(205 P.)

not recover on evidence showing an entirely, the finding shall be in conformity with the different claim. Wilkes v. Cornelius, 21 Or. preponderance of evidence. 24 Cor. Jur. 348, 352, 23 Pac. 473; Zachary v. Chambers, 857; 0. L. §§ 810, S68. 1 Or. 321.

Recognizing that it is essential to the protection of estates of deceased persons that claims against the same shall be maintained by evidence which is more cogent than would suffice to sustain a like claim against a living person, the Legislature has established the requirement:

The proof offered by the claimant must be directed to the establishment of the services and the value thereof, stated in the claim presented to the administrator, and neither the claim nor the pleadings can be amended to allow proof of an entirely new or different claim. Lichtenberg v. McGlynn, That no claim which shall have 105 Cal. 45, 38 Pac. 541; Etchas v. Orena, been rejected by the executor or administrator 127 Cal. 588, 60 Pac. 45; Betchel v. Chase. 156 Cal. 707, 106 Pac. 81; Barthe v. Rogers, 127 Cal. 52, 59 Pac. 310.

The claimant, however, is not required to confine his evidence to the exact dates and

*

shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant." O. L. § 1241.

By the statutory provision quoted the amounts set forth in his claim. It is suffi- Legislature has prescribed the evidence escient if the claim shown by the evidence is sential to constitute a compliance with the substantially the claim presented to the ad- rule embraced in defendant's requested inministrator. 11 R. C. L. 198; Taylor v. Thie-struction, and which is indispensable to esman, 132 Wis. 38, 111 N. W. 229, 122 Am. St. Rep. 943; Dayton v. Estate of Dakin, 103 Mich. 65, 61 N. W. 349; Field v. Field, 77 N. Y. 294; Enscoe v. Fletcher, 1 Cal. App. 659, 662, 82 Pac. 1075; Pollitz v. Wickersham, 150 Cal. 238, 88 Pac. 911, 916.

tablish a claim against the estate of a deceased person or to create a preponderance of evidence in cases where the same is required.

This statute has been construed to mean that, besides the testimony of the claimant, there must be other material and pertinent testimony supporting that given by the claimant sufficient to go to the jury, and on which it might find a verdict. Goltra v. Penland, 45 Or. 254, 77 Pac. 129; Consor v. Andrew, 61 Or. 483, 123 Pac. 46; Bull v. Payne, 47 Or. 580, 84 Pac. 697.

The claims disclosed by plaintiff's evidence varied only from those presented to the administrator as to the dates that the alleged services began and ended. Both the complaint and claim alleged the performance of continuous services under an entire contract as to each cause of action set forth in the complaint, and the evidence tended to es[7] The rule embodied in defendant's retablish the performance of the services referred to in the claim and under the identi-quested instruction is met when the testimony of the claimant in support of his claim cal contracts stated in the claim; conse

quently there was no material variance be tween the proof and the claims, and no error was committed by the court in refusing to instruct the jury as requested by defendant.

[4, 5] Defendant assigns as error the refusal of the court to instruct the jury as follows:

is corroborated by competent or satisfactory evidence other than the testimony given by the claimant, which corroborative testimony is in itself sufficient to go to the jury, and on which it might find a verdict. The court clearly instructed the jury that the testimony of the claimant in itself alone was not sufficient to warrant a verdict for plaintiff, and that "I charge you further, gentlemen of the jury, there must be other material and competent that claims of long standing, when filed against testimony supporting and corroborating that an estate of a decedent, should be scrutinized given by the claimant, and that such corrobwith care, and in such cases strong and convincing proof should be required before allow-oration was essential in order to warrant a verdict in favor of plaintiff. ing the same."

The language of this request was taken from the case of Scott v. Merrill's Estate, 74 Or. 568, 573, 146 Pac. 99, and expresses a firmly established rule of public policy, which must be observed by executors and administrators, and by courts and juries as well, in determining the existence of claims presented against the estate of a deceased per

son.

24 Cor. Jur. 866.

The court also cautioned the jury as directed in O. L. § 868. The instruction thus given in effect advised the jury as requested, and did so to the extent and in the manner authorized by our statutes. Gauss v. Trump, 48 Mont. 92, 135 Pac. 910.

