Van Duyn v. Van Duyn , 129 Wash. 428 ( 1924 )

Parker, J.

The plaintiffs, Van Duyn and wife, seek recovery of a claimed balance due them for their care and support of two children of their deceased son, Charles A. Van Duyn, for a period of several years next preceding his death. The action is upon a claim in that behalf presented to and rejected by Nela Smith Van Duyn, the widow of the deceased and administra-trix of his estate; the children being his children by a former wife. A trial upon the merits in the superior court for Spokane county, sitting without a jury, resulted in findings and judgment awarding to the plaintiffs recovery for their care and support of the children at the rate of $25 per month, less certain payments made thereon by the deceased during his lifetime. From this disposition of the case in the superior court, the defendant has appealed to this court.

It is contended in behalf of appellant that the evidence does not support any recovery, in that it fails to show any contract between respondents and their deceased son for compensating them for their care and support of the children. The evidence, we think, leaves little room for contending that the children were not in fact in the care of respondents at their home, being supported by them, continuously during the whole of the period in question. The evidence, we think, also makes it certain that the deceased had an understanding with respondents that he would compensate them for the care and support of the children, and also that he actually did make payments to them from time to time toward such support. On the question of the amount the deceased promised to pay for such support of the children, the evidence may not be quite so conclusive, but we have the testimony of one witness to the fact that deceased admitted to him that he had agreed to pay respondents for the care and support of the children at the rate of $25 per month, and that the children were so left in the care of respondents by him because he conceived it to be more conducive to their welfare than to have them in the home of himself and appellant, their stepmother. Upon the whole record, we are quite convinced that the trial court was fully warranted in concluding that there was a contract between respondents and their deceased son for the cape and support of his children, and that he had agreed to pay them for such care and support at the rate of $25 per month. We conclude that we should not disturb the judgment upon the merits.

It is further contended in behalf of appellant that the action is barred because not commenced within thirty days following the notification of the rejection of respondents’ claim by appellant as administratrix. Onr probate code, prescribing the time within which an action upon such a claim must be commenced after rejection, being § 1482, Rem. Comp. Stat. [P. C. § 9833], reads as follows:

“When a claim is rejected by either the executor, administrator, or the court, the holder must bring suit in the proper court against the executor or administrator within thirty days after notification of the rejection, otherwise the claim shall be forever barred.”

On July 20, 1922, appellant sent by registered mail to respondents a notice of her rejection of their claim; the same having been presented to her a short time prior thereto. They received this notice on the following day, July 21st. On Monday, August 21, 1922, the summons and complaint in this action were filed in the superior court for Spokane county; they having been served upon appellant on the Saturday preceding.

When in law were respondents notified of the rejection of their claim? Section 1479, Rem. Comp. Stat. [P. C. § 9830], reads in part as follows:

“If the executor or administrator reject the claim in whole or in part, he shall notify the claimant forthwith of said rejection and file in the office of the clerk an affidavit showing such notification and the date thereof. Such notification shall be by personal service or registered mail.”

Our decision in State ex rel. Palmer Mountain Tunnel & Power Co. v. Superior Court, 63 Wash. 442, 115 Pac. 845, construing §§ 246, 247, Rem. Comp. Stat, [P. C. §§ 8455, 8456], relating to the serving of notices upon parties during the progress of civil actions, after the court has acquired jurisdiction over such parties in such actions, may seem to support the view that respondents had “notification of the rejection” of their claim when appellant deposited the notice by registered mail in the post office; bnt those sections relate only the manner of service of notices, as we have already observed, upon parties in civil actions during the course of the procedure therein after the court has acquired jurisdiction over such parties; and besides, § 247, relating to service of such notices in civil actions during their pendency, provides that “in such case [service by mail] the time of service shall be double that required in case of personal service.” So if these sections are of controlling force in our present inquiry, it would seem that the time for respondents commencing their action would be twice thirty days following their notification by registered mail of the rejection of their claim. But we think those sections do not apply. This notice of rejection is not one given in the course of the proceedings of a civil action. It seems to us that, when the notice of rejection is given to the claimant by registered mail or delivered to him by someone in person, the notification is not complete until actually received by the claimant, since the probate statute is wholly silent upon the question of when the notification is complete. We therefore conclude that July 21st, being the day on which the notice was actually received by respondents, was the day of their notification of the • rejection of their claim within the meaning of the statute.

We next inquire, is July 21st, the day the notification was received by respondents, to be excluded in our computation of the prescribed thirty-day period? We ignore, for present purposes, the statutory rule that the first day shall be excluded, as provided by §§ 150, 252, Rem. Comp. Stat. [P. C. §§ 7435, 8461], since it might be argued that those sections refer only to acts to be done in the course of the proceedings in a civil action. Those sections, however, adopt what we think is the general rule in the absence of statute. 17 R. C. L. 754; 26 R. C. L. 741; 25 Cyc. 1290. In this connection it is to be noted that the action is to be commenced within thirty days “after notification of the rejection.” We italicize the words to be particularly noticed. This expression, by the overwhelming weight of authority, excludes the day of the notification. Therefore, we conclude that the first day to be counted in our computation of the thirty-day period is July 22, 1922, the day following the receiving of the notification by respondents.

Now the thirtieth day from and including July 22d would be August 20th, which was Sunday, and this brings us to the question as to whether or not that day shall be excluded from our computation because of it being Sunday. The authorities are not wholly harmonious in shedding light upon this question. The general rule is stated in 38 Cyc. 331, as follows:

“Both at common law and by statute, when the last day of a period in which an act is to be done falls on a legal holiday, that day is excluded and the act may be done on the next succeeding day, and where the next day is a Sunday, performance may be had on the next secular day.”

There are some authorities, however, holding that this rule does not apply to general statutes of limitation. This, however, is not a general statute of limitation prescribing the period within which the action may be commenced after its accrual, but is a special and very short statute of limitation, and manifestly one under which the court should not contract the prescribed period except as the statute clearly and unmistakably compels. As is very pertinently observed in the text of 17 R. C. L. 754, with inference to the rule excluding the first day:

“Another conservative principle which should affect the determination of the question is that the computation of time should be so made as to protect a right and prevent a forfeiture, if this can be done without violating a clear intention or a positive provision.”

We conclude that Sunday, August 20th, the thirtieth day from and including July 22d, should be excluded from our computation of the thirty-day period. This plainly results in the action having been timely commenced when the complaint was filed on August 21st, the last day of the thirty-day period so computed. We have assumed, for argument’s sake, that the filing of the summons and complaint in the superior court, and not their service on the Saturday preceding, constituted the commencement of ' the action. This would no doubt be a correct assumption were we considering § 167, Rem. Comp. Stat. [P. C. § 8174], of our general statutes of limitation, and our interpretation thereof in McDonald v. Prosser Falls L. & P. Co., 110 Wash. 175, 188 Pac. 462, and prior decisions therein cited. Whether or not such assumption is correct under this special statute of limitation, it being silent as to what constitutes the commencement of the action, we need not now decide.

The judgment of the trial court is affirmed.

Main, C. J., Holcomb, Tolman, and Mackintosh, JJ., concur.