313 S.W.2d 141 | Tex. App. | 1958
Lois D. STAMPS, Appellant,
v.
Nick VARELAS, Administrator of the Estate of E. L. Gibson, Deceased, Appellee.
Court of Civil Appeals of Texas, San Antonio.
Joe Burkett, San Antonio, for appellant.
Pepos S. Dounson, San Antonio, for appellee.
POPE, Justice.
Appellant, Lois D. Stamps, sued Nick Varelas as Administrator of the Estate of E. L. Gibson, Deceased. The trial court instructed a verdict upon defendant's contention that the claim of $448 was barred by limitations. Appellant presented her claim on February 21, 1957. The administrator did nothing, and appellant contacted the administrator the next time on May 15, 1957. Section 310, Probate Code, V.A.T.S., provides that a failure of the representative of an estate to endorse on a claim, either his allowance or rejection, within thirty days after the claim is presented, shall constitute a rejection. Hence, the claim was rejected by operation of law on or about March 24. Appellant had ninety days after the rejection of her claim in which to file suit. Sec. 313, Probate Code. She did not file suit until the one hundred first day after rejection, and, upon the administrator's plea, it was then barred by limitations. Butler v. Fechner, Tex.Civ. App., 200 S.W. 1126. Appellant did not plead nor prove fraud, estoppel or waiver, which would avoid the limitations.
The judgment is affirmed.
