Barry v. Minahan
107 N.W. 488
Wis.
1906
Check Treatment
KbewiN, J.

Tbe question raised by the first assignment ■of error and tbe controlling one upon this appeal is whether tbe claim of the respondent was barred because not presented to tbe -county court- within tbe time allowed by tbe order for tbe presentation of claims against tbe estate of Jobn Min-aghan, deceased. Tbe time fixed by the order expired on tbe fith day of January, 1902, and tbe claim of tbe respondent *573was presented by petition in February, 1904. Tbe claim is' based upon a loan made by Catherine Minaghan to John Min-aghan, her husband, about a year before her death, payable-on demand. The petition for the allowance of the claim alleged these facts and the testimony tended to establish them.. The respondent’s claim, therefore, is based upon a loan which was due and enforceable before the death of John Minaghan or his wife, Catherine Minaghan. Upon well-established principles of law, the cause of action to recovеr money loaned upon demand accrues at the time of the loan. Hall v. Letts, 21 Iowa, 596; Ware v. Hewey, 57 Me. 391; Kimball v. Kimball, 16 Mich. 211; Cook’s Adm’rs v. Cook, 19 Tex. 434; Baxter v. State, 17 Wis. 588; Curran v. Witter, 68 Wis. 16, 31 N. W. 705; Schriber v. Richmond, 73 Wis. 5, 40 N. W. 644; Turner v. Iron Chief M. Co. 74 Wis. 355, 43 N. W. 149.

“A cause of action accrues where there exists a claim capable of present enforcement, a suable party against whom it may be enforсed, and a party who has a present right to enforce it.” Murphy v. Omaha (Neb.) 95 N. W. 680; Arnold’s Heirs v. Arnold (Ky.) 82 S. W. 606; 19 Am. & Eng. Ency. of Law (2d ed.) 193; Weiser v. McDowell, 93 Iowa, 772, 61 N. W. 1094; Smith v. Bythewood, Rice, Law (S. C.) 245, 33 Am. Dec. 111.

The cause of action set up in the petition and claim filed existed in favor of Catherine Minaghan, and was capable of' being enforced by her for a period of about a year before her death, and was during such time an accrued, valid, and existing cause of action, which she had a right to enforce. She-had from the time of Hie loan down to the time of her death a present right to enforce the claim against her1 husband, and it passed to her estate an accrued claim against her husband,, and at the- time of his death was a valid, existing claim against his estate. The court below held that the claim was: enforceable against the estate of John Minaghan, deceased, notwithstanding it had not been presented during the time-*574■required by the order for the presentation of claims, upon the theory that it did not accrue against the estate of John Min-aghan, deceased, ‍​​​​‌‌​​​‌​‌‌​‌‌​​‌​​​​​‌​‌‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌​‌‍until a personаl representative of the estate ■of Catherine Minaghan had been appointed, and therefore was not barred, on the authority of Stehn v. Hayssen, 124 Wis. 583, 102 N. W. 1074. But it will be seen that in the ■Stehn-Hayssen Gase the cause of action did not arise until ■after death, and there this court held that a cause of action which arises after death cannot accrue until there is some person in existence who can bring it, and that there is no person in existence to bring an action in favor of the estate of a deceased person whiсh arises after death until an executor or administrator is appointed. The court below obviously overlooked the distinction between causes of action arising after death and those accruing before death. In the former therе 'is no person in existence who can bring the action until an ■executor or administrator is appointed, while in the case at 'bar there was a person capable of suing, a person to be sued, and an existing accrued cause of action. The distinction is •clearly recognized in the statute (secs. 3840, 3844, 3860, Stats. 1898). The former sections (3840 and 3844) plainly make provision for accrued claims, while sec. 3860 provides for claims which accrue or become absolute after thе time limited for creditors to present their claims, and further pro•vides that the same may be presented and proved at any time within one year after they shall accrue or become absolute. It 'is therefore very clear that Stehn v. Hayssen, supra, doеs not apply to causes of action which accrue before death, and which are valid existing causes of action capable of being enforced before the death of the party against whose estate they •are filed. In other words,, the statutes contemplate two classes ■of claims: first, those accrued and existing at the time of death; and, second, those which accrue or become absolute after death; and it was held in the Stehn-Hayssen Gase that •a cause of action which arises after death cannot accrue until *575there is some person in existence who can bring it. Stehn v. Hayssen, supra, has reference to cases falling under sec. 3860, Stats. 1898, wbicb accrue or become absolute after death, and the doctrine of that case is well supported by thе authorities, some of which are referred to in the opinion of the court, but it is very clear that such cases have no reference to a case like the one at bar. Bucklin v. Ford, 5 Barb. 393; Sanford v. Sanford, 62 N. Y. 553; Baker’s Adm’r v. Baker’s Adm’r, 13 B. Mon. 406. The decision in Stehn v. Hayssen, supra, is strictly confined to causes of action which arise after death, and, therefore, has no application here where the cause of action accrued before the death of either Catherine Minaghan or her husband, John Minaghan. ‍​​​​‌‌​​​‌​‌‌​‌‌​​‌​​​​​‌​‌‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌​‌‍The question, therefore, is whether the respondent has become barred because of failure to present the claim set forth in the petition as required by sec. 3844, Stats. 1898. Sec. 3840, Stats. 1898, provides:

