47 Minn. 382 | Minn. | 1891
By the complaint these facts are disclosed: In 1858 one Potter, in consideration of money loaned, executed to the plaintiff, who then was and ever since has been a resident of this state, his promissory note, payable six months thereafter. Before the maturity of the note Potter left the state of Minnesota, and never afterwards resided therein. In 1867 he died intestate in the state of Texas. At the time of his death he owned certain land, which is within the present limits of Ramsey county, in this state. The defendant was a daughter of Potter, and his sole heir-at-law. She is a resident of the state of Texas, and has never resided in this. state. In June, 1889, upon petition of the defendant, probate-proceedings were instituted in the probate court of Ramsey county. An administrator was appointed, and in June a period of six months was fixed within which claims against the estate should be filed. No claims were presented, and in January, 1890, the administrator rendered his final account, and was discharged, and administration upon the estate was closed. By decree of the probate court the land referred to was assigned to the defendant as the heir-at-law of Potter. There was no other property belonging to the estate. In this
As the statute stood prior to October, 1889, when the Probate Code enacted in that year (chapter 46) went into effect, the fact that the plaintiff did not present his claim against the estate for allowance in the probate court would preclude a recovery against the heir. Bryant v. Livermore, 20 Minn. 271, (313;) Fern v. Leuthold, 39 Minn. 212, (39 N. W. Rep. 399;) Hill v. Townley, 45 Minn. 167, 168, (47 N. W. Rep. 653.) Moreover, by the neglect of the plaintiff for such a period of time — more than 20 years after the death of his debtor— to take any proceedings to secure an allowance of and to enforce his claim against the estate, he lost the right to have it allowed and enforced. He became barred by his own laches. O’Mulcahey v. Gragg, 45 Minn. 112, (47 N. W. Rep. 543.) The right to establish and enforce the debt against the estate having been thus extinguished, it would follow as a consequence that he could not enforce payment of it out of the property which had belonged to the estate or recover from the heir. It would be strange if the liability of the heir, of a secondary nature, should survive after what may be termed the primary liability of the estate had been barred by the neglect of the creditor himself.
If it were conceded that the provisions of the Probate Code of 1889 are applicable to this case, still section 107 cannot be construed so as to sustain this action. The plaintiff relies upon the proviso following the provision that “no claim against a decedent shall be a charge against or lien upon his estate unless presented to the probate court, as herein provided, within five years after the death of such decedent.” The proviso is that “said provision shall not be construed as affecting the right of a creditor to recover from the next of kin, legatee, or devisee to the extent of assets received.” We are satisfied that it was not intended by these negative terms, declaring the five-years limitation therein specified to be inapplicable to affect the rights of creditors to recover from the next of kin, legatee, or dev-
Order affirmed.