Defendant moved the court to direct the jury to return a verdict for the defendant, for the reason that more than six years and six months had expired after the last of [6] Notwithstanding that rule, actions such services were performed before the presagainst executors and administrators are entation to the administrator of the claims governed by the general rules that in civil sued upon, and there is no evidence that actions the party having the affirmative of plaintiff or his assignor have rendered any the issue shall produce the evidence to prove services whatsoever to the said Nicholas it, and, when the evidence is contradictory, Lambert, deceased, within the times men

tioned in their duly certified claim intro-lapse of six years and six months from the duced herein. date upon which the right of action accrued. The court overruled the request to direct | Blaskower v. Steel, 23 Or. 106, 31 Pac. 253. a verdict, and, instead thereof, instructed the In the case of Morgan's Estate, 46 Or. jury, in substance, that if they found that 233, 77 Pac. 608, 78 Pac. 1029, Mr. Justice Nicholas Lambert agreed that he would make Bean, speaking for the court said: payment for the alleged services when he sold the farm, such agreement would carrying of letters one holding a claim against an "During the first six months after the grantwith it the assumption on the part of Nich- estate, except possibly when it comes within olas Lambert to sell within such reasonable the provisions of section 18, is prohibited from time as the circumstances would permit, and suing thereon in any event. * * He must, that, if the jury found that a reasonable time of course, present his claim before it is barred for Nicholas Lambert to make the sale of by the statute of limitations; otherwise the his farm, under all the circumstances as dis- executor or administrato is not authorized to closed by the evidence in the case, had elaps- allow it. [Section 1241, Or. L.] The statute ed more than six years and six months prior cannot be tolled by a mere failure to present to the appointment of the defendant as ad- the claim. After it has been presented, however, the claimant is prohibited from suing ministrator, plaintiff's action would be bar- thereon until it is disallowed, and the operation red, and they must find for the defendant, of the statute will be suspended during the but, if they found that a reasonable time time of such prohibition. Blaskower v. Steel, within which to make such sale elapsed be- 23 Or. 106, 31 Pac. 253; Nally v. McDonald, fore the death of Nicholas Lambert, but less 66 Cal. 530, 6 Pac. 390; 19 Am. & Eng. Enc. than six years and six months prior to the Law (2d Ed.) 216." appointment of an administrator, plaintiff's action was not barred.

Defendant predicates error upon the refusal of the court to direct a verdict as requested and upon the instructions given the jury concerning the statute of limitations. The statute provides that:

"An action may be commenced against an executor or administrator at any time after the expiration of six months from the granting of letters testamentary or of administration, and until the final settlement of the estate and discharge of such executor or administrator from the trust, and not otherwise." O. L. § 386. ·

[10] Where a claim is made for labor and services, and the matters specified therein are the outgrowth of an entire contract for continuous labor and services, the demand will be regarded as an entire contract, and the right to bring an action thereon accrues at the completion of the services or at the time the claimant ceased to render the serv ices upon which the claim is based, unless a later date for payment has been fixed by the parties to the contract. 17 R. C. L. 797; Eliot v. Lawton, 7 Allen (Mass.) 274, 83 Am.

Dec. 683.

1917B, 1048, and case note page 1050.

But such action shall not be commenced [11] An obligation which is payable when until after the claim of plaintiff has been certain land is sold is payable at the expirduly presented to such executor or adminis-ation of a reasonable time for effecting the trator, and by him disallowed. O. L. § 387. sale. Noland v. Bull, 24 Or. 479, 33 Pac. [8] No claim may be allowed by the execu-983; Hood v. Hampton Plains Exploration tor or administrator which is barred by Co. (C. C.) 106 Fed. 408; Crooker v. Holmes, the statute of limitations prior to the death | 65 Me. 195, 20 Am. Rep. 687; Hughes v. Meof the decedent, nor will such a claim Ewen, 112 Miss. 35, 72 South. 848, L. R. A. support an action based thereon. Section 1241, Or. L. But, when the time limited by the statute for bringing an action expires subsequent to such death, the statutes (sections 386 and 387, Or. L.) preserve to a creditor the right to bring an action within six months after letters of administration have issued, when the time limited would other wise expire subsequent to the death of the debtor and before the appointment of his personal representative. Blaskower v. Steel, 23 Or. 106, 31 Pac. 253.

