Ferrall v. Irvine

Weight, J. The District Court did not err in sustaining this demurrer. The language of the statute is, that all claims of this class, if not filed and proved within one year and a half of the giving of the notice required by § 1857, are forever barred, unless the same are pending in the District or Supreme Court, or unless peculiar circumstances entitle the plaintiff to equitable relief. (Section 1873.) It was no excuse for his failure to present his demand for allowance, that he could not present the same to himself as administrator. The statute, § 1369, provides expressly for such a case. He could not serve as such administrator in any matter connected with his claim, but by the statute it was the duty of the county court to appoint a temporary administrator to protect the interests of the estate. Administration was granted then on this estate in June, 1856, and the notice given within thirty days thereafter, the plaintiff being administrator. This action was brought in October, 1858, or about two years and four months after the giving of the notice required by the statute. And all that plaintiff states as an excuse for not sooner filing and proving the same amounts to nothing. There was no fraud, no accident, no mistake. He avers “ suppositions and understandings” on his part, without showing that he had any good reason to suppose, or understand what he states, and least of all, that he did so from any action of the administrator. It was his duty to see that his claim was filed and proved, and in the absence of some fraud, accident or mistake, it is not sufficient that he believed that it had been allowed. Not only so, but he does not pretend even that he had reason to believe that the county judge had approved or passed upon his claim. Then again, that was a demand of $600, and he now claims $4000. And indeed, in any view that may be taken of the case, it seems to us that if the facts [55] stated in this replication can be regarded as sufficient to entitle the plaintiff to equitable relief, then the statute would be without practical force or meaning. Unless the party brings himself within the excepted cases, his claim, if not filed and proved within eighteen months is forever barred. The provision is a wise and necessary one, and we are not disposed to grant the equitable relief contemplated to a party who has full knowledge of the decease of the intestate, and the granting of letters of administration, but who shows negligence instead of diligence in the proof of his demand. Affirmed.