In re Smith's Estate

• Decision Date: 05 December 1904
• Citation: 101 N.W. 890,13 N.D. 513
• Parties: In re SMITH'S ESTATE.
• Court: North Dakota Supreme Court

13 N.D. 513

101 N.W. 890

In re SMITH'S ESTATE.

Supreme Court of North Dakota.

Dec. 5, 1904.

Syllabus by the Court.

1. Under the statutes of this state the rejection of a claim against the estate of a decedent, either by the executor, administrator, or county judge, is a condition precedent to the right to sue upon it.

2. For the purpose of authorizing actions upon claims, and of limiting the time in which suit must be brought, the constructive rejection which, by section 6405, follows as a result of 10 days' neglect or refusal to allow it, is equivalent to a rejection by written indorsement.

3. A claim may be approved and allowed by a county judge after it has been rejected either by nonaction or by written indorsement, at any time before it is barred by the special or general statute of limitations.

Appeal from District Court, Eddy County; S. L. Glaspell, Judge.

In the matter of the estate of James T. Smith, deceased. From a judgment reversing a judgment allowing a creditor's claim, he appeals. Reversed.

P. M. Mattson, S. E. Ellsworth, and Tracy R. Bangs, for appellants. James A. Manley, for respondents. John Knauf, for respondent Kate Barstow.

YOUNG, C. J.

This appeal was taken by a creditor of the estate of James T. Smith, deceased, from a judgment of the district court of Eddy county, which reversed and set aside a judgment of the county court of that county approving and allowing the appellants' claim of $3,803.50 against said estate.

The record shows that the claim in question was presented to the administrator on February 28, 1903; that he indorsed his allowance thereof on March 9, 1903; that it was presented to the county judge on March 14, 1903, and was approved and allowed by him on May 1, 1903. The claim was allowed by the administrator within 10 days after it was presented. The allowance by the county judge was more than 10 days, but less than 90 days, after its presentment.

The sole contention presented to the district court as ground for reversing the judgment of the county court was that the claim had been previously rejected by operation of section 6405, Rev. Codes 1899, because of the failure of the county judge to approve it within 10 days after its presentation for allowance, that such rejection was irrevocable, and that the county judge had thereafter no legal authority to allow it. The trial court sustained this view, and this appeal involves the correctness of this conclusion.

We are of the opinion that this construction of the statute cannot be sustained. Section 6405, Rev. Codes 1899, which is relied upon, so far as pertinent reads as follows: “When a claim accompanied by the affidavit required in this chapter is presented to the executor or administrator, he must indorse thereon his allowance or rejection, with the day and date thereof. If he allows the claim, it must be presented to the county judge for his approval, who must, in the same manner, indorse upon it his allowance or rejection. If the executor or administrator, or the judge, refuse or neglect to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect is equivalent to a rejection on the tenth day. * * *” The purpose and effect of this section is apparent when considered in connection with the following sections:

Section 6407: “When a claim is rejected, either by the executor or administrator, or the county judge, the holder must bring suit in the proper court, to-wit: Before a justice of the peace, or in the district court, according to its amount, against the executor or administrator, within three months after the date of its rejection, if it be then due, or within two months after it becomes due, otherwise the claim is barred forever.”

Section 6408: “No claim must be allowed by the executor or administrator, or by the judge, which is barred by the statute of limitations. * * * No holder of any claim against an estate shall maintain an action thereon unless the claim is first presented to the executor or administrator. * * *”

Section 6406: “Every claim allowed by the executor or administrator, and approved by the judge, * * * must be ranked among the acknowledged debts of the estate to be paid in due course of administration.”

Section 6410: “A judgment rendered against an executor or administrator, in the district court or before a magistrate, upon any claim for money, * * * only establishes the claim in the same manner as if it had been allowed...