
    Powell et al. v. Koehler et al.
    
      Contestof will — Statutory limitation's of party entitled to contest— Action saved to any plaintiff inures to all — Disability of absence from state, removed when — Exceptions in stahites of limitations strictly construed.
    
    1. Where, at the time a will is admitted to probate, a person en titled to contest its validity is under the disabilities of infancy, and absence from the state, his right of action is not barred until the expiration of the statutory period after the longer continuing disability is removed; and when the action is saved to any plaintiff, it inures to the benefit of all interested with him in the estate.
    2. The disability of'absence from the state ceases from the time the actual presen ce of the person in the state begins, though such presence be of short duration and while the person is an infant, and is not revived by his subsequent absence from the state, even when commenced during his infancy.
    3. Exceptions in statutes of limitations in favor of persons under disability are construed strictly, and cannot be enlarged from considerations of apparent hardship or inconvenience.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Trumbull county.
    Miles W. Hank, a resident of Trumbull county, died on the 21st day of March, 1875, seized of one hundred and seventy-one acres of land situated in that county. He left a will by which he gave the whole of his estate absolutely to his widow, Clara Hank, making no provision therein, nor by way of settlement, or otherwise, for his posthumous child, which was born a few days after his death. The child died intestate on the 10th day of October, 1875, and the will was admitted to probatq and record the following January.
    The plaintiffs, who are the legal heirs of the deceased child, commenced their action in the court of common pleas of Trumbull county, on the 1st day of May, 1889, to contest the will on the ground that it was revoked by the birth of the child. In • January, 1889, the widow, Clara Hank, died after disposing of the property in question by her will, and the living devisees, and representatives of those who were deceased, were made defendants in the action below. They answered, in substance, that the plaintiffs had not commenced their action within two years after the will they were contesting had been admitted to probate, nor within two years after any disability of either of them had ceased, and the action was therefore barred. It was not denied that the statute of limitations had run a sufficient length of - time to bar the action, against all of the plaintiffs, except Mary G. Powell; and as to her, it was admitted by the parties at the trial, that when the probate of the will was had, she was an infant of the age of nine years, and absent from this state, and that she remained continuously absent therefrom up to the- time of the trial, except, that in the year 1880, she, and her stepmother, when on their way to the home of the latter in the state of Illinois, stopped in Ohio, where they visited for a period of about twenty days.
    The court instructed the jury as follows:
    ‘ ‘ The facts in the case show that the plaintiff, Mary G. Powell, is the only one of the plaintiffs who was within the protection of the disability statute; that at the time the cause of a'ction accrued she was under the protection of two disabilities, one of infancy, which long ago terminated, and absence from the state. It is a conceded fact that while still an infant, a non-resident, and absent from the state, and after the death of said infant, and after said will was probated, she, in control of a person standing in loco pa/rentis to her, came within the state of Ohio for the purpose of passing through it to acquire a new residence in another state; that she remained in this state the period of twenty days, and then went from it and continued absent therefrom continuously up to the time named in the petition, but a greater period than the period of two years. The court, therefore, directs you, as a matter of law, that, upon her coming bodily within this state, although an infant and coming involuntarily, that the disability provided in the statute as to absence from the state was taken away from her; and a greater period having elapsed from the beginning of the running of the statute than two years, • that she is not entitled under the law to maintain this action.
    “It is your duty, under the direction of the court, to find affirmatively that the will is the will of Mr. Miles W. Hank. You will appoint one of your number foreman, and so sign the verdict.”
    The jury returned a verdict sustaining the will, and judgment rendered upon it was affirmed by the circuit court.
    
