The district court of Hennepin county quashed a writ of certiorari granted by it to review an order of the probate court of said county denying relator’s petition to extend the time to present a claim against an estate, then in course of administration in that court. The relator appeals.
The order of the probate court does not indicate the ground upon which the petition was denied. However, in the return to the writ of certiorari the probate judge stated that he considered the petition sufficient to warrant the relief asked, but deemed the court without power to act, because more than 18 months had expired since the order was made for creditors to present claims. Without stopping to consider or decide whether this recital by the judge in his return to the writ presents an error which a reviewing court may lay hold of when the record otherwise shows no ground for reversal, we come directly to the questions argued by counsel in this court, viz.:
(1) May the presentation of a claim against an estate to the administrator thereof be held a compliance with section 7320, G., S. 1913 ?
(2) If not, has the probate court the power to extend the time for-receiving a claim after the expiration of more than 18 months from the time the order to present claims was made and published?
The record discloses that the administrator herein was appointed February 7, 1917, and on the same day the court made and filed the order for creditors to present claims, which order was duly published. The petition states that on March 19, 1917, relator verified an itemized claim against the estate and handed the same to the administrator, believing that by so doing she had complied with the law, and relying also upon the assurance of the administrator that nothing more need be done by her with reference to presenting the same to the court. She made no other attempt to present her claim to the court until this petition was filed on December 23, 1919.
Under the common law practice, and also under statutory regulations in some states, the presentation of claims against the estates of deceased persons is to the executor or. administrator, and he passes on the validity thereof. Not so under our code.
The provisions pertinent to the questions here presented are found
Relator insists that section 7333 confers power to extend the time to present claims even after the expiration of the 18 month period therein mentioned. The section now reads: “For cause shown, and upon notice to the executor or administrator, the court, in its discretion, may receive, hear and allow a claim when presented before the final settlement of the administrator’s or executor’s account, and within one year and six months after the time when notice of the order was given.” The application of the last clause stands out clearer in the language of the statute in force before the Revised Laws of 1905 took effect. Chapter 83, p. 84, Laws 1899, amended section 103 of the probate code (chapters 46, 94, Laws 1889). That section contained provisions now found
“No claim or demand shall be received after the expiration of the time so limited, unless for good cause shown. The court may in its discretion receive, hear and allow such claim upon notice to the executor or administrator, but no claim shall be received or allowed unless presented within one year and- six months from the time when notice of the order is given, as provided in the next section, and before final settlement,” etc. The “next section” referred to concerns the publication of the order.
Mere change in phraseology and rearrangement of the law in the revision of 1905 was not intended to work a change in the meaning thereof, unless such a purpose is discemable from the conflict in the language between the provisions in the Revised Laws and the prior statutes. The latter may always be resorted to as an aid to the correct interpretation of the revision. Our conclusion is that the law, while it invests probate courts with wide discretion to accept belated claims up to the expiration of one year and six months after the order for creditors to present claims has been made and published (State v. Probate Court of Polk County, 79 Minn. 257, 82 N. W. 580), withholds the power to receive such claims if presented after the expiration of said period. In Gilman v. Maxwell, 79 Minn. 377, 82 N. W. 669, this court designated the nonelaim statute of our probate code as mandatory. See also the- view taken of this provision by both the majority and minority opinions in Schurmeier v. Connecticut Mut. Life Ins. Co. 171 Fed. 1, 99 C. C. A. 107, particularly in the forceful dissenting opinion of Judge Sánbom. When the nonclaim statute has run as against claims of decedents the estate passes free from such claims to the heirs or- legatees.
In Pulliam v. Pulliam (C. C.) 10 Fed. 53, the distinction between the ordinary statutes of limitation and the nonclaim statutes relating to claims against decedents is clearly set out. It is there said that an administrator may waive the former, but not the latter, which are rules of property as well as statutes of limitation. This decision is approvingly referred to in Security Trust Co. v. Black River Nat. Bank, 187
But appellant suggests that the administrator was guilty of constructive fraud by receiving her claim and assuring her that she had done all that was needful to assert her rights when she handed it to him. Baart v. Martin, 99 Minn. 197, 108 N. W. 945, 116 Am. St. 394, is cited to the proposition that a statutory bar does not save even a decree to one who has obtained it by fraud. Overlooking the meagre allegations of facts tending to show constructive fraud in the petition and the absence therein of any excuse for the delay, we do not think the case at bar can be made to parallel the case cited. The administrator has no authority to represent the heirs or creditors in the administration of an estate, except insofar as he is required to conserve the estate for all interested therein. He is not personally affected by the adjudication upon claims. Nor has he any power to waive the nonclaim statute (section 7323), which provides that: “All claims against the estate of a decedent, arising upon contract, whether due, not due, or contingent, must be presented to the court for allowance, within the time fixed by the order, or be forever barred.” In Nagle v. Ball, 71 Miss. 330, 13 South. 929, it is held: “The administrator cannot waive the absolute bar created by the statute for the protection of estates of decedents. He cannot abrogate a positive rule of law, requiring probate of claims within the prescribed period, by conduct of his own, however misleading or designing.” In Gilman v. Maxwell, supra, this court said: “It is not within the power of the administrator of an estate to waive compliance with the statute, and the authorities cited by appellant are not in point, because of this mandatory statute.” See also Roberts v. Flatt, 142 Ill. 485, 32 N. E. 484; Miner v. Aylesworth (C. C.) 18 Fed. 199; 18 Cyc. p. 500. If the statute cannot be waived, the means employed in the attempt are of no consequence. The persons interested in relator’s claim are those entitled to participate in the estate after certain preferred claims are paid. It is not pretended that any of these interested persons practiced either actual or constructive fraud upon
We conclude that the probate court was without power to receive the claim, and that it was barred at the time relator presented her petition. The order is affirmed.