[9] The allowance of six months after the issuing of letters of administration before an administrator can be sued is a statutory prohibition within the meaning of section 20, Or. L., and has the effect of suspending the operation of the statute during that time, so that, in cases where the limitation expires subsequent to the six months' period, the claim of the creditor is not barred until the

What is a reasonable time for effecting the sale depends upon the circumstances of the particular case. Hood v. Hampton Plains Exploration Co. (C. C.) 106 Fed. 408, 411.

In the instant case the evidence showed that the promise of the deceased to pay plaintiff for his services when he sold the farm was made in 1899 or 1900. Plaintiff ceased to perform services in October, 1912, more than 12 years after the promise was made. No exceptional circumstances were shown which might have prevented a sale of the premises. Under ordinary conditions, a reasonable time within which to sell a farm such as that disclosed by the evidence is much less than 12 years, and, as a matter of law, a reasonable time for effecting the sale expired a considerable length of time before plaintiff ceased to render services, and the event upon which payment was to be

(205 P.)

made expired before the services contracted | to plead the bar of the general statute of for were completed.

limitations waives that defense the same as like failure upon the part of a private litigant, subject to the right of creditors, heirs, devisees, and legatees to question the accounts of the personal representative in cases of fraud or negligence. 11 R. C. L. 216; 24 Cor. Jur. 837; Woerner, "The American Law of Administration" (2d. Ed.) § 401; Dern v. Olsen, 18 Idaho, 358, 110 Pac. 164. The case last cited is reported in Ann. Cas. 1912A, 1, and L. R. A. 1915B, 1016, in both of which publications an extensive note follows the reported case.

[12] Regarding the services rendered by plaintiff for the deceased as a performance of an entire contract, plaintiff's right of action did not accrue until he had ceased to render services, as the contract was not completed until that time. The date upon which payment became due depended upon two events -the expiration of a reasonable time to effect a sale of the farm and the completion of the services. Payment did not become due until both events had happened. A reasonable time for the sale of the farm elapsed before the services ceased; so the date at While an administrator may waive the dewhich the cessation of services occurred fense of the general statute of limitations by fixed the time when plaintiff's right of failure to plead the same, it is quite uniformaction accrued. Plaintiff ceased to ren-ly held that an administrator does not and der services and thus completed his con- cannot waive a statute of nonclaim or a spetract in October, 1912. Nicholas Lambert cial statute of limitations applicable to died November 10, 1916, at which time four claims against the estate of a deceased peryears and approximately one month had son by failure to specially plead them. elapsed since plaintiff's right of action accrued. Letters of administration issued to defendant on November 17, 1916. The statute of limitations was suspended from the date of the death of the decedent until the lapse of six months after letters of administration were issued, which was May 17, 1917. The statute of limitations therefore barred plaintiff's right of action about May 1, 1919. Plaintiff's claims were not presented to the administrator until January 20, 1920, and this action was not commenced until February 25, 1920.

[13] The failure to present a claim to the administrator does not toll the statute. Morgan's Estate, 46 Or. 233, 77 Pac. 608, 78 Pac. 1029. So the claim was barred when presented to the administrator and before this action was commenced.

A number of states have statutes like the Oregon statute which prohibit an administrator or executor from allowing any claim against the estate he represents that is barred by the statute of limitations, and the courts of those states, construing such statutes, hold that the failure to plead the statute of limitations in an action brought upon a claim does not waive the same, and that it is the duty of the court to give effect thereto at any stage of the proceedings when the matter is brought to its attention. Reay v. Heazleton, 128 Cal. 335, 60 Pac. 977; Vrooman v. Li Po Tai, 113 Cal. 302, 45 Pac. 470; Boyce v. Fisk, 110 Cal. 107, 42 Pac. 473; Butler v. Johnson, 111 N. Y. 212, 18 N. E. 643; Jones v. Powning, 25 Nev. 399, 60 Pac. 833; Clayton v. Dinwoodey, 33 Utah, 251, 93 Pac. 723, 728, 14 Ann. Cas. 926; Fullerton v. Bailey, 17 Utah, 85, 53 Pac. 1020; In re Mouillerat's Estate, 14 Mont. 245, 36 Pac. 185; O'Keefe v. Foster, 5 Wyo. 343, 40 Pac. 525; Murtha v. Donohoo, 149 Wis. 481, 134 N. W. 406, 136 N. W. 158, 41 L. R. A. (N. S.) 246.