      F. S. Hanselman and M. Stuart, for plaintiffs in error.
    There are three questions of law involved in this action, as follows:
    
      Fw-st, as to revocation of will by birth of child after testator’s death, and no provisions being made for said ■ unborn child. Revised Statutes, section 5959; Ash v. Ash, 9 Ohio St., 383; Evans v. Anderson, 15 Ohio St., 324; Rhodes v. Weldy, 45 Ohio St., 234; Myers v. Barrow, 3 C. C., 92;
    
      Second, how will contested. Myers v. Barrow, 3 C. C., 92; Muser v. Harmon, 29 Ohio St., 220; Revised Statutes, sec. 5858.
    These questions are settled in this state, and it leaves but one controverted point in this case, and that is the question of limitations.
    Revised Statutes, 5866, provides that an action to contest a will shall be brought within two years from its probate; saving, however, to persons absent from the state, two years after such disability is removed.
    
      Revised Statutes, §4989, being the general saving provisions to prevent the running of the statute, provides that the period limited for the commencement of the action shall not begin to run until he comes into the state. The question then is, does the fact that a minor child is brought in to the state, set the statute to running against such minor child ? The saving in the statute of the disability of absence in the contests of wills, if construed in pari materia with the general saving provisions of the statute, it would seem, would not set the statute to running when the act of coming into the state was involuntary. Sheets v. Baldwin, 12 Ohio, 121.
    This construction, does not tack one disability on to another disability, but would be the rule if there was no disability of infancy by statute. If there was in this section no saving of the rights of infants, still the court would take judicial notice of the fact that a child of tender years is incapable of doing an act that would injuriously affect its rights, and hence could not remove a disability ; and the construction contended for would necessarily follow. It is not the disability of infancy that is soug’ht to be urged here, why this defense should not prevail, but simply the fact of infancy as a reason why the presence of the infant in the state, under a fair construction of this statute, construed by itself or in pa/ri materia with the general saving provisions, does not show either the removal of disability of absence or a coming into the state so as to set in motion the statute of limitations.
    The rule against successive disabilities has no application , as the disability of absence existed at the time the right of plaintiff in error accrued to her. Butler v. Howe, 13 Me., 397; Jackson v. 
      Johnson, 5 Cowen, 74; Wood on Lira., section 6, p. 11.
    Can it be said this child, under the care, custody and control of another, was guilty of laches or default? And upon this principle it has been held that in eases of administration the statute does not begin to run until the appointment of administrator or executor, as against the estate. Murray v. E. I. Co., 5 Br. Ald., 204; Andrews v. Railroad Co., 34 Conn., 57. The statute does not run during a period of civil war. 15 Wall., 555; 44 Ala., 124, This principle is strengthened by the rules adopted by courts in relation to fugitives from justice being brought into a sister state. 39 Ohio St., 273; 47 Mich., 486; Hawley on Interstate Extradition, 45-95.
    We claim as a mere temporary absence does not stop the running of the statute, so a mere temporary return, as flying visits after the residence is changed, will not stop the running of the exception. The supreme court in construing section 4989 of the Revised Statutes, in the case of Stanley v. Stanley, 47 Ohio St., 230, say that the design of the legislature was to give the plaintiff the full six years in which to begin his action, and that defendant came into the state and then left the state before the full time, six years, had elapsed, the running of the limitation was suspended until his return. In other words, the statute was liberally construed. And our supreme court, in 5 Ohio, 444, said the statute of limitations should be liberally construed. The construction of this statute is that it takes more than a mere passing through the state to start the statute. Stanley v. Stanley, 47 Ohio St., 225; 5 Ohio, 444; 12 Ohio, 120; 43 Mo., 501; 1 Mo., 122.
    A guardian can not admit away the rights of his ward, or do any other act to its prejudice. His duty is to protect, not to abandon, and courts will not suffer the ward to he prejudiced either by the guardian’s admissions or conduct. 17 Ohio St., 503; 1 Ohio St., 554.
    The act of the foster mother in bringing’ her, then only a little past twelve years of age, into Ohio, did not start the statute of limitation running against her. The statute of limitation' is founded upon the presumption of negligence in the party seeking to assert a right or claim. Every exception in favor of parties proceeds .upon the theory that by reason of their surroundings or disabilities, they cannot be negligent in asserting their rights. As Pothier puts it (p. 644): “They are established for the punishment of the creditor,’’and are penal in their nature and should be strictly construed in favor of the right sought to he taken away, and this is apparent, when we reflect that if the statute is not pleaded, it is waived, and formerly, if the party failed to plead the statute in the first instance, the court would not allow him to amend by setting it up, it being declared to be a defense like that of forfeiture, not to he favored in law. Indeed, no longer ago than 1843, in 12 Ohio, 131, this court frowned upon that statute and declared it inequitable and not to he favored where its effect is to defeat a just right.
    The facts of this case constitute it a well-grounded exception to the rule, or more properly speaking, place it out of the statute, and require you to dispose of it on another and equally well-recognized rule of law, stronger and more imperious than the former, because founded upon a principle of equity and innate justice rather than the harsh and penal rule that takes away one’s rights; and the principle is this, that a child is not chargeable with the negligence of one in whose charge he is,, i. e., its custodian. In other words, the doctrine of imputable negligence or delay, as against a child, does not pertain in Ohio, whatever may be the rule in some of the other states. Railroad Co. v. Manson, 30 Ohio St., 451; Railroad Co. v. Snyder, 24 Ohio St., 670; 18 Ohio St., 399; Railroad Co. v. Eadie, 43 Ohio St., 91; Davis v. Guarnieri, 45 Ohio St., 470; Spencer Township v. Pleasant Township, 17 Ohio St., 31; O'Meara v. State, 27 Ohio St., 519; Rockwood v. Whiting, 118 Mass., 337, 340.
    
