Barnard v. Bank of Willows

LANDIS, J.,

pro

tem.

The appeal is by the executrix of the above-entitled estate from that part of an order of the said superior court made in connection with the settlement of the first account of the executrix ordering that a certain claim of the Bank of Willows, a corporation, allowed, approved and filed in said court for the sum of $4,843.77 constitutes a valid and subsisting claim against said estate.

On February 16, 1923, the said deceased made, executed and delivered to said Bank of Willows, a corporation, two promissory notes, each of said notes made payable six months after date, one note in the principal sum of $3,140 and one in the sum of $2,419, secured by mortgage. On January 19, 1927, the deceased died. On February 17, 1927, Minnie F. Garnett, now Minnie F. Barnard, was duly appointed executrix of the estate of her said deceased husband. On May 6, 1927, said Bank of Willows presented its claim upon said two promissory notes to said executrix, and no further step was taken by said bank. The claim was allowed by the executrix November 3, 1927, and approved by the court and filed December 2, 1927. The notes would normally outlaw August 16, 1927.

Appellant contends that this case involves the following two legal questions, to wit: (1) Did or did not the filing of the alleged claims of the Bank of Willows, with said executrix, on the sixth day of May, 1927, stop the tolling of the statute of limitations (sec. 337, Code Civ. Proc. of the state of California) f (2) Did the executrix of the said estate of James R. Garnett, deceased, and/or the said court, have sufficient and/or any legal right or authority to so or at all allow and/or approve the said alleged claim of the Bank of Willows, on the third day of November, 1927, and the second day of December, 1927, respectively ?

Appellant urges and takes the position that normally and under the general statute of limitations the notes would have outlawed August 16, 1927, and contends that the claim having been filed May 6, 1927, not allowed by the executrix until November 3, 1927, and not approved by the court until December 2, 1927, therefore, since the mere filing of the

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claim with the executrix did not toll the statute of limitations, the claim was barred by the statute of limitations when allowed by the executrix and approved by the court, and could not have' been legally allowed by the executrix or approved by the court because of the provision of section 1499 of the Code of Civil Procedure (now section 708, Probate Code), which in part reads as follows: “No claim which is barred by the statute of limitations shall be allowed or approved by the executor or administrator, or by the Judge.”