Gilman v. Maxwell

COLLINS, J.

When appellant presented his final account as administrator of the estate of Michael Burns, deceased, to the probate court, certain items thereof were disallowed, and from the decree entered he appealed to the district court. The probate court had wholly rejected his claim of $350 as compensation for his services, and on appeal he was awarded $250 in full for such services. To this extent only was he successful in district court, and thereupon he appealed, claiming that the court, erred in rejecting and refusing to allow other items, which items we will consider in detail.

1. The district court refused to allow what is known as the “Amy Foster claim of $250,” which appellant alleged he had paid to Miss Foster out of his own money, and before any of the trust funds came into his hands. This claim was never presented to the probate court for allowance until December 15, 1898, at which time it appeared as a debit item in appellant’s final account. This was nearly two years after notice to file claims within six months had been duly given to all creditors, under the provisions of G-. S. 1894, § 4509. If this claim was founded on contract, it should have been presented to the probate court for adjustment and allowance within the statutory period. Claims founded on contract must be so presented, or be forever barred. Section 4511. It is not within *379 the power of the administrator of an estate to waive compliance with the statute, and the authorities cited by appellant are not in point, because of this mandatory statute.

But appellant seems to take the position that the Foster claim sounded in tort, and for that reason the statute has no application, citing Comstock v. Matthews, 55 Minn. Ill, 56 N. W. 583 , in which it was held that the statute governs only when claims arising on contract are involved. From the sixth finding of fact, wherein is stated the nature of the Foster claim, it is somewhat difficult to determine just where it should be located among the torts. We cannot readily classify it, and shall not try, referring the curious to the finding itself for further information as to its character. We are content with the-statement that, if any injury resulted to Miss Foster by reason of- the transaction mentioned in the finding, and on which her claim for damages was based, it must have been, in the nature of things, an injury to her person; and under the statute (section 5912) her cause of action died when Burns departed this life, apparently forgetful of the claim the lady had asserted in his lifetime, — according to the appellant’s testimony, — and, unfeelingly and ungratefully, failing to make provision for its liquidation, — a clear case of “man’s inhumanity to” woman. The court below was right when it rejected the Foster item or claim.

2. The court found against the administrator upon his claim that the deceased had in his lifetime' “advanced” to his daughter, the late Mrs. Robinson, money or property in a certain amount or value; and the finding is abundantly supported by the evidence. It follows that we are not required to construe or apply the statute (section 4648) on gifts and grants made in advancement or by way of advancement.

3. We have already stated that the appellant was successful on appeal to the extent of $250, allowed him for his services as administrator. But, notwithstanding this, the district court included among its conclusions of law one to the effect that the respondent should have and recover judgment against the appellant for her costs and disbursements. This was error. On the present respondent’s written objection to the allowance the probate *380 court rejected the appellant’s claim for compensation for his services as administrator, and refused to allow him any part of his bill for such services. On appeal he was the prevailing party, and was entitled to his disbursements at least. Section 4677.

The order appealed from is reversed, with instructions to the lower court to amend its third conclusion of law in accordance with the views herein expressed, the remaining conclusions of law to stand. No statutory costs will be taxed against respondent in this court.