      Charles Fillius and George M. Tuttle, for defendants in error.
    Cumulative disabilities are not allowed, nor can one disability be tacked to another, nor can the disability of an ancestor be tacked to that of an heir to lengthen out the period. This is the uniform and unbroken rule. Wood on Lim. of Actions, 491; Angelí on Lim., 522.
    Nor are successive disabilities in different persons as ancestor and heir allowed, nor can they be thus connected. Whitney v. Webb, 10 Ohio, 513; Cossens v. Farnan, 30 Ohio St., 498.
    While it is said the defense is relying on a technical, unconscionable statutory defense, let it be remembered that this principal contestor, Mary G. Powell, is asserting her right to this property by virtue of a technical statutory rule,-section 5959, which never was intended for a case like this, and which in such a case works such a hardship and invokes a rule of intention on the part of the testator so utterly at variance with any intention one can possibly conceive him to have had, that it may well be believed the legislature would have excepted it from the operation of the statute had it been possible to foresee and provide against all cases of hardship.' It will be, I think, a new theory to this court that statutes of limitation are founded upon the presumption of negligence in the party asserting a claim. The statute of limitations is not for the punishment of those who neglect to assert their rights by suit, but for the protection of those who have remained in possession under color of a title believed to be good. McIvor v. Ragan, 2 Wheaton, 29.
    This defense does not rest solely upon the plea of the statute of limitations. It is rather a case where plaintiff admits she is not within the condition permitting her now to contest this will, sections 5933 and 5866, but she claims that, at the time of the commencement of this suit, she was under the disability of absence from the state, mentioned in the saving clause, whereby she was entitled to commence and maintain this suit, not only at any time during her absence, but if not then, at any time within two years after her disability was removed. So that it appears she is claiming to maintain this action on account of an alleged disability against the consequences of which the statute relieves her.
    It is true that in the case of Sheet* v. Baldwin, 12* Ohio, 120, this court held that the plea of the statute of limitations is not to be favored. The question there arose upon a motion for leave to plead the statute, after verdict and judgment, which was refused. Wood v. Carpenter, 101 U. S., 139; 1 Peters, 360. We maintain:
    1. That the plaintiff’s claim possesses no equitable character entitling it to any particular consideration from this court.
    2. That the defense is neither ill favored in law nor conscienceless, but exactly the contrary, and
    3. That the rights of the respective parties, proponents and contestors of this will, are to be determined by their legal rights under section 5933 of the Revised Statutes, which is in effect the same as the statute in force at the date of the probate of the will, S. & C., 1618. The disposition of property by will in Ohio is wholly regulated by statute. Not only so, but every detail connected with the execution of wills, persons who may make them, their effect when made, how proved or probated, and when probated the effect of it, are all fixed by statute. Revised • Statutes, chapter on wills, section 5913, et seq. After a will has been duly admitted to probate, the statute provides that the probate.shall be forever binding, unless overcome by proceedings to contest the will, which must be carried forward in the formal manner pointed out by the statute. Revised Statutes, sections 5858 to 5866. The particular section of the statute of wills which concerns us in this case is section 5933, which is identical with section 19, S. & C., 1618, in force when this will was probated. Section 5866 referred to by counsel for plaintiff in error, is found in the chapter relating to the contest of wills, and while the wording is somewhat changed from the section above quoted, it otherwise differs in no respect from it. Section 5933 differs quite materially from the ordinary act of limitations. While as a matter of fact it limits the time within which the will may be contested, yet at the same time it gives a right to avoid the effect of the probate of the will, without which the right would not exist at all, and at the same time prescribes a condition to the assertion of the right, viz: That the remedy by contest of the will shall be pursued within two years from its probate. And if not so commenced, the right and the remedy both absolutely end. The period of two years within which the contest must be instituted is therefore a condition rather than a limitation on the right of action. Railroad Co. v. Hine, 25 Ohio St., 629.
    Plaintiff in error now seeks to avail herself of the saving clause of section 5933, by the claim that she was at the time the will was probated, and continuously prior to the filing of the petition had been, absent from the state. The rule is uniform and unvarying that, in order that a party plaintiff may avail himself of an' alleged disability, it must appear that it has been a continuous disability, extending without interruption from the time the cause of action accrued. Angelí on Lim., section 196; Wood on Lim. of Actions, 9-10; 2 Greenleaf on Evidence, section 439; Durore v. Jones, 4 T. R., 300; Carey v. Robinson, 13 Ohio, 181.
    The real question in the case is this: Was the disability of absence from the state upon which plaintiff in error relies, removed or discontinued when she came into the state in September, 1880, remaining twenty days? If it was removed, the two years within which she was bound to institute a suit to contest the will with reference to this disability began to run then and transpired two years thereafter.
