Stewart v. McFarland

• Decision Date: 27 October 1891
• Parties: STEWART v. MCFARLAND ET AL.
• Court: Iowa Supreme Court

84 Iowa 55

50 N.W. 221

STEWART

v.MCFARLAND ET AL.

Supreme Court of Iowa.

Oct. 27, 1891.

Appeal from district court, Linn county; J. H. PRESTON, Judge.

Proceedings for the allowance of a claim on account of a promissory note against the estate of John Stewart, deceased. After hearing the evidence submitted, the claim was disallowed by the court, and plaintiff appeals.Charles W. Kepler, for appellant.

F. C. Hormel, for appellees.

ROBINSON, J.

Plaintiff is the widow of decedent, and defendants are the executors of his estate. Plaintiff asks to have allowed, as a claim against the estate, the amount of a note of which the following is a copy: “January 1, 1877. Twelve months after date, I promise to pay Elizabeth Stewart or bearer six hundred dollars, with ten per cent. interest per annum. Value received. JOHN STEWART.” The defendants plead as a defense that the right of action on the note is barred by the statute of limitations. The plaintiff insists that it was revived by an admission in writing, signed by decedent, that the note was unpaid. The admission relied upon is contained in the will of decedent, which was made on the 1st day of January, 1889, and admitted to probate in March, 1890, and is as follows: “I further give and bequeath unto my said wife, Elizabeth Stewart, two mares named ‘Fanney’ and ‘Nelly,’ three cows, one cookstove, one bedstead, one table, one churn, six chairs, and one thousand dollars, in full payment of her note of six hundred dollars against me, and the further sum of five hundred dollars for her support, the same being in lieu of dower, and in full of all her interest in or to my estate.” The claimant refused to take under the will, and elected to take under the laws of the state. It is not disputed that this proceeding is barred by the statute, unless the cause of action has been revived by the provision of the will we have quoted. Section 2539 of the Code is as follows: “Causes of actions founded on contract are revived by an admission that the debt is unpaid as well as by a new promise to pay the same. But such admission or new promise must be in writing, signed by the party to be charged thereby.” It is well settled that under this statute both an admission that the debt is unpaid and a new promise to pay are not required to revive the cause of action, but either alone is sufficient for that purpose. Ayres v. Bane, 39 Iowa, 519;Mahon v. Cooley, 36 Iowa, 482;Penley v. Waterhouse, 3 Iowa, 441. At common law the admission removed the bar of the statute only when it was of such a nature that a promise to pay might be inferred from it. Hence it has been held that, when the admission is made under such circumstances that a new promise to pay cannot be inferred, as where it is accompanied by a statement that the debt will not be paid, or when it is based upon a condition which has not been performed, it will not operate to revive the cause of action. Penley v. Waterhouse, supra; Chambers v. Garland, 3 G. Greene, 322;Wetzell v. Bussard, 11 Wheat. 311;Roscoe v. Hale, 7 Gray, 274; ...