Cullerton v. Mead

Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring. The complaint in this case avers that on the twenty-ninth day of September, 1856, the plaintiff recovered a judgment against Phillips, since deceased, which is still unsatisfied; that after the death of Phillips the defendant was appointed administrator of his estate; that on the twelfth day of January, 1860, the administrator caused a notice to be published requiring creditors or persons having claims against the estate to present them to him within ten months from the date of the notice; that the order for publication required it to be made once a week for five weeks; that on the thirteenth day of November, 1860, the plaintiff, by his agent, presented the claim, in the form of a certified transcript of the judgment, to the administrator for allowance and approval; that the claim was disallowed; that on the twenty-second day of November, the transcript was again presented, with an affidavit of the plaintiff, setting forth that on the sixth day of June, 1858, he departed from this State, and did not return until the-day of August, 1860 ; that some time in August he first learned of the death of Phillips, but was ignorant of the appointment of an administrator of his estate, and of the publication of the notice to creditors; that he had never seen any notice or publication thereof, and was not informed of it until the fifteenth of November, 1860. The complaint further states, that on the nineteenth day of Decern[98]her, 1860, the same transcript and affidavit were presented to the County Judge for his approval, and that each presentation of the claim was made before any decree of distribution was entered.* By the indorsements on the papers presented, it appears that the claim was rejected “ on account of the limitation of time of presenta- - tion.” The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and that it was ambiguous and uncertain. The demurrer was sustained, and final judgment rendered in favor of the defendant, from which the plaintiff appeals to this Court.

By the amendatory Act of February 7th, 1860, Sec. 130, of the act regulating the settlement of the estates of deceased persons, is amended so as to read as follows : “ Sec. 130. If a claim be not presented withm ten months after the first publication of the notice, it shall be barred forever; provided, if it be not then due, or if it be contingent, it may be presented within ten months after it shall become due or absolute; and provided, further, that when it shall be made to appear, by the affidavit of the claimant, to the satisfaction of the executor or administrator and' the Probate Judge, that the claimant had no notice as provided in this act, by reason of being out of the State, it may be presented any time before a decree of distribution is entered.” The last proviso is added to the section by the Act of 1860.