Nally v. McDonald

Sharpstein, J. This is an appeal from a judgment, and the questions presented by the record relate to the order sustaining the defendant’s demurrer to the plaintiffs’ complaint.

One of the grounds of demurrer is that the right of action is barred by section 337 C. C. P.

The allegations on which this is based are that defendant’s testate made a promissory note which had not been paid in full at the date of her death; and that a claim for the balance was duly presented to, and allowed by, her executor within four years after said note fell due; but was not presented to the judge of the Superior Court for allowance within that period; and that he rejected it. The claim was presented to and allowed by the executor within the time prescribed by section 1493 C. C. P.; and the code provides that after a claim has been allowed by an executor or administrator, it must be presented to the judge of the Superior Court for his approval. But it does not prescribe the time within which it must be presented to such judge. It, however, does provide that “ if the claim be presented to the executor or administrator before the expiration of the time limited for the presentation of claims, the same is presented in time, though acted upon by the executor or administrator, and by the judge, after the expiration of such time.” (Id. § 1496.) The provision of the code relied on to sustain the alleged bar of the statute of limitations reads as follows : “ Ho claim must be allowed by the executor or administrator, or by a judge of the Superior Court, which is barred by the statute of limitations.” (Id. § 1499.) And the respondent contends that this claim, when presented to the judge, was barred, because the note on which it was founded fell due more' than four years before it was presented to the judge, notwithstanding its presentation to and allowance by the executor within four years after it became due.

To sustain that contention it must be assumed that the running of the statute was not interrupted by the presentation of the claim to the executor, and his allowance of .it, within four years after a right of action accrued on it. The holder of the claim could not have maintained an action on it until after it had been presented to the executor. (Id. § 1500.) And as the executor allowed it within ten days after its presentation to him, [532]no action could be maintained on it until ten days after its presentation to the judge, unless he rejected it within that period. So that the action on the claim was stayed by statutory prohibition from the date of its presentation to the executor to that of its rejection by the judge, and the intervening time “ is not part of the time limited for the commencement of the action.” (Id. § 356.)