3 34 CASES TNTIIE SUPREME COURT Bennett et al. vs: Dawson adx, et aL [January BENNETT ET AL. VS, DAWSON ADX ET AL. A demand against an estate, barred by the statute of non-claim and regularly adjudged at law to be so, cannot afterwards be successfully prosecuted to recovery in equity, either against the representatives, or the heir or distributee, to whom assets may have descended or been distributed. An demands subsisting – at the time of the death of the testator or intestate, whether matured or not, capable of being asserted in a Court of justice, whether of law or equity, must be exhibited within two years; also all coming into existence at any time after the death and before the expiration of the two years—without regard to questions of hardship, inconvenience, or diligence, unless they challenge a want of constitutionality in the operation of the non-claim statute, as. applicable to a particular case: ( Walker ad, vs. Byers, 14 Ark 247.) Appeal from tho Hot Springs Circuit Cauct n Chancery: The Hon THEODORIC F. Somi.ELs, Circuit Judge. Watkins & Gallakher for the appellants. Williams & Williams for the appellees. Mr. Justice Scow delivered the opinion of the Court. This cause was brought here, by appeal, froin The chancery side of the Hot Spring Circuit Court. It is upon a bill filed against the administratrix and heirs awl distributees of Henry F. Dawson, deceased, who had, in his lifetime, become security of Owens and others, in an injunction bond executed by them, in a cause against the present appellants, to enjoin the collection of a judgment at law_ During the progress of the injunction smt, Dawson, the security in the injunction bond, died, and letters of administration were granted upon his estate on the .9d day of December. 1850. So that the two years allowed by law fru the presentation of claims against his estate, would not
(ii I III s1II ii1 IITs 335 Teirn, 1857] Bennett et al: vs: Dawson adx. et a1. expire iuitiI the 211 of Deo inlier, 1852, The injunction 'snit was deenled iii the 12th of , dulv, 1852, at which time the injunction was a i ssolved, :mil damages assessed, and it was thus ascertained that Da wswl's estate Iliad b-iccinni liable on the bond. This, it will lw perceived, was nearly five months betl-11.1` the expiration of the two years allowed by lOw for the presen- tation of claims against his estate. On the 3 1 11 day of .1 auflar:‘, 1853, (one month after the expiration i if the two years from the grant of letter i s of admistra-tion), tins ilacm, rogallarly probated agreeably to the statute, was, for the first time 1 /14'q0111-1 . 11 ti ti adinniistratrix for allowance, against tlic esto te of her intestat-, and was rejected by het, -Upon which ;in action at law was commenced frainst lief, iii hi representative (liar:deter, which she defending upon the gromid ti i it the dimand 11;111 mit Is 4'11 1 ITS1-11td to hl'r two yi ars, w;is fiimall decided favor by this ici i ert, at the .1n-1111111'y term, 1854. ( lkimett, et al vs: Duwsoll l't id_ 15 Ar1, R 412, ) T111 e]] an ts then filed this bill in aim-(Try , to Nvi, ich r sin sta ned in 11111 Court below. and the suit ilismisseal, and they leave appealed It is not deemell necessary to set out more min-ably the allegations of flie bill, filithel than to say that no special gi.erands of ecluitalde inter l iositioli are appatently insisted iion, beyond that, that the complainants exhibited their claim to the admium-istrativ is soon after the rindition of the decree, ascertaining the lin hility of the I otestate, as it could be reasonably done aN1 that there were ample assets either in the hands of the adininistratrix, or of the heirs and chstrihritees, to satisfy this and all other demands that were against the estate. It cannot be that a demand, that was barred by the statute of non-claim against an estate, and regularly adjudged at law to he so, as this was, can be afterwards successfully prosecuted to recovery ill equity, either against the representative of the, estate, lir the hor or distributee, to whom assets may have descended, or been distributed. No one can doubt the power of the legislature tn eunet the bar arid iu its terms it cuts off "all demands not exhibited as
(i CASES IN TILE SUIREME COURT Bennett et al. vs. Dawson adx et al. [January recprired by the act, before the end of two years from the granting of the letters " It is insisted that the demand in question ought not to be considered as embraced in these wide terms, because it was not a subsisting one, but contingent and inchoate, until within five months next before the expiration of the term , of two years fixed by law for the exhibition of claims under penalty of being "forever barred," and that two years ought to be allowed from the time of its accrual. Let it be considered as granted, as to the first hianch of the proposition, still was it not a clear, legal, subsisting . denumd against the estate from, and after its accrual, and for five months thereafter, before the expiration of the two years 1 Aml why should such a demand be exempted from presentation for two years after its accrual, when the statute of non-claim runs against no demand from the day of its accrual, but against all demands from the day of the issuance of letters. It is true ,that so much of the opinion of the Court, in the ease of Walker vs. Byres, (14 Ark. R. 25:1 and :1191, as pronounced on the former page, and repeated on the latter, that not only demands subsisting at the time of th e death of the testator or intestate, whether matured or not, capable of being asserted in a Court of justice, whether of law or equity, must be exhibited within the two yea is ; but, also, all "coming into existance at any time after the death, and before the expiration of the two years" from an "inchoate and contingent condition," like dormant warranties, broken by eviction," were likewise embraced by the statute, was, in that case, an obiter dictum, as counsel now suggests; because the particular ease then before the Court was not one of the latter kind,: hut was one of the former. Nor was the Court insensible of the peril of going beyond the record, into the consideration of doctrines, not then to be directly ap-, plied; nevertheless, the uncertainty which then prevailed as to some of these matters, and the questions then directly involved, made this course inevitable, as appears from the concluding remarks of the Coint, which are as follows: "This first view of the ease at bar having made it necessary that we should examine the iloetrines discussed, in order to de-
OF THE STATE OF ARKANSAS. 337 Term, 1857] Bennett et al. vs. Dawson adx. et al_ termine the two points settled, we will rumark, before proceeding' to the next view, as they are questions of some importance, that we have examined them with care, and have not determined them until after considering their probable consequences. And in these, we see no probable evils at all to be weighed ag ainst the manifest good to be achieved by stimulating the speedy settlement of estates in accordance with the clear spirit of our administration system, so palpably manifest." And now, when a ease has arisen, involving that point, then but hypothetically considered, and we have heard argument, the conslusion then arrived at cannot but be fully approved. The questions of hardship, inconvenience and diligence, discussed by counsel in this case, can cut no figure in this, or any like ease, unless, as intimated in this ease when it was here before, on the law side of the Court, such matters were of a characti r to challenge the want of constitutionality in the operation of the non-claim statute, as applicable to a particular case, under the doctrines applied in the cases of Pope exr. vs. Ashley exr., 13 Ark. R. 262, and Riggs, Peabody & Co. vs. Martin, n Ark. R. 506_ Finding no error in the decree of the Court below, it will be off irmed. Eon E. H. EyGTJSII, not sitting.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.