in which a claim could have been properly presented operates as a presentation of the claim-was not there involved. What was said by the court was in respect of a fact which was a material, and not a jurisdictional, averment. This is apparent from both prior and subsequent holdings of that same court. In the case of Bank of Stockton v. Howland, 42 Cal. 129, and in Drake v. Foster, 52 Cal. 225, it was held, under statutes identical with ours, that an objection to a recovery on a claim against the estate of a deceased person on the ground that it was not presented to the executor for allowance cannot be made for the first time in the Supreme Court, nor on motion for a new trial. In McCann v. Pennie, 100 Cal. 547, 35 Pac. 158, in speaking of section 1500 of the California Code of Civil Procedure, which corresponds with section 3858 of our Code, and where it is provided that no holder of any claim against an estate shall maintain any action thereon unless the claim was first presented to the executor or administrator, the court said it was

"analogous to the statute of frauds, which declares that no action shall be maintained on, etc., unless, etc.; and the bar of the statute must be pleaded in defense, unless the complaint shows upon its face that the contract is void under the statute; and a similar rule prevails in regard to the statute of limitations."

And in Falkner v. Hendy, 107 Cal. 49, 40 Pac. 21, 386, it was held that proof of the presentation of the claim was not essential to the validity of the judgment. This case was cited with approval in the subsequent case of Frazier v. Murphy, 133 Cal. 95, 65 Pac. 326. This principle, however, must not be confused with that involved, where the claim is barred by the general statute of limitations, and because of the bar cannot be allowed by the executor or administrator or the judge, as provided in section 3857, or where the claim was neither presented nor suit commenced within the time in which the claim could properly have been presented. For the defense that the claim is barred by the statute of limitations cannot be waived by the executor or administrator. (Fullerton v. Bailey, 17 Utah 85, 53 Pac. 1020; Reay v. Heazelton, 128 Cal. 335, 60 Pac. 977.)

Had the claim here been barred by the general statute of limitations, or by the special statute, such as where a claim had been presented and rejected by the executors and suit was not commenced within the time provided by the statute, or where no claim had been presented nor suit commenced within the time in which a claim could have been properly presented, the bar of the statute would be a complete defense. But where the suit is commenced under the circumstances heretofore shown, the commencement of the suit operates as a presentation of the claim. In such case, if the executor or administrator, on investigation, finds the claim to be just, and determines that it ought to be paid by the estate, he may confess the demand within the time in which he is required to appear in the action and plead to the merits, and, if he does so, there should be no judgment for costs. If, however, issues are joined as to the merits of the claim and material allegations with respect thereto are denied, and the plaintiff is put upon his proof to establish his claim, then costs should follow as though suit had been brought on a rejected claim. The plaintiff having commenced the action within the time in which a claim could have been presented, before giving the executors an opportunity to pass on the claim, the action at most was only prematurely brought. A premature institu