    Applying the terms of the statutes, section 5933, to the facts of this record, there seems to be no room for discussion, for the statute is so plain and so devoid of ambiguity as to leave no room for construction.
    Counsel gravely proceeds to argue that section 4989 is in pari materia with section 5866, and that the words “until he comes into the state” in section 4989, “mean more than being in the state, ’ ’ and hence, absence from the state does not cease when the party is in the state. In the first place, section 4989 is not in pari materia with section 5933, or section 5866, and does not provide a general saving provision to prevent the running of the statute. Section 4989 relates to causes of action and accrues against persons that are defendants.
    In other words, this saving clause provides against, absent defendants, and has not the remotest connection with the section in hand, which relates to a saving in favor of absent plaintiffs, who, in a case like this, have no standing in court unless they can bring themselves within the saving clause of section 5933. The section of the statute which contains the general saving provision in favor of plaintiffs to prevent the running oí the statute is section 4986, and a reading of that section discloses that it contains no saving whatever to plaintiffs absent from the state. The fact is that sections 5933 and 586.6 are the only sections in our statutes providing a saving to plaintiffs absent from the state. It is thus seen that section 4989 has nothing’ whatever to do with the case, relates entirely to other parties and to a different class of cases, and is doubtless founded upon a policy quite distinct from section 5933 or 5866. The statute is that the probate of the will shall be forever binding if no person interested in it shall appear within two .years of its probate to contest it, saving, however, to persons absent from the state, the like period after the disability is removed. Plaintiff seeks to bring herself within this saving clause. Confessedly, therefore, she is barred unless she can show that she comes within the saving clause. The burden is upon her, and the rule of construction with reference to such clauses is forcibly stated in Clark v. Mississippi, 52 Am. Dec., 248.
    One of the best settled rules is that the language of the act of limitation must prevail, and no reasons based upon apparent inconvenience or hardship can justify a departure from it. Amy v. Watertown, 130 U. S., 320; McIvor v. Ragan, 2 Wheaton, 29; Sacia v. DeGraaf , 1 Cowan, 256; Kendall v. United States, 17 U. S., 125; Angell on Lims., pp. 20, 24, section 12; Wells v. Child, 12 Allen, 336; Tyler on Ejectment, 928; Scott v. Hickox, 7 Ohio St., 94; Cozzens v. Farnan, 30 Ohio St., 491; Bryant v. Swetland, 48 Ohio St., 194; Wood on Lims, of Actions, 496.
    Another and important rule of construction of these statutes is, that their express terms cannot be enlarged on .the ground of any inherent equity in the party claiming under them, so as to create an exception in his favor. Upon this proposition I believe the authorities to be quite uniform. The leading one in this country I believe to be the ease of Demorest v. Wyncoop, 3 John Ch., 132, where the whole subject is most exhaustively discussed. Beckford v. Wade, 14 Vesey, 88; Jones v. Lemon, 26 W. Va., 629; Clark v. Trail, 1 Met. (Ky.), 35.
    Again, there is another rule of universal application in the construction of statutes of limitation, viz.: Unless the statute makes express exception in their favor, infants are bound by them the same as any and all other persons. Vance v. Vance, 108 U. S., 514; Hall v. Bumstead, 20 Pick., 2; Beckford v. Wade, 17 Vesey, 87; Warfield v. Fox, 52 Pa. St., 382; Tyler on Ejectment, 928; Griswold v. Butler, 3 Conn., 234; Rowell v. Patterson. 76 Mo., 196; Erwin v. Turner, 6 Ark., 14; Morgan v. Hamlet, 113 U. S., 449; Angell; on Lims., section 23; Fairbanks v. Long, 91 Mo., 628; Cone v. Dunham, 59 Conn., 146; Angell on Lims., sections 485, 486, 487; Booker v. Favorite, 17 Ohio St., 548. There is no such qualification as adult persons. All are brought into the same category and are to be tested by the same rule. The law neither knows nor recognizes infants as distinguished -from adults. It knows merely persons. There can be no question of equity in it. And as the statute thus recognizes no distinction of infancy and majority, the same rule is to be applied to both. Nor does the statute make any distinction between voluntary or involuntary disabilities, nor between voluntary or involuntary removal thereof. Buswell, Limitation and Adverse Possession, section 120.
    This court as early as the 6 Ohio, in the case of Granger, Admr., v. Granger, 35, held that “when the statute of limitations begins to run against the intestate in his lifetime, it will run to its completion without interruption by the death. ’ ’ The same doctrine is held in the case" of Bartlow v. Kinnard, 38 Ohio St., 373; Wood onLim. of Actions, 8. It is true that the statute has been held not to run during a period of civil war, where the courts are not open to afford relief to parties. Burroughs v. Bloomer, 5 Denio, 532.
    The case of Turner v. Shearer, 6 Gray, 427, is instructive upon the argument made by plaintiff’s counsel, that perchance Mary G. Powell, though a girl thirteen years old, may not have come into the state in 1880, of her own free will and accord. Faw v. Roberdeau, 3 Cranch, 174.
    Plaintiff, at the time the will was probated, was under'two co-existing disabilities, viz., infancy and absence from the state, and she could have maintained a suit to contest this will at any time during the continuance of either of these disabilities, or within two years after the discontinuance of either. The discontinuance of either disability did not affect her right to claim under the other if it still continued. Sturt v. Mellich, 2 Atkyn’s, 610; Angell on Lim., 209; Wood on Lim. of Actions, p. 14, section 6.
   Williams, J.

