Estate of Steuer

[585]

NOURSE, J.

Katinka Steuer died in this state on October 6, 1921-, intestate and leaving as her heirs at law four sisters and one brother. One of the sisters, Minnie Larsen, was duly appointed administratrix of the estate, which was of the value of about $3,500. During the course of administration, Christian Larsen, the husband of this administratrix, presented to her his verified claim against the estate, reading as follows: “For board, room and care furnished to Katinka Steuer from November 27, 1920, to November 27, 1923, total thirty-six months at $70 per month—$2520.” This claim was in due time approved by the administratrix and allowed by the probate judge. The administratrix then presented her final account, from which it appeared that, after the payment of this claim and the expenses of administration, nothing was left in the estate to be distributed to the heirs. These heirs, other than Minnie Larsen, the administratrix, protested against the allowance of the Larsen claim upon the grounds that a large portion of it was barred by the statute of limitations. These objections were overruled and the account was settled and the decree in accordance therewith was entered. From this decree the heirs of the decedent, other than the administratrix, have appealed.

The sole ground urged on the appeal is that all that portion of the claim which did not cover services rendered within the two-year period was barred by the provisions of section 339 of the Code of Civil Procedure. In this connection attention is directed to section 1499 of the same code, which provides that no claim must be allowed by the executor or administrator or by a judge of the court which is barred by the statute of limitations. These express inhibitions in the statute are conceded by the respondent and the only argument which she makes in support of the decree is that the claim does not appear on its face to be barred and that no evidence was offered to show that the claim was not based upon some instrument in writing sufficient to take it out of the bar of section 339. To the latter point the appellants correctly answer that if the claim were based upon any such instrument it was incumbent upon the claimant, under section 1497 of the Code of Civil Procedure, to attach a copy of the instrument to the

[586]