Simon v. Pine Bluff Trust Co.

Kirby, J.,

(after stating the facts.) It is claimed by appellee that the note does not constitute such a demand against the estate of Wiley Jones as the statute requires to be authenticated and exhibited to the administrator within two years after fhe grant of letters, and that it was such a contingent claim as the probate court had no right or authority to allow against said estate.

The statute divides all demands against the estates of deceased persons into five classes, putting in the fourth “all demands without regard to quality which shall be exhibited, properly authenticated, within one year after the first granting of letters on the estate,” and provides: “Fifth, All such demands as may be exhibited as aforesaid after the end of one and within two years after the first letters granted on the estate; and all demands not exhibited to the executor or administrator as required by this act before the end of two years from the granting of letters shall be forever barred.” Section no, Kirby’s Digest.

This court in Stewart v. Thomasson, 94 Ark. 63, in deciding as to what kind of claims this statute was applicable, after referring to the case of Walker v. Byers, 14 Ark. 246, said, “The following general rule which has ever since been steadily adhered to by this court was there laid down: ‘The claims and demands which the statute contemplates shall be exhibited to the executor or administrator in -the manner provided by the statute before the end of two years from the granting of letters, on pain of being forever barred, are all claims capable of being asserted in a court of justice, either law or equity, existing either at the time of the death of the deceased or coming into existence at any time after the death, and before the expiration of the two years, including; of course, all claims or demands running to certain maturity, although not yet payable, to be adjusted presently on equitable principles of discount according to the rate of interest when matured, or to be provided for at the date of maturity without discount, and excluding such claims only as might be inchoate and contingent like that, in the case of Burton v. Lockert, 90 Ark. 412; and like dormant warranties, broken by eviction after the expiration of the two years,’ ” See also Bennett v. Dawson, 18 Ark. 334; Hill v. State, 23 Ark. 604; Patterson v. McCann, 39 Ark. 577; Purcelly v. Carter, 45 Ark. 299; Morgan v. Hamlet, 113 U. S. 449; Connelly v. Weatherly, 33 Ark. 658; Padgett v. State, 45 Ark. 495.

Was this note or instrument a contingent demand, within the meaning of our decisions, or such a one as was required to' be presented to the probate court for allowance under said section no of Kinby’s Digest? The instrument sued upon is a written promise to pay a certain sum of money to a named payee after the death of the maker, and it has the four characteristics required by law of a promissory note, being certain as to the maker, certain as to the payee, certain as to the amount to be paid, and certain as to the time of payment. The fact that it is payable after death, an event which was certain to occur, did not render it uncertain in that regard, and we hold it is a promissory note, becoming due upon the death of the maker. See Shaw v. Camp, 160 Ill. 425, 43 N. E. 608; Maze v. Baird, 89 Mo. App. 348; Martin v. Stone, 67 N. H. 367, 29 Atl. 845; Beatty v. Western College, 177 Ill. 280, 42 L. R. A. 797, 52 N. E. 432; Bristol v. Warner, 19 Conn. 7; Hatchaway v. Roll, 81 Ind. 567; Randall v. Grant, 69 N. Y. S. 221, 59 App. Div. 485; Root v. Strang, 77 Hun 14, 28 N. Y. S. 273, 59 N. Y. S. 258; Crider v. Shelby, 95 Fed. 212; Conn v. Thornton, 46 Ala. 587; Hatch v. Gillette, 40 N. Y. S. 1016, 8 App. Div. 607.

Does the direction “and hereby bind my executor to pay the above sum at once after my funeral expenses and -debts if any, are paid, and under no circumstances cause any delay or trouble to her” render the time of payment uncertain, or the claim contingent? We do not think so.

His estate was the only means out of which any of his debts could be paid, and such direction to his executor that it should be paid after his funeral expenses and all other debts were discharged did not have the effect to lessen the obligation of the note nor render uncertain -the time of its payment, and at most only showed the intention of the maker to postpone the payment of a binding obligation until other debts were paid.

It is urged, however, that since this direction was to pay after all other debts were discharged it conflicts with the statute which requires all demands against estates to be divided into classes and paid in the order in which they are classed, and when there is not enough money to pay all of the claims of any particular class, that all within that class shall be paid pro rata, and renders the note void. We do not agree with this contention.

When claims are duly exhibited against an estate, and the administrator is satisfied they are just, it becomes his duty to allow and classify them as presented, assigning them to the class designated by law; but he is not authorized to give one claim priority over another in its class in violation of the statute, nor one class priority over another, nor does the probate court have such power. If a claim of any prior class, first, second, third, or fourth, be not exhibited until after the end of the first year,it thereby becomes a claim of the .fifth and last class, and this one, having been exhibited after said one year after the grant of letters, should have been placed in the,, fifth class, to be paid after all the other classes of claims were satisfied and, by its terms payment of it being postponed until all other debts of the estate were paid, put at the foot of its class, to be paid after all other claims of its class were discharged. This same .classification and postponement of payment until "all other claims of its class were paid could have been made by the administrator or probate court, had it been sooner presented, without violation of the statute of classification and in conformity with the intention of the maker of the note. The other claimants of its class cannot object, since it does not interfere -with the payment of their claims nor lessen the amount thereof, and the heirs, and distributees, will not be heard to complain because it was a debt to be discharged out of the estate before they were entitled to distribution thereof. If this were not so, we would hold that only the direction of payment after all other debts were paid was in conflict with the statute and void, not affecting the promise to pay, thus leaving the claim one of the fifth class without condition or postponement. The claim was not contingent, and was within the jurisdiction of the probate court to pass upon it and of the circuit court upon appeal, and the judg- . men-t will be reversed, and the cause remanded to the circuit court for other proceedings in accordance with law and this opinion.

Justices Wood and Hart dissenting.