Phoenix Insurance v. Guderyahn

20 Ill. App. 161, 1886 Ill. App. LEXIS 116

• Court: Appellate Court of Illinois
• Decided: August 6, 1886
• Status: Published

Opinion

Moran, J.

The only question presented is, does the two years’ limitation, prescribed by Sec. 70 of Chap. 3 of the R. S., .bar the claim under the circumstances shown by the record. It has been expressly decided by the Supreme Court that filing a claim against an estate, in the probate court, with the cleric thereof, within two years after the grant of letters of administration, is an exhibition of the claim to the court, so as to take the claim out of the limitation of two years in Sec. 70, above referred to, and that if the claim has been so filed the claimant may, after the expiration of two years, summon the administrator, and if the claim is allowed, have it paid in due course of administration. Wallace, Ex’or, v. Gatchell, 106 Ill. 315.

The presentation of the claim to the court and the filing thereof was, then, a sufficient exhibition of the claim to the court to take it out of the two years statute. We presume it would not be contended, that if the claim had been called and dismissed at any time within the two years from the issuing of letters, it might not be filed again before the expiration of the two years, and adjudicated and ordered paid in due course. A dismissal of a claim on call because the claimant does not appear, determines nothing as to the justice of the claim, and can not be a bar to an adjudication of the claim when newly presented, and the effect of the dismissal is precisely the same whether it occurs before or after the expiration of the twro years. We are clearly of the opinion that the circuit court, having found the claim valid, erred in directing it to be paid out of assets not mentioned or accounted for by the executor, and the case will be reversed and remanded to the circuit court for a new trial.

Reversed and remanded.