#### Gardner, Respondent, vs. Young’s Estate, Appellant.

*April 13*

May *2, 1916.*

*Guardian and ward: Claims, how tarred: Witnesses: Competency: Transactions with person since deceased: Waiver of objection.*

1. Sec. 39955, Stats., is the only statute providing for barring claims against persons under guardianship; and where that section was not complied with in that no petition was filed and no order of the county court fixed a time and place for the examination and adjustment of claims or fixed a time after which claims, if not presented, should be barred, claims were not barred otherwise than by the ordinary statutes of limitation.

2. Permitting a claimant to testify as to personal services rendered by her to a decedent, upon which her claim against his estate is based, will not be held error where no proper objection was seasonably made.

Appeal from a judgment of tlie circuit court for Trem-pealeau county: James O’Heill, Judge.

*Affirmed.*

A claim was filed by plaintiff and respondent against tbe estate of Dr. William M. Young, deceased, for services alleged to have been performed by ber from October 1, 1902, to tbe 5tb day of June, 1909, tbe date of Dr. Young’s death.

Dr. Young during tbe latter part of bis life owned tbe. Commercial Hotel in G-alesville, Wisconsin, where be lived, bad bis office and sleeping room. In 1898 be leased this hotel to tbe husband of plaintiff, the lease providing, among other things, that Dr. Young should continue to live in tbe Commercial Hotel and have bis offices there. Tbe lease was for five years, ending in May, 1903, when a new lease was made running for three years. During tbe period from date of tbe first lease, June 1, 1898, to tbe date of tbe death of Dr. Young, June 5, 1909, be continued to board and keep bis office and sleeping room in said hotel.

Tbe claim filed was for special services rendered by plaintiff, *Annie*Gardner, for Dr. Young, deceased.

In tbe county court tbe claim of plaintiff was allowed at *242$4,000, and upon appeal to the circuit court was reduced to $3,120 Avith interest. The court below made the following findings:

“That said Wm. M. Young, deceased, was during his lifetime, and on or about the 3d day of March, 1908, duly declared an incompetent by the county court of said county of Trempealeau and a guardian of his person and estate duly appointed by said county court, who duly qualified therefor and entered upon the duties of his office, and from that time until the death of said Wm. M. Young performed the duties and functions of such guardian.

“That for many years prior thereto and until the date of his death the said Wm. M. Young, which occurred on the 5th day of June, 1909, was in poor health, and during all the time included within the findings herein was in need of personal care, nursing, and attention, and that he was a single man and had no near relatives under legal obligations to furnish to him such care, nursing, and attention.

“That during the lifetime of said Wm. M. Young and within the six years prior to his death the said *Annie Gardner*performed labor and services, consisting of personal care, nursing, and attention, and which said personal care, nursing, and attention were necessary and proper for his safety and comfort ; that such services were of a character suitable to his station in life and that he was amply able to pay for them, and were of the reasonable rvalue of ten ($10) per week for a period of six years prior to his death.

“That the said *Annie Gardner*has never received any consideration therefor from the said Wm. M. Young, or from his estate, or from any personal representative, guardian, or any other person for or on behalf of the said Wm. M. Young, and the whole thereof is due and owing to the said *Annie Gardner.*

“That on the 24th day of November, 1913, the said plaintiff duly filed in the county court of the said county of Trem-pealeau her duly verified claim therefor pursuant to notice to creditors given in the matter of the estate of Wm. M. Young, deceased.

“That during the period of the guardianship hereinbefore mentioned, no notice to creditors was ever given as required by law, and that the said claim is not barred by any statute or law of this state relating to the filing, allowance, or settlement of accounts of persons under disability.

*243“That said services’ were not performed by tbe said plaintiff by virtue of any contract, lease, or agreement made between tbe said Wm. M. Young and tbe husband of tbe said *Annie Gardner,*nor by virtue of any oral understanding or agreement between tbem, and that tbe character of such services were not such as are embraced within tbe terms or meaning of any lease or contract between tbe said Wm. M. Young and tbe husband of said *Annie Gardner*as mentioned in tbe answer of tbe administrators filed herein.

“That no part of tbe claim hereinafter allowed is barred by tbe statute of limitation.

“That tbe said *Annie Gardner,*during the- time of the said performances of such labor and services, was a married woman and tbe wife of one Edward Gardner.

“That all of such services so rendered were performed by tbe said *Annie Gardner*for and on her own behalf, and that at the time of the performances of tbe same she expected to be compensated therefor and to receive and have such compensation as her own property and estate, and that said husband, Edward Gardner, bad full knowledge thereof and consented thereto.