The question in the case arises upon the instruction of the court to the jury. The chapter of the Revised Statutes relating to wills, contains the provision that: “If no person interested shall, within two years after probate had, appear and contest the validity of the will, the probate shall be forever binding, saving, however, to infants, and persons absent from the state, or of insane mind, or in captivity, the like period, after the respective disabilities are removed.” Revised Statutes, section 5933. And section 5866, provides that: “An action to contest a will or codicil shall be brought within two years after the same has been admitted to probate, but persons within the age of minority, of unsound mind, imprisoned, or absent from the state, may bring such action within two years after such disability is removed.”

Where, at the time a will or codicil is admitted to probate, a person who may contest it, is under two or more of the disabilities mentioned in the statute, his right of action is not barred until the expiration of the statutory period, after the longest continuing disability is removed; and, so long as the right of action is saved to any plaintiff, the action brought by him inures to the advantage of all persons interested with him in the estate; for the will, being an entirety, is wholly inoperative when set aside, at the suit of any party, and the estate must then be divided and distributed under the law. It is conceded that Mary G. Powell attained the age of majority more than two years before the action below was brought, and, that none of the other plaintiffs were within the saving clause of the statute; so that the legal question here is, whether, where a person is under the two disabilities of infancy, and absence from the state, when his right of action accrues, his subsequent temporary presence in the state, while he is yet an infant, has the effect of removing his disability of absence from the state.

