The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-04-18

enforce rejected Claims, Is special
statute OF limitation often known as
statute OF non-claim.' and need not be
specially pleaded.
The executor or administer cannot waive
the provisions of this statute.
OPINION OF THE COURT, BY WHITING. J.
The plaintiff brought an action
against the defendants, executors I'M
der the will of G. Trousseau, upon a
pTOmissOry note of deceased, and pro-
duced evidence which showed that the
claim was presented TO the executors on
February 25. 1895, and on February 20,
1895, was rejected by the defendants,
and on April %. 1895. the plaintiff be-
gan her action and summons issued.
She alleges in her complaint that she
presented her claim duly verified to the
defendants on February %. 1895, and
that on February 26. 1895, the defend
ants rejected her claim and refused to
pay il; but plaintiff does not allege
that she has brought her action with
il two months after such rejection. -
The defendants in their answer deny
the truth of each and every allegation
in plaintiffs complaint, and give no.
tice that among other defenses they re-
II on fraud, forgery, want of cOnsidera-
ton, illegality and the statute of limi-
tations, and that suit was not brought
on plaintiffs claim within sixty days af-
ter the same was rejected and disaIlow-
ed by defendants.
II appeared at the trial that plaintiff
had brought her action on April 81
1895. and upon the close OF plaintiff s
case the defendants moved TO dismiss
the complaint on the ground that plain
tiff had not brought her action within
the time prescribed by law, viz. within
two months after the claim was reject
ed by the executors-4
The Court granted the motion, to
which plaintiff excepted.
The statute, Acts of 1868 as amended
by Chapter 10, Laws of 1876, Comp.
Laws, page 397, provides for no.
tice TO creditors and for the filing
of claims against estates of deceased
persons. and Section provides, If
claim be rejected by the executor or
administrator a suit must be brought
upon il against the executor or admin
iStrator within two months after such
rejection or within two months after
the same shall become due, or il Will be
forever barred
a L.
months after February 26th. the day of
rejection OF plaintiffs claim?
The word month shall be construed
20 mean a calendar month unless 9TH
erwise expressed. Chapter 8, Civil
Code. of the construction of laws Sec
5. Civil Code
In Bowler Y. Walker. Haw. 306, the
Court held that a writ issued August
-. 1898 judgment having been rem
iered February %. 1898. is issued
within six months from the rendition
u judgment" as required by statute
The Court followed the general rule
that in computing the time within
which an act is 10 be done, the first day
shall be excluded and the last included.
IN re Election Law, s Haw SOP; Sec
1866. Civil Code.
By excluding the day Of rejection of
the claim, February 26th, the first
month would begin February 9th and
end March 26th, and the second month
begin March 9th and end April 26th 4;
accordingly the action brought on April
9th was not commenced within the
time prescribed by law, but was one day
700 late
These statutes of non-claim are fire.
uuentIy called special statutes OF limi-
IatiOn. Statutes of this character may
be considered not as statutes OF lin
itatiOn but rather as special regulations
OF probate Iaw which impose the loss OF
the claim if the party fail 10 sue on it
within the time prescribed.
The executor or administrator cannot
waive this statutory regulation. The
statute is imperative and must be fol-
lowed by the plaintiff. II is not neces-
sary for defendants TO specially plead
this statute, but they can take adTan-
tage OF it If the evidence or proofs
show that plaintiff has not complied
with the provisions OF the statute
The rule OF the Circuit Courts Rule
Il provides that in personal actions,
the statute Of limitations shall be spe-
cfaHy pleaded" This has generally
been regarded as applicable 70 Sec 1895.
and following sections, Civil Code, Of
the time OF commencing personal &C
tions (Stat. OF Lin. Of Personal Actions)
and not 70 this ACT OF 1858 lStat- OF
Non-CIaim or Special Limitations re-
Iating 70 the presentation and rejection
OF claims against deceased persons es-
taLes
In Shaw. Y. KahaIa, 3 Haw. 367, the
Court held that this special statute OF
limitations IN the ACT OF June ., 1853
limiting the time within which 70 bring
suits against administrators on reject
Cd claims was not required 70 be spe-
ciaIIy pleaded.
II the case at bar plaintiff had no
surprise, and could have none, for al
though the answer OF defendants does
not technically word for word set up
notice that they rely on the statute OF
non-cIaim- as they do not use the words