#### Henry Fritz v. Wm. Fritz, Administrator of the Estate of B. Fritz, Appellant.

Statute of Limitations: pbobatb. The filing of a note as a claim 1 against- an estate, before the note is barred, prevents the running 2 of the statute and it is not material that notice of hearing upon 3- th,e claim is not given until the note has run more than ten years 4 after maturity. *Ashton v. Miles, 49*Iowa, 564, *questioned.*

*Appeal from Wapello District Court.*— -Hon. W. I. Babb, Judge.

Monday, December 17, 1894.

.Proceedings to establish a claim against an estate. From an order establishing and allowing the claim, the administrator *appeals.*

Affirmed.

*McElroy & Roberts*for appellant.

*J. J. Smith*and *A. C. Stech*for appellee.

Deemer, J.

The defendant is the administrator of the estate of B. Fritz, deceased. On the second day of November, 1891, the appellee filed in the office of the clerk of the District Court of Wapello county a claim against the estate for a balance alleged to be due on book account, in the sum of two hundred and thirty-six dollars and sixty-seven cents, and upon a note signed by Fritz, in the sum of one hundred and twenty-five dollars, dated January 1, 1882, due one day after date, and bearing interest at the rate of ten per cent from date. The administrator failed to allow the claim, and on June 29, 1898, plaintiff served upon defendant a notice of the proving of the claim, and that the same would come on for .bearing at-the following August term :of *28the District Court. The administrator admitted the claim as to the book account, and denied any indebtedness upon the n.pte, and further pleaded that the note claim was barred by the statute of limitations. The District Court allowed the claim in full, and the administrator appeals.

1 The sole question presented by this appeal relates to the bar of the statute of limitations. It will be observed that the claim was filed before the note was barred, but notice of the hearing thereof was not given until more than ten years after the maturity of the note. The single question then is, does the filing of the claim suspend the running of the statute,— was the 'filing of the claim the commencement of an action on.the note? The general statutes of limitation are as follows: Code, section 2529: “The following-actions may be brought within the times herein limited, respectively, after»their causes accrue, and not after: wards, except when otherwise specially declared: * **■*5. — Those founded on written contracts * * * * within ten years.” Section 2532 is as follows: “The. delivery of the original notice to the sheriff of thé proper county, with intent that it be served immediately, which intent shall be presumed unless the contrary appears, or the actual service of that notice by another person, is a commencement of the action.” The statutes with reference to claims against estates provide: Section 240-3: “Claims against the estate shali be clearly stated, sworn to and filed; and ten days’ notice of the hearing thereof, accompanied by a copy of the claim, shall ba served on one of the executors in the manner required for commencing ordinary proceedings, unless the same have been approved by the administrator, in which case they may be allowed by the clerk without said notice.” Section 2410: “All claims filed', not expressly.ndmitted in writing .signed.by,.the-execu*29tor, with the approbation of the court, shall be Considered as denied without any pleading on behalf of the estate.” Section 2411: “If a, claim filed against the estate is not so admitted by the executor the court may hear and allow the same or may submit it to a jury; and on such hearing, unless otherwise provided, all provisions of law applicable to an ordinary proceeding shall apply.” Other sections of the Oode make it the duty of the administrator, as soon as possessed of sufficient means, to pay, first, the charges of the last sickness and funeral of the deceased; next, the allowance made by the court to the widow, if any; and then other demands in the following order: (1) Debts entitled to preference under the laws, of the United States; (2) public rates and taxes; (3) claims filed within six months after first publication of notice; (4) all other debts; and (5) legacies.

On behalf of the appellant it is insisted that the filing of ¡the claim is not the commencement of the action; 2 that the proceeding is not commenced, within the meaning of the law, until notice, of the hearing of the claim has actually been served upon the administrator, or until it has been placed in the hands of the sheriff with intent that it be served immediately, as contemplated in section 2532, before quoted. While it is true, generally speaking, that an action is not commenced- in this state until actual service of original notice, and that, for the purpose of avoiding the running of the statute of limitations, it is not commenced until the original notice is placed in the hands of the sheriff for service, yet we think an action may otherwise be commenced. Thus, it has been held that, to all common intents and purposes, an action by attachment may "fairly be considered as begun when the petition is. filed. *Hargan v. Burch,*8 Iowa, 309; *Reed, v. Chubb,*9 Iowa, 178; *Elliott v.*Stevens, 10 Iowa, 418, Sov *30also, in the case of *Sweatt v. Faville,*23 Iowa, 321, which involved a construction of the statutes of limitation, it was held that the filing of the petition and the service of a writ of injunction, where the injunction was asked as an independent means of relief, and not auxiliary to other proceedings, was the commencement of the action, although the original notice was not served until after the time allowed for the commencement of the suit Turning, then, to the statute above quoted, with reference to the filing of claims against an estate, and looking to its provisions, we think it very clear that this action or proceeding was commenced when the claim was filed with the clerk, and that it was the duty of the administrator to take notice thereof from the time of its filing. The claim, if the administrator refused to allow it, could not be brought on for hearing ' without notice to the administrator unless he waived it. But the notice required to be given is not a notice 3 of the filing of the claim, but notice of the hearing. The Code nowhere requires notice to be given of the filing of claims, and the reason for this must be that as the probate court is always open, and the administrator is charged with certain duties with reference to the payment and adjustment of claims and the distribution .of assets, for the purpose of allowing claims the administrator is always in court,. and must take notice of all that are filed. In the case of *Noble v. Morrey,*19 Iowa, 509, it is expressly held “that the filing advises the administrator that a claim is made, and he must regulate his disbursements accordingly;” and in the case of *Smith v. McFadden,*56 Iowa, 482, 9 N. W. Rep. 350, it is held, in construing section 2408 of the Code: “All that is required on the part of the complainant is to make out the claim, verify and file it He is not bound to notify the administrator that he has done so. The latter must take notice oh all *31claims filed, and approve or allow the same, as he sees proper. * * * * If he fails to approve the claim, it is regarded as denied by the operation of the law, and thus an issue is formed. * * * * By filing the claim, it may be said, action on the part of the administrator is invoked, but clearly the court is not called upon to do anything. Whatever is done by the administrator, — that is, if he allows any part of the claim, — this may be satisfactory to the claimant; and it is not the policy of the law that litigation shall be commenced until opportunity has been afforded the representative of the estate to examine the claim, and allow it if he sees proper to do so, and thus save costs and expenses.” We have quotéd at some length from this opinion, because it seems to us to be decisive of the question involved. In the case of *Schriver v. Holderbaum,*75 Iowa, 33, 39 N. W. Rep. 125, the case of *Smith v. McFadden*was cited with approval, and it was also held that the court had complete jurisdiction of the parties (claimant and administrator), and that both were before the court from the time the claims were filed, until the formal approval thereof, although no notice of the hearing was given. See, also, *Wilson v. McElroy,*83 Iowa, 593, 50 N. W. Rep. 55; *Godes v. Hassen,*81 Iowa, 4 197, 46 N. W. Rep. 980; and *Phelps v. Greenbaum,*87 Iowa, 347, 54 N. W. Rep. 76. Counsel for appellant places great reliance upon the case of *Ashton v. Miles,*49 Iowa, 564. It is sufficient to say, with reference to that case, that, in so far as it is in conflict with the rules here announced, it has been practically overruled in the cases of *Smith v. McFadden*and *Phelps v. Greenbaum, supra.*We think the lower court correctly held that the filing of the claim was the commencement of the proceedings, that section. 2532 of the Code does not apply, and that the claim is not barred by the statute of *limitations.*— Affirmed.