The question has not heretofore received the consideration of this court, nor, so far as we have been able to discover, of the court of last resort of any of the states. It appears to be well settled, however, that exceptions in statutes of limitations in favor of persons under disability, should be strictly construed, and never extended beyond their plain import. The rule is, that in the absence of a saving clause the statute runs against all persons, whether under disability, or not; and with such a clause, it runs alike against all who cannot bring themselves clearly within some one of the excepted classes, and against those who can, according to the terms of the clause. The general provisions of the statute are restrained only so far as there are express words of exception; and it is therefore incumbent on those who claim the benefit of the exception to show that they are, in all particulars, within its descriptive terras and conditions. And, where the statute has created specific exceptions, all others must be deemed excluded. The courts are without authority to enlarge or change those specified, or establish others, though in particular cases the ends of justice might seem to be subserved, if it were done. It was said by Chancellor Kent, in Demarest v. Wynkoop, 3 John. Ch. 129, that: “The doctrine of any inherent equity creating an exception as to any disability, where the statute of limitations creates none, has been long, and, I believe, uniformly exploded. General words in the statute must receive a general construction, and if there be no express exception, the court can create none.” And, in Amy v. Watertown, 130 U. S., 320, it is declared to be the general rule respecting statutes of limitations, that the language of the act must prevail, and no reason based on apparent inconvenience or hardship will justify a departure from it. True, in a few instances, courts have apparently made exceptions not found in the statute; but they are only such as arise from a state of war, or other imperative necessity, as when the courts are shut, or by act of law one party is forbidden to sue, or the other is rendered incapable of being sued. Persons within the saving provisions of the statute, are not precluded from suing while the disability lasts. The time within which they may sue, is simply extended for a definite period after the disability ceases, and when it ceases they stand upon the same footing as other persons. The statute begins to run against them from that time, and once started, nothing can prevent the bar but suit brought within the prescribed period. The rule, which is generally maintained in this country, was announced by Lord Talbot, in Belch v. Harvey, 3 P. Wms. 287, in the following language: “The persons who are the subject of the proviso are not disabled from suing; they are only excused from the necessity of doing it during the continuance of the legal impediment; therefore, when that difficulty is removed, the time allowed for their further proceeding should be shortened. If they would excuse a neglect under the first part of the proviso, should they not do it upon the terms on which such excuse was given. ’ ’

