145 P. 1063 | Or. | 1915
delivered the opinion of the court.
“If, when the cause of action shall accure against any person who shall be out of the state or concealed therein, such action may be commenced within the terms herein respectively limited, after the return of such person into the state, or the time of his concealment; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limited for the commencement of such action.”
Section 18, L. O. L., provides as follows:
“If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his personal representatives after the expiration of the time, and within one year from his death. 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 survives, an action may be commenced against Ms personal representatives after the expiration of that time, and within one year after the issuing*493 of letters testamentary or of administration; but no suit or action for collection of any claim against the estate of a decedent may be maintained, when no letters testamentary or of administration shall have been issued before the expiration of six years after the death of the decedent, unless begun before the expiration of six months after the taking effect of this act.”
It is plain that if Webster had not died and had never returned to the State of Oregon the statute of limitations would not yet have run against the notes in question; but, his death having been admitted, and it having been shown that it occurred on October 7, 1904, the situation is controlled by the last clause of Section 18, L. O. L., saying:
“But no suit or action for collection of any claim against the estate of a decedent may be maintained, when no letters testamentary or of administration shall have been issued before the expiration of six years after the death of the decedent, unless begun before the expiration of six months after the taking effect of this act.”
That excerpt was engrafted upon Section 18 as an amendment by the legislative assembly in 1907. More than six years having elapsed between the death of the decedent on October 7, 1904, and April 23, 1912, when the letters of administration were issued, the debts to Luse and Blood were barred under the conditions- of Section 18 just quoted. It is stated in emphatic terms in Section 1241, L. O. L., that:
“No claim shall be allowed by the executor or administrator or the County Court which is barred by the statute of limitations.”
As a matter of law, this disposes of the the Luse and Blood claims adversely to them.
“There are no particular pleadings or forms thereof in the County Court, when exercising the jurisdiction of probate matters * * other than as provided in this title. The mode of proceeding is in the nature of that in a suit in equity as distinguished from an action at law. The proceedings are in writing, and are had upon the application of a party or the order of the court. The court exercises its powers by means of— (1) A citation to the party; (2) an affidavit or the verified petition or statement a party; (3) the subpoena to a witness; (4) orders and decrees; (5) an execution or warrant to enforce them. ’ ’
The statute thus makes the proceedings- in the County Court sitting in probate substantially a suit in equity, and while, as a court of chancery, it is not strictly bound by the statute of limitations, except, on the question here involved, as stated in Section 1241, L. O. L., still it proceeds in- analogy to the same, and will withhold its aid to enforce a stale claim.
“While the statute of limitations is not a defense in equity, still the claimant must have exercised reasonable diligence in asserting his claim after ascertaining the fraud complained of, or after learning of facts which would put a person of ordinary intelligence on inquiry. ’ ’
Other authorities in this state are Sedlak v. Sedlak, 14 Or. 540 (13 Pac. 452) and Raymond v. Flavel, 27 Or. 219 (40 Pac. 158). Similar doctrine is enunciated in Graham v. Brock, 212 Ill. 579 (72 N. E. 825, 103 Am. St. Rep. 248); Goodrum v. Mitchell, 236 Ill. 183 (86 N. E. 217); Cohen v. Tuff (Del.), 86 Atl. 833; Matthews v. Peterson, 150 N. C. 132 (63 S. E. 722).
The decrees complained of were jnst and equitable, and are therefore affirmed. Affirmed.