[14] Defendant attempted to plead the statute of limitations, but alleged that the action had not been brought within six years after plaintiff's cause of action accrued, while the period of limitations was six years plus the time which expired between the death of the decedent and the expiration of six months after letters of administration | 335, 60 Pac. 977, the court said: issued. The authorities hold that a plea of a shorter period of limitation than the one applicable to the case is no plea at all. Downey v. Atchison, T. & S. F. R. Co., 60 Kan. 499, 57 Pac. 101; Bridgforth v. Payne, 62 Miss. 777; Hunter v. Hunter, 50 Mo. 445; Bruce v. Baxter, 7 Lea (Tenn.) 477.

In the case of Reay v. Heazleton, 128 Cal.

"As between parties acting in their own right, the plea of the statute of limitations is unqueswaived. But an executor or administrator, acttionably a personal privilege which may be ing for others, and in a trust capacity, is not vested with this privilege, and may not waive such a defense. By section 1499 of the Code of Civil Procedure the personal representative, as well as the judge of the superior court, is forbidden to allow any claim which is barred by the statute of limitation. It would be a most unto permit an executor or administrator by his warranted evasion of this mandatory provision failure to invoke the plea to suffer judgment upon a claim which, when presented to him, he was bound by law to reject because of the bar [16] In the absence of a special statute, of the statute. In Vrooman v. Li Po Tai, 113 the failure of an executor or administrator | Cal. 302 [45 Pac. 470], it was held that the ad

[15] The defense of the statute of limitations is waived by failure to plead the same. O. L. § 72; Davis v. Davis, 20 Or. 78, 25 Pac. 140; Hawkins v. Donnerberg, 40 Or. 97, 66 Pac. 691, 908; Ausplund v. Etna Indemnity Co., 47 Or. 10, 81 Pac. 577, 82 Pac. 12; Creason v. Douglas County, 86 Or. 159, 167 Pac.

796.

ministrator, by appearing and answering, could not waive the objection that the claim in suit was barred by the statute; and in Boyce v. Fisk, 110 Cal. 107 [42 Pac. 473], it is declared that an administrator will not be permitted to waive the statute of limitations upon à claim

which is barred. To like effect is Butler v.

Johnson, 111 N. Y. 212 [18 N. E. 643]. The same principles must apply here, and, however tardily the plea may have been presented, since the facts appear of record, and are now called to this court's attention, it must be held that plaintiff's right of action upon the judgment is barred by the statute of limitations."

The statute (O. L. § 1241) provides: "No claim shall be allowed by the executor or administrator or the county court which is barred by the statute of limitation."

The evidence disclosed that plaintiff's claims when presented for allowance, and, when this action was commenced, were barred by the statute of limitations, and the jury should have been directed to return a verdict for defendant as requested.

The judgment of the circuit court is reversed, and the cause remanded for such other proceedings as may seem proper, not inconsistent with this opinion.

BURNETT, C. J., and BEAN and BROWN,

[17] Before an administrator can allow a claim against the estate which he represents, the claim presented must show a subsisting liability in favor of the claimant. | JJ., concur. Zachary v. Chambers, 1 Or. 321, 324; Wilkes v. Cornelius, 21 Or. 348, 350, 28 Pac. 135; Goltra v. Penland, 45 Or. 254, 77 Pac. 129; De Golia v. Anderson, 101 Or. 94, 198 Pac. 236.