Necessarily, a disability is removed, within the purview of the statute, when it no longer exists ; that of absence from the state, ends when the personal presence of the party in the state begins; and once ended by such presence, though it be but for a temporary purpose and of short duration, the disability does not revive by subsequent absence, however permanent in its character, or long continued. Faw v. Roberdeau's Exr., 3 Cranch, 174. This is not disputed, when applied to adult persons of sound mind; but, it is contended, the rule should be different with respect to infants, who are under the control of those in whose custody they are placed, and incapable of binding themselves by their own acts, or by their consent to the acts of those having control over them; and upon that ground, it is claimed Mary G. Powell’s presence here, in company with her stepmother, did not terminate her disability of absence from the state, which theretofore existed. We find nothing in the statute which gives support to that position. Every person who is absent from the state when his cause of action accrues, whether of consenting capacity or not, is included 'in the saving clause of the statute under consideration. The only fact made necessary to the creation of that disability, is actual absence from the state; and, in the nature of things, the only fact essential to its removal, in any case, is the actual presence of the person in the state; no distinction having been made by the statute, either with respect to the disability, or its removal, on account of the age, or capacity of the person, or other circumstance. It was undoubtedly competent for the legislature to have made the distinction; but having failed to do so, when the whole subject was before that body, we must conclude the omission occurred because such provision was deemed inadvisable; and it may have been so considered, for the reason, that by the perpetuation of disabilities, resulting from a provision of that kind, the settlement and distribution of estates might be unreasonably delayed, while the g’eneral policy of our law favors the speedy settlement of estates, and the repose of titles derived from them. At all events, the omission, if it be one, must be supplied by the legislative body, and cannot be by the courts.

Under an English statute of limitations which saved to persons “beyond the seas” when their cause of action accrued, a limited time after their return, within which to sue, it was held, in the case of Sturt v. Mellich, 2 Atkyn, 610, that the statute run from the time the party was returned, and his going abroad again gave him no privilege, “for that was gone by his having once returned to the kingdom, after his cause of action accrued.” In the course of the opinion, the Lord Chancellor Hardwicke remarked: “Suppose a creditor, both of non-sane memory, and out of the kingdom, comes into the kingdom, and then goes out of the kingdom, his non-sane, memory continuing; why his privileg’e, as to being .out, is gone; and his privilege as to non-sane, will begin from the time he returns to his senses.” The observation above quoted, while not necessary to the decision of the exact question involved, and merely illustrative of the point ruled, has been accepted by text writers in this country, as a correct statement of the law. Angelí on Limitations, section 198. Wood on Limitations, section 6, p. 24. The English statute, like ours, makes no distinction, so far as the disability arising from absence is concerned, on account of the mental condition, or age of the absent person ; so that, the rule stated by Lord Hardwicke is not less applicable to cases arising under our statute, than to those under the one which was before him; and is, moreover, in accordance with what we regard as the proper interpretation of our statute.

It is claimed, however, that the two sections of the act we have been considering, should be construed in connection with section 4989, of the Revised Statutes, which provides that: “If, when a cause of action accrues against a 'person, he is out of the state, or has absconded, or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed ; and if, after the cause of action accrues, he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.” The language “comes into the state,” in the above section, it is said, imports an act of choice, involving capacity to choose, which should be accepted as indicating a legislative intent that a like act is necessary to the removal of the disability of absence under the other sections. It is not necessary to determine whether the language referred to has the effect suggested; for granting’ that it has, the result claimed by no means follows. The section relates entirely to persons against whom a cause of action accrues, and prevents them from availing themselves of their absence or concealment as a means of defeating the action. The cases to which it applies are different in their nature from those covered by the other two sections, and required different language to provide for them; it therefore throws no light on the construction of the other sections.

Judgment affirmed.  