Stichter v. Cox

• Decision Date: 04 November 1897
• Citation: 52 Neb. 532,72 N.W. 848
• Parties: STICHTER v. COX.
• Court: Nebraska Supreme Court

52 Neb. 532

72 N.W. 848

STICHTER

v.COX.

Supreme Court of Nebraska.

Nov. 4, 1897.

Syllabus by the Court.

1. Provable claims against an estate of a deceased person are barred unless presented to the county court for allowance within the time provided by law.

2. A contingent claim, within the meaning of section 258 et seq. of chapter 23, Comp. St., is a claim against a decedent not absolute or certain, but depending upon some event after the death of the testator or intestate, which may or may not happen.

3. A subsisting demand against an estate of a deceased person, which had matured and was capable of being enforced at law during the lifetime of the decedent, is not a contingent claim.

4. When a grantee of real estate, as part of the consideration for the purchase, assumes and agrees in the deed to pay a certain mortgage on the premises, he is liable for the mortgage debt, and the grantor, immediately upon the maturity of the mortgage, may recover from the grantee the amount due thereon, although the grantor may have paid no part of it.

5. An objection that a cause was tried in the district court on appeal upon different issues from those involved in the court whence the appeal was taken is unavailing in the supreme court, unless seasonably raised in the court below, a ruling obtained thereon, and an exception thereto preserved in the record.

Error to district court, Adams county; Beall, Judge.

Silas A. Stichter filed a claim with A. W. Cox, administrator of the estate of Abraham Yeazel. From a judgment of the district court on appeal of defendant from a judgment of the county court, plaintiff brings error. Affirmed.Tibbets, Morey & Ferris, for plaintiff in error.

Batty, Dungan & Burton, for defendant in error.

NORVAL, J.

Silas L. Stichter presented to the county court of Adams county a claim against the estate of Abraham Yeazel, deceased. The administrator filed objections against the allowance thereof, and upon the trial the county court allowed the claim in full. The administrator prosecuted an appeal to the district court, where there was a trial without a jury, which resulted in the rejection and disallowance of the entire claim. The facts may be summarized thus: On the 30th day of September, 1887, Silas L. Stichter executed a mortgage to one William M. Wilson upon certain real estate in Adams county, to secure the payment of $3,750, due October 1, 1890, and drawing 6 per cent. interest per annum from date; and on the 18th day of November, 1889, Stichter and wife conveyed the land to Abraham Yeazel, by deed of general warranty, subject to said mortgage. In the deed of conveyance, the grantee assumed and agreed to pay the mortgage. On the 18th day of November, 1890, which was subsequent to the maturity of the debt secured by the mortgage, Abraham Yeazel died. Letters of administration were afterwards granted upon his estate, and August 28, 1891, was fixed by the county court for the presentation of claims, and notice thereof was published as required by law. On August 5, 1891, Wilson instituted an action to foreclose the mortgage. A decree of foreclosure was subsequently rendered. The mortgaged premises were sold, and on November 14, 1892, Wilson obtained a deficiency judgment against the said Silas L. Stichter, in the sum of $2,456.83. Thereupon the latter, in satisfaction of said judgment, executed and delivered to Wilson his promissory note for the amount of said deficiency judgment; and on November 16, 1892, Stichter filed his claim against the estate of Yeazel for said sum of $2,456.83.

The contention of counsel for the administrator is that this claim was not filed in the county court in the time prescribed by law, and accordingly is barred. This proposition is assailed by opposing counsel, and the court is called upon to decide whether the claim was presented to the county court in time. The determination of the question necessitates an examination of certain provisions of chapter 23 of the Compiled Statutes. Section 217 of said chapter provides: “The probate court shall allow such time as the circumstances of the case shall require for the creditors to present their claims to the commissioners for examination and allowance, which time shall not, in the first instance, exceed eighteen months, nor be less than six months, and the time allowed shall be stated in the commission.” Section 226: “Every person having a claim against a deceased person proper to be allowed by the judge or commissioners, who shall not, after the giving of notice as required in the two hundred and fourteenth section of this chapter, exhibit his claim to the judge or commissioners, within the time limited by the courts for that purpose, shall be forever barred from recovering such demand or from setting off the same in an action whatever.” As already disclosed, the county court of Adams county, in accordance with the statute, fixed a date for the presenting of claims against the estate of Abraham Yeazel, deceased;and the claim here in dispute was not presented to, nor filed with, the county judge within the period so designated for that purpose. If the provisions of said chapter 23 already quoted govern and control claims like the one under consideration, it is patent that said claim is barred by virtue of said section 226.

It is insisted by counsel for the claimant that the claim was a contingent one against the estate, and afterwards became absolute; therefore section 258 et seq. of said chapter 23 is applicable thereto. Section 258 declares: “If any person shall be liable as security for the deceased, or have any other contingent claim against his estate, which cannot be proved as a debt before the commissioners, or allowed by them the same may be presented, with the proper proof, to the probate court or to the commissioners, who shall state the same in their report, if such claim was presented to them.” Section 259 makes provision for the retaining of funds by the executor or administrator to pay such contingent claim when the same shall have become absolute. Sections 260 and 262 are in the following language: Section 260: “If such contingent claim shall become absolute, and shall be presented to the probate court, or to the executor or administrator at any time within two years from the time limited for other creditors to present their claims to the commissioners, it may be allowed by the probate court upon due proof, or it may be proved before the commissioners already appointed or before others to be appointed for that purpose, in the same manner as if presented for allowance, before the commissioners had made their report; and the persons interested shall have the same right of appeal as in other cases.” Section 262: “If the claim of any person shall...