Whittier v. Woodward , 71 Me. 161 ( 1880 )

Libbey, J.

The defendant is administrator of the estate of Ezra Kemp ton, deceased, and gave notice of his appointment December 31, 1874. The claim in suit is for money collected by Kempton as attorney for the plaintiff.

By his pleadings the defendant sets up two grounds of defence to the plaintiff’s right to maintain her action.

I. He says the plaintiff did not present to him the claim in writing, and demand payment within two years from the time he gave notice of his appointment.

II. He says the action was not commenced within two years and six months after he gave said notice.

As to the first question the parties are.at issue whether the claim was duly presented in writing by the plaintiff, and their testimony is directly in conflict. We do not deem it material to determine which should be believed, as we think the petition of the defendant for the appointment of commissioners to determine the validity of the claim was an admission, or waiver, of a presentation and demand. Mitchell v. Dockray, 63 Maine, 82.

But we think the second ground of defence well founded. By act of 1872, c. 85, § 12, no action against an executor or admin-■ istrator shall be maintained on a claim demanded as therein: required, unless commenced during two years after giving notice of his appointment, or within six months next following. This action was not commenced within two years and six months from giving the notice, but it is contended in behalf of the plaintiff that the statute limitation does not apply to this action because it is a continuation of the statute process, commenced by the-defendant within the two years and six months. The defendant fled his petition for the appointment of commissioners in March, 1877, but no notice was ordered upon it, and none appears to have been given to the plaintiff. On the 23d day of July, 1877, she acknowledged notice, and agreed'to the appointment of commissioners. She then first became a. party to the process, and up to that time had a right to commence her action. She did. nothing to assert her claim by action, or the statute process, till more than two years and six months after the defendant gave-notice of his appointment. Her right of action had then become > barred. The fact that afterwards the plaintiff’s claim was committed to commissioners by the probate court, under the statute,, on the defendant’s petition on the ground that he deemed it unjust and illegal, does not deprive him of his right to plead the limitation. It was neither a waiver, on his part, of the limitation, nor-a now promise to pay the claim. Oakes v. Mitchell, 15 Maine, 360; Bunker v. Athearn, 35 Maine, 364.

Plaintiff nonsuit.,

AupletoN, C. J., Waltoh , Barrows, DaNfortii and SymoN-ds,, JJ., concurred.