Estate of Bullard

Harrison, J. The decedent in his lifetime executed his promissory note to the Hibernia Savings and Loan Society, payable February 10, 1887, together with a mortgage upon certain real estate to secure its payment. [356] Prior to the maturity of the note, viz., April 6, 1886, he died, and a document purporting to be his last will and testament, which was presented for probate in April, 1886, was finally rejected January 9, 1893. Letters of administration were issued upon his estate August 15, 1894, and notice to creditors to present their claims to the administrator for allowance was first published March 9,1895. The Hibernia Savings and Loan Society presented its claim upon the aforesaid note and mortgage to the administrator for allowance March 28, 1895, and it was allowed by him and approved by the judge of the court, and filed as an approved claim August 7, 1895. November 25,1895, the administrator rendered the account of his administration for settlement, and included therein the said claim of the Hibernia Savings and Loan Society. At the hearing of the settlement the appellant, one of the heirs of the decedent, contested the allowance of the claim upon the ground that at the time of its presentation and allowance it was barred by the provisions of section 337 of the Code of Civil Procedure of this state. The court overruled his objections, and made an order settling and allowing the account as rendered, to which the contestant excepted. The present appeal is from this order. Section 353 of the Code of Civil Procedure provides: “If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuance of letters testamentary or of administration.” This provision is identical with that contained in section 24 of the limitation act of 1850 (Stats. 1850, p. 346), which was construed in Smith v. Hall, 19 Cal. 85. In that case Cook made his promissory note, and died before its maturity. Letters of administration were not issued upon his estate until more than four years had elapsed after the maturity of the note, and subsequently a claim thereon was presented to the administrator and [357] rejected. In a suit brought thereafter to establish the claim the district court held that it was barred by the statute of limitations, but upon appeal that judgment was reversed, the court saying: “The general rule is that the statute of limitations does not begin to run when no administration exists on the decedent’s estate at the time the cause of action accrued. (Danglada v. De la Guerra, 10 Cal. 386.) And as the general act prescribes four years as the period of limitation on promissory notes, it cannot be held by force of this statute that this claim is barred.....We do not understand the twenty-fourth article, section 24, of the act of limitations as conflicting with the view we have taken. That section only applies to cases where the statute has commenced to run. This construction is evident as well from reason as from the language of the section. The words are, that the plaintiff may bring his suit in the case mentioned ‘after the expiration of the period of limitation,’ and the additional year, etc. The object was not to curtail, but to prolong, the period for suing in the given category.” The above section of the code must receive the same construction. (See, also, Wood on Limitations, sec. 6.) The order is affirmed. Van Fleet, J., concurred.