Wintermeyer v. Sherwood

The plaintiff’s second cause of action embraces twenty-nine independent items for money loaned on different dates, every one of which is contained in claim No. 1, Exhibit 0, presented by the plaintiff to the defendant in September or October, 1890. This claim also included a promissory note for $500, given by the testator to some person other than the plaintiff (which he had acquired), and other items not embraced in claim No. 2, which was presented September 30, 1891. It is undisputed that in October or November, 1890, the defendant offered to pay the note, and afterwards did pay it, but refused to pay the other items of the claim. Notwithstanding the refusal to pay these items, the referee refused to find the following request, preferred by the defendant: “Seventh. After the production of those checks, Mr. Marvin, in behalf of the defendant, and by her instructions, in the fall of 1890, informed the plaintiff personally that defendant, as executrix aforesaid, rejected his claim, and refused to pay it, and the claim was then disputed and rejected by defendant.”

Construing this refusal by the referee’s opinion, as this court may, it is plain that the request was refused on the theory that part of the claim could not be admitted and paid and the remainder of the items rejected, so as to set the short statute running as to items so rejected. The referee said in his opinion: “The facts, so far as they relate to the short statute of limitations, are in substance as follows: In or about September, 1890, the plaintiff presented an account, unverified and without vouchers, to James R. Marvin, who was the attorney and counsel of the defendant and the estate she represented. Thereafter Mr. Marvin asked the plaintiff if he had any vouchers. In response to this inquiry the plaintiff produced a number of checks and left them with Mr. Marvin. Included in this original claim of the plaintiff was a note for $500, which has become known in the case as the ‘Hopfner Note.’ Some time in October, 1890, Mr. Marvin informed the plaintiff that he could do nothing with the account; that the defendant disputed and rejected it. At the same time it appears that Mr. Marvin informed the plaintiff that the defendant would pay the Hopfner note. * * * The difficulty in this case, so far as the defendant is concerned, is that the whole claim origin

The conclusion of law of the referee follows, the opinion, and holds that the statute did not begin to run until September 30, 1891. The holding that, in case a claim which consists of independent items is presented to the representative of a decedent, one item cannot be admitted and the remainder rejected, so. as to set the short statute running as to those rejected, does not seem to this court to be sound. Such a rule would be inconvenient to claimants and to representatives, and would often prevent the former from being promptly paid demands conceded to be just; and, on the other hand, would expose estates to suits which could be defended only in part. If some of the independent items of a claim cannot be admitted and paid and others rejected, so as to set the statute running as to the latter, the final'settlement of estates can be indefinitely postponed by the presentation of claims partly just and partly unjust, which would necessarily delay final settlements, until the six-year statute had applied as a bar to the rejected claims, and defeat the very purpose of the short statute, which was passed to facilitate the early settlement of decedents’ estates. The record does not show whether the defendant has or has not published a notice to creditors to present their claims, and it was held in Salomon v. Heichel, 4 Dem. Sur. 176, that, under ,§ 1822 of the Code of Civil Procedure, the short statute does not run against a rejected claim unless the notice to present claims' has been published. This seems toms to be a misconstruction of the section. The object of the publication of .a creditors’ notice is to advise claimants when and where claims may be presented, and to enable estates to be promptly settled, and their representatives protected in payments which may be made. If this section is to' be literally construed, the statute would not run against a claim presented while a creditors’ notice was being published. It reads: u 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 a notice requiring the presentation of claims,” etc. When a claim has been presented and rejected, there is no occasion for a potice to that creditor, and the short statute begins to run as to it though nó notice has been published. Field v. Field, 77 N. Y 294 ; Code Civ. Proc., § 1822. Three witnesses, not interested in the result of this action, testified that the items embraced in the second clause

I concur, and think that the judgment should also be reversed because the referee assumed that the giving of a pheck imported a loan. Sternfeld’s evidence is conclusively shown to be utterly unreliable. The referee also erred in granting costs.

O’Brien, J., concurs.