Barto v. Stewart

• Decision Date: 04 December 1899
• Citation: 21 Wash. 605,59 P. 480
• Parties: BARTO v. STEWART et al.
• Court: Washington Supreme Court

59 P. 480

21 Wash. 605

BARTO v. STEWART et al.

Supreme Court of Washington

December 4, 1899

Appeal from superior court, Pierce county; J. A. Williamson, Judge.

Action by Fred D. Barto, as receiver of the Bank of Puyallup against M. A. Stewart and another, executors of J. P. Stewart and another. Judgment for plaintiff, and defendants appeal. Reversed.

Remington & Reynolds, for appellants.

Walter M. Harvey and John Leo, for respondent.

FULLERTON, J.

The Bank of Puyallup was organized as a banking corporation under the laws of the state of Washington on the 10th day of September, 1890, with a capital stock of $100,000, divided into 1,000 shares, of the par value of $100 each. On the 26th day of May, 1893, the bank closed its doors and discontinued business as a going concern, and on the 7th day of June 1893, in an action brought in the superior court of Pierce county for that purpose, was by that court adjudged insolvent; and the respondent was appointed receiver of its property, for the purpose of winding up its affairs and distributing its property among its creditors. The receiver took possession of the property of the bank, and, under the direction of the court appointing him, reduced its property to cash, and from time to time distributed the same pro rata among the creditors according to the amounts of their respective claims. The last of this property (so the court found on the trial) was converted into cash on the 5th day of August 1897; and until that date it was not ascertained or determined by exact amount there would remain due to the creditors after the property of the bank in the hands of the receiver should be applied thereon. The amount so due was found to be $39,095.52. At the time of the organization of the Bank of Puyallup one J. P. Stewart subscribed for, and there were issued to him, 10 shares of its capital stock. Stewart continued to be a stockholder therein during the life of the corporation, and owned such shares at the time the bank was adjudged insolvent. He died testate on the 13th day of January, 1895, leaving estate in the county of Pierce, state of Washington, and in his will named the appellants as executrix and executor thereof, who duly qualified as such. The appellants immediately upon their qualification caused the statutory notice to be given requiring all persons having claims against the estate of the decedent to present them within one year from the date of the first publication, which was made on the 8th day of February, 1895. No claim for the liability sued on in this action was presented to the executrix and executor within the year limited for the presentation of claims, nor until the 25th day of September, 1897, at which time the receiver presented a verified written demand for the amount claimed to be assessable against the shares of stock owned by J. P. Stewart under the superadded liability provided for in the constitution (article 12, § 11). The claim was rejected, and the receiver was on the 27th day of the same month ordered by the court to prosecute this action to recover the amount claimed to be due. The action was begun on the 15th day of October, 1897, and resulted in a judgment against the executrix and executor for the sum of $3,909.55, and interest from the date of the commencement of the action. From that judgment this appeal is taken.

While many errors are assigned for reversal, the principal contention is over the statute of limitations. It is contended by the appellants that the action is barred because of the failure to present the claim within the year limited by law in which to present claims against the estates of decedents. As the view we have taken of this question is decisive of the case, it is unnecessary to discuss the other questions raised.

The statute (section 6226, 2 Ballinger's Ann Codes & St.) enacts that every executor or administrator shall, immediately after his appointment, cause to be published in some newspaper printed in the county a notice to the creditors of the deceased, requiring all persons having claims against the deceased to present them, with the necessary vouchers, within one year after the date of such notice, at a place to be specified in the notice. By section 6228 it is provided, 'If a claim be not presented within one year after the first publication of the notice, it shall be barred.' And by section 6235, 'No holder of any claim against an estate shall maintain an action thereon, unless the claim shall have been first presented to the executor or administrator.' The respondent contends that the liability sued on in this action is not a claim, within the meaning of the provisions of the statute above cited. He argues that the statute refers only to legal demands, and was not intended to apply to a liability of a purely equitable nature, which the receiver must go into a court of equity to enforce; that the claim sued on was, at the time the statute was running, of an uncertain and contingent character, and it could not be ascertained during that time what, if anything, would be required to be paid; that the presentation of a claim under such circumstances would be an idle ceremony, and the law does not require a vain and useless thing. He argues further that this construction is supported by that section of the statute (section 6229) which requires that every claim presented to the administrator shall be supported by the 'affidavit of the claimant that the amount is justly due, that no payments have been made thereon, and that there are no offsets to the same to the knowledge of the claimant,' for the reason that this affidavit could not have been made to the claim sued on in this action during the time the statute was running. Were the sections of the statutes cited all that appeared on the subject of claims, there would be much force to the contention made. But the statute refers, in terms, to contingent claims. By section 6338 it is provided: 'If there be any claim not due, or any contingent or disputed claim against the estate, the amount thereof, or such part thereof as the holder would be entitled to if the claim were due, established, or absolute, shall be paid into the court, where it shall remain, to be paid over to the party when he shall become entitled thereto; or if he fail to establish his claim, to be paid over or distributed, as the circumstances of the case may require. * * *' It also refers in terms to claims not due. By section 6245 it is provided that the executor or administrator is required at stated times to present a statement of claims in which he shall designate 'the nature of each claim, when it did or will become due, and whether it was allowed or rejected by him,' and a special provision is made for the payment of claims not due when the administration is ready to be closed (section 6338). The word 'claim,'...