Cramer v. Bedell ( 1887 )

Haight, J.

This action was brought to recover a claim against the estate of a deceased person.

The referee has found as facts that after the commencement and before the completion of the publication of the notice to creditors to present their claims, and on or about the 28th day of February, 1882, the plaintiff presented to the defendant, as administrator, etc., a claim or account against John W. Burns, deceased, the whole of which was claimed to be due at that time, containing the same items, appearing in the bill of particulars in this action and upon which this action was brought; that such account or claim was disputed or rejected by the defendant in the month of May, 1882, and that this action was commenced on the 2d day of February, 1884, and as a conclusion of law that the plaintiff is barred by reason of the statute, etc.

Section 1822 of the Code provides: “Where an executor or administrator disputes or rejects a claim against the estate of the decedent exhibited to him either before or after the commencement of the publication of the notice requiring the presentation of claims as prescribed by law, unless the claim is referred as prescribed by law, the claimant must commence an action for the thereof against the executor or administrator within six months after the dispute or rejection, or if no part of the debt is then due, within six months after a part thereof becomes due. In default whereof he and all persons claiming under him are forever barred from maintaining such an action thereupon, and from every other remedy to enforce the payment thereof out of the decedent’s property.”

It will thus appear that the conclusion of the refereé is in accordance with this provision of the Code if his findings of fact are sustained by the evidence.

Upon that branch the defendant testified that he retained Mr. Robbins as attorney and gave him all the authority that was necessary to enable him to defend, and that he gave Robbins the account soon after the plaintiff gave it to him.

Mr. Robbins testified that he was employed by the defendant soon after he was appointed administrator; that the account was given to him, and that shortly after the 1st of May, 1882, he told the plaintiff that he had consulted with Mr. Bedell, the defendant, and that they disputed and rejected the account, and that he must bring a suit on it so as to determine it, because the defendant was anxious to settle the estate. There is a conflict in the evidence as to whether or not the claim was rejected at this time, but the evidence to which we have referred sustains the finding of the referee in this regard. The claim of the plaintiff that-he had subsequent interviews with the defendant is disputed by the administrator. The referee also found that the plaintiff’s claim had been paid, but under the view which we have taken of the case it becomes unnecessary to consider that question.

The judgment should be affirmed, with costs.

Smith, P. J., Barker and Bradley, JJ. concur.