The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-04-21
OPINION OF THE COURT, BY WHITING. !.

OPINION OF The COURT, BY WHITING, J,
| The plaintiff brought an action
against the defendants, executors IN
der the will OF G. TrousSeau, upon q
p-omissoYy note Of deceased. and pro
duced evidence which showed that the
claim was presented to the executors or
February %, 1895, and on February 70
l1SeS. was rejected by the defendants,
land on April q, 1895. the plaintiff be-
gan her action and summons issued
She alleges il her complaint that she
presented her claim duly verified 10 the
defendants or February 25, 1895. and
that on February 20. 1895, the defend
lantS rejected her claim and refused 10
pay il; but plaintiff does not allege
THAT she has brought her action with
in two months after such rejection .
The defendants in their answer deny
the truth of each and every allegation
in plaintiffs complaint, and give no.
tiee that among other defenseS they re-
~ on fraud, forgery. want Of conSidera-
ton. illegality and the statute Of limi-
tarions. and that suit was not brought
on plaintiffs claim within sixty days af-
ter the same was rejected and disallow-
cd by defendants.
II appeared at the trial that plaintiff
had brought her action on April %,
1895. and upon the close OF plaintiffs
case the defendants moved 20 dismiss
the complaint on the ground that plain
tiff had not brought her action within
the time prescribed by law, viz. within
ed by the executors.
The Court granted the motion. 10
which plaintiff excepted.
The statute. Acts Of 1868 as amended
by Chapter 10, Laws OF 1876. Comp.
Laws. page 397, provides for no
tiee 10 creditors and for the filing
OF, claims against estates of deceased
persons, and Section 3 provides, If a
claim be rejected by the executor or
administrator 2 suit must be brought
upon II against the executor or admin
istrator within tIo months after such
rejection or within two months after
the same shall become due. or ii will be
forever barred
Was the day. April 9th, within two
months after February 10Th. the day of
rejection OF plaintiffs claim?
The word month shall be construed
10 mean 2 calendar month unless 9th
erwise expressed. Chapter 3. Civil
Code. OF the construction of laws. Sec. z
Is. Civil Code.
In Bowler =. Walker. Haw. sos. the
Court held that writ issued August
.. 1888, judgment having been rem
dered February 25, 1898, is issued
within six months from the rendition
of judgment" as required by statute.
The Court followed the general rule
that in computing the time within .
which an act is to be done. the first day I
shall be excluded and the last included. /
In re Election Law, S Haw. COZ; Sec. [
1166, Civil Code.
By excluding the day of rejection of
the claim, February 26th, the first
month would begin February 9th and
end March 18th, and the second month .
begin March 9th and end April 18th:
accordingly the action brought on April 4
9th was not commenced within the
time prescribed by law, but was one day
too late
These statutes OF non-claim are fire. 4
quently called special statutes of limi-
tauon- Statutes of this character may
be considered not as statutes of linn I
itation but rather as special regulations 4
Of probate law which impose the loss of .
the claim If the party fail to sue on il
within the time prescribed.
The executor or administrator cannot ]
waive this statutory regulation. The
statute is imperative and must be fol- 4
lowed By the plaintiff II is not neces-
sary for defendants 10 specially plead 4
this statute, but they can take adTan-
tage Of it il the evidence or proofs !
show that plaintiff has not complied 1
with the provisions OF the statute.
The rule of the Circuit Courts Rule
~ provides that in personal actions.
the statute OF liIzitations shall be spe-
cialy pleaded" This has generally
been regarded as applicable to Sec. 1896.
and following sections, Civil Code, of
the time Of commencing personal ac-
lions Stat Of Linn of Personal Actions
and not 10 this Act Of 1868 Stat. of
or Special limitations re-
ating TO the presentation and rejection
of claims against deceased persons es-
.ates-
In Shaw. V. Kahala, Haw 36T, the
Court held that this special statute of
limitations in the Act of June %, 1868.
Uniting the time within which to bring
'uits against administrators on reject
ID claims was not required to be spe-
tally pleaded
In the case al bar plaintiff had no
surprise, and could have none. for al
hough the answer Of defendants does
hot technically word for word set up
notice that they rely on the statute Of