Austin v. Saveland's Estate

45 N.W. 955, 77 Wis. 108, 1890 Wisc. LEXIS 179

• Court: Wisconsin Supreme Court
• Decided: May 20, 1890
• Status: Published

Opinion

Cassodat, J.

It is claimed by the learned counsel for the plaintiff that the order made by the county court December 1, 1880, limiting the time for creditors to present their claims against said estate to six months from the date thereof, was inoperative as a limitation by reason of the failure therein to “appoint convenient times and places when and where the court ” would “ receive, examine, and adjust such claims,” as indicated in sec. 3839, R. S.; and Brill v. Ide's Estate, 75 Wis. 113, is relied upon in support of such contention. In that case the order made by the county court not only failed to make such appointment, but the only appointment made purported to have been made by the “ county judge ” instead of “ the county court,” as prescribed in the section cited. The case at bar is clearly distinguishable, in that such appointment purports to have been made: “ By the court. J. E. MaNN, County Judge,” at the same time as the making of the order of limitation. We must therefore regard both papers or orders together as really constituting one order in law, and hence effectual as an order of the court limiting the time for creditors to present their claims against said estate. It may be proper here to say that since the decision of that case we have had some doubt as to its soundness, especially in so far as it is there indicated that such appointment could only be effectual when actually incorporated into the order of limitation itself. That it is the better practice to so incorporate the appointment in such order is manifest, but such incorporation certainly cannot be essential where, as here, they are both made by the same court and at substantially the same time. The extent to which the case cited will be recognized as authority is hereby reserved for future consideration.

The plaintiff’s claim was not filed, presented, or exhibited to the court t until more than four years after the time so limited for creditors to present their claims for allowance had expired. The statute declares, in effect, that every person having such claim, who fails to exhibit the same to the court “ within the time limited for that purpose, shall be forever barred from recovering such, demand, or from setting off the same in any action whatever.” Sec. 3844, E. S. This court has held, as to resident creditors, that such bar does not merely affect the remedy, but extinguishes such right of recovery as to all claims proper to be allowed within the time limited. Carpenter v. Murphey, 57 Wis. 541. See Hartman v. Fishbeck, 18 Fed. Rep. 291. Since the notes were not due until some years after the time so limited for presenting claims had expired, it is urged that they were not provable against the estate during the time so limited. But sec. 3843, R. S., expressly empowers the court “ to try and decide upon all claims which by law survive against or in favor of the executors and administrators,” not therein excepted, and to “ examine and allow all demands, at the then present value thereof, which may be payable at a future clay, . . . and may offset such demands in the same manner in favor of the estate.” So the statute provides, in effect, that when two or more persons shall be indebted on any joint contract, and either of them shall die, his estate shall be liable therefor, and the claim may be allowed by the court as if the contract had been joint and several. Sec. 3848, R. S. By the notes in question, the deceased and -Brigham, “ severally and jointly, promised to pay” the amounts named to the plaintiff or -order. Manifestly, these notes were provable as a claim against the estate within the time limited in the order. This disposes of the contention that the notes in question constituted a contingent claim within the meaning of sec. 3858, R. S., and hence provable within the time prescribed by sec. 3860, R. S., as construed by this court. Ernst v. Nau, 63 Wis. 134; Mann v. Everts, 64 Wis. 372; Logan v. Dixon, 73 Wis. 533; Webster v. Estate of Lawson, 73 Wis. 561. The plaintiff was not liable thereon as. security for the deceased, and the same was not a contingent claim against the estate, which could not be proved as a debt before the court, within the meaning of sec. 3858, R. S. The “several and joint ” liability of the deceased and Brigham to the plaintiff was an absolute liability, and it was none the less absolute because the notes did not become due until after the time limited in the order. A contingent claim, within the meaning of the statutes, is one where the absolute liability depends upon some future event, which may never happen, and which therefore renders such liability uncertain and indeterminable. Sargent’s Adm’r v. Kimball’s Adm’r, 37 Vt. 320; Edwards v. Roepke, 74 Wis. 575; Foster v. Singer, 69 Wis. 392. This is not such a claim.

By the Gov/rt.— The order of the circuit court is affirmed.