In Wilkes v. Cornelius, 21 Or. 348, 351, 28 Pac. 135, 136, the court speaking through Mr. Justice Bean, said:

"The claim in the case at bar, as presented, did not show any liability against the estate, and the executor for his own protection was necessarily compelled to disallow it. An executor stands as the representative of all the creditors as well as the heirs, legatees, and distributees, and however liberally disposed he may be to waive technical defenses and deal with creditors on the basis of substantial justice, he is not at liberty to waive the technical rights of those whom he represents."

BROWN v. DRAKE et al.

(Supreme Court of Oregon. April 18, 1922.) Descent and distribution 140-Heirs not suable, where claims not presented against estate.

In view of Or. L. §§ 1238, 1239, relating to presentation of claims against estates of decedents, where an action was begun prior to testator's death and after his decease no claim was presented during the administration of his estate by plaintiff, after such final settlement, plaintiff's claim was barred, and heirs of decedent could not be substituted as parties de

fendant.

Department 1.

Appeal from Circuit Court, Klamath County; D. V. Kuykendall, Judge.

Action by Joseph Brown against Thomas Drake and others. From an order denying plaintiff's motion to substitute Ella Drake and another, daughters of Thomas Drake, deceased, plaintiff appeals. Affirmed.

[18] A claim against an estate which the administrator and courts and juries are expressly prohibited from allowing can hardly be regarded as a subsisting claim against the estate. Section 1241, O. L., has the effect of excepting claims against the estate of a deceased person from the operation of the statu tory rule of pleading that the defense of the On June 14, 1918, Joseph Brown instituted statute of limitations is waived unless af- an action at law against Thomas Drake to firmatively pleaded, and also establishes as recover money paid for legal services peran essential element of every valid claim formed or to be performed by Drake. The against an estate that such claim shall latter answered, and the cause was put in have accrued within the period of the stat-issue by the filing of Brown's reply on July 5, ute of limitations expiring immediately prior to its presentation for allowance. hibition of the statute is comprehensive. It

reads:

The pro

"No claim shall be allowed by the executor or administrator or the county court which is barred by the statute of limitation"

1918.

There has been no trial of the facts, and no further pleadings were filed, or steps of any nature taken until nearly two years after issue drawn. On April 3, 1920, plaintiff Brown filed his motion for substitution of

parties defendant, requesting the addition of the respondents Ella and Ruth Drake.

During the interim mentioned, to wit, on -thereby depriving the administrator and May 27, 1919, defendant Drake died testate. the courts of all power and authority pre-His will was probated in Klamath county, viously possessed by them to waive the bar Or., an executrix was duly appointed by of the statute of limitations in respect to the county court of that county, the required For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *For corrected opinion, see 210 Pac. 710.

(205 P.)

notice was given to creditors of the estate time allowed by statute and before final setaccording to law, the regular and legal time tlement, the application to continue or revive was allowed creditors for the presentation of the case is in itself a sufficient presentation claims, the usual probate proceedings were to comply with the statute. 18 Cyc. 453, had, and the estate was closed and the ex- and cases there cited. The view that a reecutrix discharged; all of which was done vivor against the executor is a sufficient preswithout this appellant having filed or pre- entation was taken in this state in the case sented any claim whatsoever against the es- of The Home v. Selling, 91 Or. 428, 179 Pac. tate of said Thomas Drake, deceased. 261. In that instance May and his guardian were sued, and, pending the litigation, May died, whereupon, and within the six months allowed for the presentation of claims, application was made to substitute his executors as defendants, which was allowed. court held that under such conditions no presentation of the claim was necessary.

The sole question for decision, in substance, is this: Is the appellant, in his attempt to revive the action and proceed against the heirs, barred by his own failure to present a The circumstances in that case, however, claim to the executrix or to move for substi- were far different from those existing here, tution before the time for presentation of wherein the party presented no claim against claims had elapsed? Or, in other words: If the estate to the executrix, but waited unappellant would substitute the heirs of de- til after the probate proceedings were closed cedent and proceed against them as parties and the executrix had been discharged, bedefendant, was it necessary that he should fore asking to have his action at law reSuch a first present his claim to the executrix in vived as against the devisees. due time or make his motion for substitution proceeding would present several incongrubefore the expiration of the time limited for ities. Plaintiff's cause of action was personal presentation of claims?