“At the time of granting letters testamentary or of administration the county court, by order, shall fix a time, not less than six months nor more than one year thereafter, as the circumstances of the case may require, within which creditors shall present their claims for examination and allowance. ...”

Sec» 3844, Stats. 1898, provides:

“Every person having a claim against a deceased person, proper to be allowed by the court, who shall not, after notice given as required by sec. 3839, exhibit his claim to the court within the time limited for that purpose shall be forever barred from recovering such demand or from setting off the same in any action whatever.”

The rule is well established that words in a statute must receive a general construction, unless there is in the statute itself some ground for restraining their meaning by reasonable construction, not by arbitrary addition or retrenchmеnt., The statute here contains no exception, but provides that every person having a claim, proper to be allowed, who shall not present it within the time limited, shall be forever barred. *576Such statutes are known as “statutes of nonclaim,”' and1 are generally applied more rigorously than the general statutes of limitation, and in tbe absence of a- saving clause run against all persons. Winter v. Winter, 101 Wis. 494, 77 N. W. 883. Suck statutes bave been beld to bar- married women, infants, and nonresidents, where there is ‍​​​​‌‌​​​‌​‌‌​‌‌​​‌​​​​​‌​‌‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌​‌‍no sаving clause in their favor. 2 Woerner, Adm’n (2d ed.) § 402, and cases- there cited; Richardson v. Harrison, 36 Mo. 96; Rowell v. Patterson, 76 Me. 196; Erwin v. Turner, 6 Ark. 14; Morgan v. Hamlet, 113 U. S. 449, 5 Sup. Ct. 583; Van Steenwyck v. Washburn, 59 Wis. 483, 17 N. W. 289. And, where a claim is a proper one to- be presented against- an estate, it must be presented or is forever barred. Carpenter v. Murphey, 57 Wis. 541, 15 N. W. 798; Austin v. Saveland’s Estate, 77 Wis. 108, 45 N. W. 955; Ernst v. Nau, 63 Wis. 134, 23 N. W. 492.

