205 P. 1002 | Or. | 1922
Section 38, Or. L. (Olson’s Comp.), is as follows:
“No action shall abate by the death, marriage, or other disability of-a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of' a party, the court may, at any time within one year thereafter, on motion, allow the action to be continued by or against his personal representatives or successors in interest.”
Standing alone, this section would seem to authorize a revival and continuance of a case the progress of which had been suspended by death, irrespective of any other circumstance, but it is only fair to consider it in connection with other statutes passed to secure orderly procedure in the administration of the estates of decedents.
Section 1238 of the Code provides in substance that the executor shall give notice of his appointment and “shall require all persons having claims against the estate to present them with proper vouchers within
“A claim not presented within six months after the first publication of the notice is not barred, but it cannot be paid until the claims presented within that period have been satisfied; and if the claim be not then due, or if it be contingent, it shall nevertheless be presented as any other claim. Until the administration has been completed, a - claim against the estate not barred by the statute of limitations may be presented, allowed, and paid out of any assets then in the hands of the executor or administrator not otherwise appropriated or liable.”
Construing these statutes together, we are of the opinion that before plaintiff could have substitution in this action, it was his duty to show that his claim had been presented to the executrix within the time prescribed by statute and before the final settlement of the estate. After such final settlement a claim not presented is barred.
The authorities seem to hold, however, that if the motion to continue is made within the time allowed by statute and before final settlement, the application to continue or revive the case is in itself a sufficient presentation to comply with the statute: 18 Cyc. 453, and cases there cited. The view that a revivor against the executor is a sufficient presentation was taken in this state in the case of The Home v. Selling, 91 Or. 428 (179 Pac. 261). In that instance May and his guardian were sued and pending the litigation May died, whereupon and within the six months allowed for the presentation of claims, application was made to substitute his executors as defendants, which was allowed. This court held that under such conditions no presentation of the claim was necessary. .
In our judgment, the plaintiff had one of two courses open to him. He could before final settlement have presented his claim to the executrix, and, if allowed, could have had the property of the estate
The case before us is baldly this: Plaintiff had a purely legal claim against the estate. He did not present it to the executrix for allowance and did not ask to have his action revived (which would have been equivalent to an allowance) while the estate was being probated, and so far as any action at law in his original case is concerned, he is barred. Section 38 of the Code, permitting a revivor of actions, is only part of a comprehensive scheme of procedure, and before a litigant can invoke its aid he must bring himself within the other requirements of the statute.
The order of the Circuit Court is affirmed.
Aeeirmed.