“That such services so rendered were not within tbe scope of tbe ordinary duties of housewife, nor constituted any part of tbe duties that tbe said *Annie Gardner*owed to her husband in tbe business in which be was engaged, and that tbe compensation herein allowed for such services is tbe individual earnings of said *Annie Gardner*accruing from labor performed in her own behalf and is her separate property.” '

Tbe court concluded “That tbe said plaintiff, *Annie Gardner,*is entitled to judgment herein against tbe defendant, the estate of Wm. M. Young, deceased, in tbe sum of three thousand one hundred twenty ($3,120) dollars, together with interest thereon from tbe 24th day of November, 1913, at tbe rate of six per cent, per annum, in all tbe sum of three thousand four hundred sixty and 80-100 ($3,460.80) dollars, together with the costs and disbursements of this action, to be hereafter taxed.”

Judgment was entered accordingly, from which this appeal was taken.

*Ole J. Eg gum,*for the appellant.

*244For the respondent there was a brief by *B. 8. Gowie*and *A. T.*Twesme, attorneys, and *Edward*Lees, of counsel, and oral argument by *Mr. Lees*and *Mr. Gowie.*

EjsewiN, J.

It is contended that the court below erred in bolding that the claim of respondent filed against the estate of Dr. Wm. M. Young was not barred by proceedings in guardianship matter had in the county court.

On the 14th day of March, 1908, Dr. Young was declared an incompetent and one E. E. Clark, of Galesville, Wisconsin, was appointed general guardian of said Young and continued as such guardian until the death of Dr. Young, which occurred about a year thereafter.

The claim filed covers the period from 1902 to thb time of the death of Dr. Young in 1909, but it is conceded that the portion of the claim which accrued more than sis years before the death of Dr. Young is barred by the statutes of limitation, and the court below so held and included no item of the claim which accrued prior to six years before Dr. Young’s death in the allowance made to the respondent.

It is insisted by counsel for appellant that all such parts of the claim bearing date prior to March 14, 1908, are barred by a notice to creditors and proceedings relative to the proof of claims against wards and deceased persons. The infirmity in this contention is that no proceeding in compliance with the statute for barring claims against the estate of Dr. Young was had in the guardianship proceeding. Sec. 39956, Stats., is the only statute providing for barring claims in guardianship proceedings, and this statute provides for commencement of the proceedings by filing a petition, and directs that when a proper petition has been filed the’ county court shall make an order fixing time.and place for the examination and adjustment of claims against the ward, and that if claims be not presented accordingly they shall be barred. This section further provides that after the order has been made no suit can be maintained against the ward, etc. This statute was *245not complied with in the instant case, and the question arises whether the claim could be otherwise barred. It is insisted on the part of the appellant that it could, under certain provisions of the statute referred to by appellant and which will be considered. Sec. 3982 provides in substance that guardians appointed shall pay the debts of the ward, and that “unless special provision be made all proceedings for the presentation, allowance and adjustment of claims and demands against persons under guardianship shall be had and made as provided in these statutes relating to the estates of decedents.” This section does not bar claims not filed. The provision for bar is contained in sec. 3844, which relates to claims against deceased persons and not claims against wards. It will be seen that sec. 3982 refers to procedure only in regard to filing claims. The statute of limitation as to claims against deceased pérsons is sec. 3844, and makes no reference to claims against persons under guardianship. Sec. *3995b*is the only statute providing for bar of claims against persons under guardianship, and this statute plainly has not been complied with in the instant case; hence the claim was not barred. The proceeding in county court did not comply with sec. 3995b. No petition was filed; the order of the county court did not fix a time and place for the examination and adjustment of claims against the ward, nor fix a time within which claims must be presented or be thereafter barred. The order in the instant ease does not limit the time within which claims must be presented, or provide that claims not presented at the time and place fixed in the order shall be thereafter barred, therefore does not comply with the statute. *Britt v. Estate of*Ide, 75 Wis. 113, 43 N. W. 559.

Sec. 3838, Stats., relates to claims against deceased persons; sec. 3840 provides for fixing time for presenting claims in case of granting letters of administration; sec. 3840m provides for order of publication under see. 3840 when publication has not been made; and sec. 4050 provides that when the court orders notice published it shall be sufficient if a brief *246statement of tbe matter to be beard, sufficient to fairly inform tbe interested parties of tbe nature of tbe proposed proceeding and tbe estate involved, be published. None of these sections affect tbe questions in tbe instant case.

Error is assigned in tbe admission of testimony of tbe respondent, *Annie Gardner,*in relation to tbe services performed by her for tbe deceased, Dr. Young. It is claimed that such testimony was not admissible under sec. 4069, Stats. Our examination of tbe record has failed to disclose any proper objection to tbe evidence. But even if proper objection were made, we think tbe evidence was admissible. *Estate of Kessler,*87 Wis. 660, 59 N. W. 129.

All other material propositions discussed by counsel for appellant involve questions of fact.

Tbe findings set out in tbe statement of facts are well «supported by tbe evidence, and support tbe judgment. It is unnecessary to extend this opinion by a discussion of the evidence. We find no error in tbe record.

*By the Court.*— Tbe judgment is affirmed.