Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-04-19

the Probate Act, Sec. 1898, Compiled
Laws, settled the question against the
appellant, to wit: mo claim shall be
allowed by the executor or administrator
or the District Judge which is barred by
the statute of limitation at the time of
The death Of The person whose estate is
being administered
The second contention for appellant is
that the statute of limitation did not
begin to run against said claim till the
death of c. c. Powning, and was not a
bar, while it is the contention for re-
spondent that the statute began to run
against the claim in 1850, at tie time said
stock was sold by the bank.
Counsel for appellant says: ut is sub
mitted that the words and should I be
unable to meet said note by reason of
accident or death, or return Of said stock
to said John p. Jones, make the promise
conditional promise.and attach the con-
dition to the time when anyone can de-
termine positively when the statute
would begin to run against said promise
to pay, because the breach OF the con-
tract did not occur until the accident or
death eccured which prevented the
promisor from paying said note. or re-
turn Of said stock.''
We may not fully comprehend the
above contention, but as we understand
it, it is, that there was no breach of the
contract by c. G, Powning till his death,
that by reason Of his death he was pre-
vented from paying said note and from
returning said stock, and then at his
dea h the right of action accrued to the
plaintiff and not before.
This contention we think is not ten
able. The complaint shows that when
Powning borrowed the stock he agreed
to pay Jones therefore, $ls.750O0, or re-
turn the stock within reasonable time
About three weeks thereafter, on the 2nd
day of January, 1889, he executed said
instrument. This evidently was some
time before the maturity of his said prom
isssry note. BY this instrument he ex-
pressed desire that sufficient Of his
property should be sold to pay jones
for said stock in case he should he I'M
able to meet said nots by reason of acct
dent or death or to return said stock.
Evidently death did not prevent him
from paying said note for his death did
not occur until more than six years after
his default in paying the same. Ii he
were prevented by accident from paying
the nSte the accident occurred more than
six years before his death. His breach
Of contract occurred upon his failure ''to
meet said note,' and when he let said
stock be sold as said collateral security
instead of returning it to Jones. and
taereupon Jones right of action accrued
had any value except as a written ac-
knowled cement of Powning that he had
received said stock as loan to be used
by him as collateral security for the
payment of his said promisory note
and his liability for its value if he per
mitted it to be sold by the bank or other
wise failed to return it.
The plaintiffs claim against the de
ceased was barred at Pownings deati
by the statute of limitations, and SalC
section of the Probate Act prohibits it:
allowance by the Administrative and til,
District Judge,
(MOuillerat's Estate IA Mont. 245D
The Judgment and order appealed from
are, therefore, affirmed.
We concur:
Massey J.
Belknap. }.
Filed April 18th, 1909.
EUGENE HOWELL.
Secretary of State and EX-cflicio Clerl
of the Supreme Court.
Filed with printer for publication
} April II, 1890.
EUGENE HOWELL.