Jones v. Powning

By the Court, Bonnifield, C. J.: The complaint shows, among other things, that C. C. Powning died at Reno, Washoe county, Nevada, on the 4th day of October, 1898, leaving an estate in said county; that on the 6th, day of December, 1898, Clara A. Powning was duly appointed administratrix of said estate; that on the 17th day of December, 1888, the plaintiff loaned to C. C. Powning, at his request, certificate No. "713, for 250 shares of the capital stock of the Anglo-Nevada Assurance Company, of the value of $18,750, to be used, and which was used, by Powning as collateral security for the payment of his certain promissory note, executed December 17, 1888, to the Bank of California, at San Francisco, for the sum of $18,750; that Powning agreed to pay plaintiff said sum for said stock, or within a reasonable time to return said stock; that subsequently, on the 2d day of January, 1889, said C. C. Powning executed and delivered to plaintiff an instrument in writing, in words and figures following, to wit: “Reno, Nevada, January 2, 1889. This is to certify that on the 17th day of December, 1888, I received from John P. Jones cert. No. 713, Anglo-Nevada Assurance Co. of San Francisco, for 250 shares, to be used, and was so used, by me as collateral security for a certain promissory note given by me on said date to the Bank of California for the sum of $18,750; and should I be unable to meet said note by reason of accident or death, or return of said stock to said John P. Jones, it is my wish and desire that so much of my real and personal property as may be sufficient to cover this honor *402 able obligation shall be sold, to fully and completely reimburse said John P. Jones against any loss on account of his testimonial of friendship. And I so decree to all whom it may concern. C. C. Powning. Witness: Clara A. Powning.” It is also shown by the complaint that said Bank of California in the year 1890 sold said stock so pledged by said C. C. Powning as security as aforesaid for the sum of $21,909 37; that said C. C. Powning has never returned said stock to the plaintiff, or any part thereof, and has never paid said sum of $18,750, or any part thereof, and has never paid any interest thereon. It also appears that on the 28th day of January, 1898, the plaintiff filed with the clerk of the district court his claim against the deceased, setting forth said instrument, and claiming that there was due thereon the principal sum of $18,750, and legal interest on the same in the sum of $13,125; that thereafter the said administratrix allowed said claim to the full amount, $31,875, and that the judge of the district court rejected the whole of said claim. The defendant demurred to the complaint on two grounds. The second ground was “ that it appears upon the face of said amended complaint that the cause of action set forth therein accrued more than six years before the death of C. C. Powning, and that said claim, when presented for allowance as a claim against said estate, was, and now is, barred by the statute of limitation.” The court sustained the demurrer. The plaintiff elected to stand on his complaint, and so stated in open court. The court gave judgment to the effect that the plaintiff take nothing by his said complaint, and that the defendant recover of him her costs, taxed at $1 80. Judgment was entered accordingly. This appeal is taken from said judgment and the order sustaining said demurrer. Counsel for appellant contends that when a claim is presented to an administrator for allowance, although barred by the statute of limitations at the time of the death of the decedent, the administrator may waive the statute and allow the claim, and it becomes a valid claim against the estate. He cites several authorities to support this contention. Respondent’s counsel cite several authorities holding to the contrary. The weight of authority, in our opinion, is against *403 the appellant’s contention, besides, the mandatory provisions of section 113 of the probate act (section 2898, Comp. Laws) settle the question against the appellant, to wit: “ No claim shall be allowed by the executor or administrator or the district judge which- is barred by the statute of limitation at the time of the death of the person whose estate is being administered.” The second contention for appellant is that the statute of limitation did not begin to run against said claim till the death of C. C. Powning, and was not á bar, while it is the contention for respondent that the statute began to run against the claim in 1890, at the time said stock was sold by the bank. Counsel for appellant says: “It is submitted that the words ‘ and should I be unable to meet said note by reason of accident or death, or return of said stock to said John P. Jones,’ make the promise a conditional promise, and attach the condition to the time when any one can determine positively when the statute would begin to run against said promise to pay, because the breach of the contract did not occur until the accident or death occurred which prevented the promisor from paying said note, or return of said stock.” We may not fully comprehend the above contention, but, as we understand it, it is that there was no breach of the contract by C. C. Powning till his death; that by reason of his death he was prevented from paying said note and from returning said stock, and then, at his death, the right of action accrued to the plaintiff, and not before. This contention, we think, is not tenable. The complaint shows that when Powning borrowed the stock he agreed to pay Jones therefor $18,750, or return the stock within a reasonable time. About three weeks thereafter, on the 2d day of January, 1889, he executed said instrument. This, evidently, was some time before the maturity of his said promissory note. By this instrument he expressed a desire that sufficient of his property should be sold to pay Jones for said stock, in case he should be unable to meet said note, -by reason of accident or death, or to return said stock. Evidently, death did not prevent him from paying said note, for his death did not occur until more than six years after *404 his default in paying the same. If he were prevented by accident from paying the note, the accident occurred more than six years before his death. His breach of contract occurred upon his failure “to meet said note,” and when he let said stock be sold as said collateral security, instead of returning it to Jones; and thereupon Jones’ right of action accrued. We do not perceive that said instrument had any value, except as a written acknowledgment of Powning that he had received said stock as a loan, to be used by him as collateral security for the payment of his said promissory note, and his liability for its value if he permitted it to be sold by the bank, or otherwise failed to return it. The plaintiff’s claim against the deceased was barred at Powning’s death by the statute of limitations; and said section of the probate act prohibited its allowance by the administratrix, and its approval by the district judge. (Mouillerat’s Estate, 14 Mont. 245.) The judgment and order appealed from are therefore affirmed.