But- it is argued that notice was not duly given as required by sеc; 3840, Stats. 18-98. We have carefully examined the order and notice, and are unable to discover that the statute has not. been complied with. Counsel in his argument insists that the order should contain more than the statute requires. Sec. 3840, Stats. 1898, in effect, provides that the county court, by order, shall fix a time, not less than six months nor more than one year thereafter, within which creditors shall present their claims for examination and allowance, and that the court shall fix by the order a time after presentation of claims for the examination and adjustment of any claims presented, and that notice of the time within which creditors may present their claims, and when the same will be examined and adjusted, shall be given by publication for four1 successive weeks, or in such other manner as the court may direct, the first publication to be within fifteen days of the date of the order; The order made, as appears from the record, fully complies with the provisions of this statute, and it appеars to have been published in the manner prescribed. The order *577was made on tbe 11th day of June, 1901, and provided that the time allowed for creditors to present their claims for examination and allowance is limited from the date thereоf until and including the 6th day of January, 1902, and further ordered that the claims and demands of all persons against deceased be examined and adjusted by the court at the regular term thereof to be held at the office of said county judge in the city of Chiltоn, said county, on the first Tuesday in Januáry, 1902, and that notice be given by publication of the order for four successive weeks, once in each week, in the Chilton Times, a newspaper published in said county, the first publication to be within fifteen days from the dаte of the order. This appears to he a sufficient compliance with the statute. It is further insisted that an estate is not a “person having a claim” within the meaning of sec. 3844, Stats. 1898, requiring “every person having a claim against a deceased рerson” to exhibit the same within the time limited, and hence the claim of Catherine Minaghan’s estate in question was not barred. Catherine Minaghan’s claim against her husband accrued before her death, and at the time the order was made and notiсe given her estate was a creditor, and the statute on the subject (secs. 3840, 3844) obviously refers to all creditors, whether natural or artificial persons. Sec. 3840, Stats. 1898, provides for an order fixing the time “within which creditors shall present their claims,” and sеc. 3844, Stats. 1898, provides that every person having a claim who shall not, after notice giveu, exhibit it within the time limited shall be forever barred. These statutes clearly refer to creditors, and require all creditors of the deceased, exceрt those specifically mentioned in sec. 3860, Stats. 1898, to exhibit their claims for examination and allowance within the time limited by the order of the court or be forever barred. This is the policy and purpose of such statutes. Ernst v. Nau, 63 Wis. 134, 23 N. W. 492; Winter v. Winter, 101 Wis. 494, 77 N. W. 883. We think, therefore, that the estate of Cath*578erine Minagban was a сreditor and person having a claim within the meaning of these statutes. Rains v. Oshkosh, 14 Wis. 403; Segnitz v. Garden City B. & T. Co. 107 Wis. 171, 83 N. W. 327; 2 Rapalje & L. Law Dict. 945; Billings v. State, 107 Ind. 54, 6 N. E. 914, 7 N. E. 763; Winter v. Winter, supra; Ernst v. Nau, supra; 2 Woerner, Adm’n (2d ed.) § 402.

The filing of the claim of John J. Minaghan by his guardian against the estate of John Minaghan, deceased, cannot inure ‍​​​​‌‌​​​‌​‌‌​‌‌​​‌​​​​​‌​‌‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌​‌‍to the benefit of the respondent here. It was a different cause of action and prosecuted in a different right. McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489. We know of no rule of law that will permit the respondent to avail herself of the proceedings there to support her claim here. We have examined the authorities cited by cоunsel on this point, and fail to discover that they support his contention. In McXenney v. Minahcuiv, supra, the infant sued through his guardian to recover for his own benefit, and in the instant case the respondent sues to recover for the benefit of Catherine Minaghan’s estate. The fact that eventually the infant who is heir of Catherine Minaghan, deceased, may profit by the recovery here cannot change the situation. The question discussed by respondent’s counsel to the effect that statutes of limitation will not run against the wife in an action against the husband need not be further treated, because, independent of the fact that the present action is not between husband and wife, we have shown that the defense of coverture does not apply at аll under this “nonclaim” or special statute, where there is no specific exemption in the statute itself. Winter v. Winter, 101 Wis. 494, 77 N. W. 883; 2 Woerner, Adm’n (2d ed.) § 402. It is further claimed that there was fraud on the part of the representatives of the defendant estate, from the consеquences of which this court should grant relief. It appears from the record that the court below refused to find that any fraud had been committed. There is nothing *579in the record which, would entitle the respondent to relief on the grounds of fraud.

Counsel for respondent has shown great labor and research in the examination and presentation of authorities, and we bave examined with care his very lengthy brief, but cannot bring ourselves to the conclusion that the judgment of the court below is right. We ‍​​​​‌‌​​​‌​‌‌​‌‌​​‌​​​​​‌​‌‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌​‌‍hаve not deemed it necessary to treat all the points made by counsel in his brief, but may say in passing that all questions discussed have received careful consideration. We think the claim presented was barred, and that the judgment below must be reversed.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded with instructions to affirm the judgment of the county court.