
    BARSALOU’S CASE.
    
      Surrogate's Court, New- York, County;
    
    January, 1857.
    Limitation of Actions.—Rejection of Claim by Personal Representatives.
    The provision of the Revised Statutes barring “ any action” upon a claim against the estate of a deceased person, which is not sued within six mouths after its rejection by the executor or administrator, applies to and prohibits proceedings before the surrogate to collect the claim, as well as to actions in courts of law, strictly so called.
    The rejection of a claim by the executor or administrator, must be express and final, to entitle him to the protection of the statute.
    Petition to the surrogate by a creditor of an intestate for payment of his claim.
   Bradford, S.

—Victor Barsalou, claiming to be a creditor of the intestate, having presented a petition for the payment of his demand, the executor interposed as a defence that he had regularly advertised for claims; that the demand in question had been presented for payment, and had been rejected; and that the petitioner having failed to institute a suit at law for its recovery within six months thereafter, the claim was barred by the statute.

The Eevised Statutes have provided a convenient and summary method for the ascertainment of demands against the estate of a deceased person. Six months after the grant of letters, the executor or administrator may, under the order of the surrogate, give notice by advertisement, requiring all persons, having claims against the deceased, to exhibit the same to the executor or administrator within six months from the day of the first publication of such notice. When the claim is presented, satisfactory vouchers may be demanded, and also the affidavit of the claimant, that the demand is justly due over and above all payments and offsets. If the justice of the claim be doubted, the matter in controversy may be referred to three referees, approved by the surrogate; or if the claim “be disputed or rejected, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt or any part thereof be then due, or within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon.” (2 Rev. Stats., 88, 89, §§ 31-38.)

These provisions are judicious, and they afford ready and prompt means for the final adjustment of estates. The limitation of six months within which the creditor must bring his action at law, or be forever barred, relates only to the commencement of his suit, and is sufficiently long for all creditors who are in earnest, to determine whether or not they will resort to legal proceedings. Beyond that period the law does not permit their doubts or hesitancy to stand in the way of the distribution of the estate among other parties whose rights are unquestioned. It would certainly be hard to suspend all creditors, next of kin and legatees, from the enjoyment of their respective shares, because of some single claim, hanging like a cloud over the whole estate, and which the claimant was in no haste to submit to the decision of a legal tribunal.

I consider the statute, therefore, as entirely reasonable, and am not inclined to give it a narrow or strict construction. For example, if the letter only be regarded, then it applies simply to actions at law, and not to proceedings, like the present, for the recovery of claims in the Surrogate’s Court. I look, however, to its spirit, meaning, and intent, and have no hesitation in holding that the limitation of six months within which to bring suit, is applicable in principle to proceedings before the surrogate, and is not limited solely to actions at law. There is no reason why, on such a point, there should be one rule in one court and another rule in another court; one kind of justice in one place, and another kind in another place. It was from analogy that courts of equity adopted the statute of limitations applicable to legal demands, and from analogy I am led to apply the provisions of the statute now under consideration to proceedings on claims before the surrogate. This leaves the law consistent, harmonious, and symmetrical, in all its departments of administration.

On coming to apply the statute to the case now before me, I find the main difficulty to consist in determining whether the claim in question was “ disputed or rejected” within the meaning of the statute. It was presented to the executor in writing, on April 7,1855. Two days after, the executor replied that he could not receive it as a claim, but required “ satisfactory vouchers in support thereof,” and the claimant’s “ affidavit according to the statute.” A bill of items, amounting to $581.38, duly verified, was accordingly made out by Mr. Barsalou, and presented to the executor, who, on April 21, 1855, wrote to the claimant as follows:—“Your claim presented against the estate of William Wright, deceased, I must reject, on the ground that you took his affidavit for the amount of $100, and gave him credit for said amount, and no circumstance having since occurred which would justify us in questioning the correctness of the affidavit. I do not object to the $181.38.”

Are the words “must reject” contained in this communication, final and conclusive as a rejection of the claim ? The petitioner insists that they are not, and that they were not so intended ; and, to sustain the position, points to his own letter in reply, dated April 23,1855, wherein he says :—“ I duly received your letter of April 21, admitting my claim for $181.38, but stating that you want to reject the balance of $400, on the ground that I took his affidavit and gave him credit in his lifetime for that amount. However, considering the nature of the affidavit, and the manner in which it was received, I beg to inclose a copy of it, thinking that when you settle with the estate, you will find it proper to make a reserve for that amount.” Subsequent to this period, there were various communications between the parties, until September, 1856, when the executor, in reply to a request from the petitioner’s attorney for a definitive answer in regard to the claim, said:—“ I have, since 1 saw you, carefully and, I think, impartially considered all the arguments you have brought to bear in relation to the payment of Mr. Barsalou’s claim against the estate of William Wright, deceased; but I still am unable to discover any reason for changing the opinion I expressed in my letter to Mr. Barsalou of April 21, 1853.”

There does not appear at any time to have been a dispute of the items of Barsalou’s bill, which was for goods sold and delivered, but the controversy related solely to an alleged payment by Wright of $400, to a clerk of Barsalou, who absconded in 1851. Wright, in his lifetime, had made an affidavit of this payment, and this, the executor contended, had been accepted by Barsalou as proof of payment.

I have no opinion to express as to the merits of that question, but am only called upon to consider whether the demand was so rejected by the executor as to prevent the court from reaching and passing upon the merits. There can be no doubt that if the executor had rested upon the notice contained in the letter of April 21, 1855, as a positive rejection, and had refused to parley with the creditor on the subject, the language of the letter was sufficiently explicit to constitute a dispute or rejection of the demand. If that attitude had been taken at the outset, the creditor would have known where he stood, and have been bound to act hostilely. But when, with the rejection, a reason for it was given; when by the correspondence and conduct of the claimant the executor was apprised that the rejection was not esteemed as definitive, but only as deliberative; when the arguments were considered between the parties pro and con, and the facts were further investigated; when the executor, in his last letter upon the subject, alludes to thy alleged rejection in April, 1855, as an “ opinionwhen down to the time of this trial the claimant had never learned that the executor regarded it as a rejection on which the statute of six months’ limitation began to run; when, in fact, there was no reference to the statute even after the efflux of the six months, but the parties were still treating; under such a state of circumstances I have no doubt that it is the duty of the court to interpret the whole matter through, from beginning to end, in harmony with the conduct of the parties. On either side, there was a mutual effort to convince each other. A strict view of the letter of April, 1855, as a rejection under the statute was never even suggested. The subsequent communications were inconsistent with such an idea. If the executor intended to avail himself of the statute, and to occupy that ground, he should have stood upon it, so that it could have been seen that he was an adversary. "When he entered into the field of argument and deliberation; good faith required that a new attitude or the resumption or the reservation of an old one should be signified, so that the other side might not be misled. That notice was substantially given by the letter of September, 1856, and not before. The statute, consequently, is not a bar to the present proceeding.  