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

The complaint shows, among other
things, that c. c. Powning died at Rene
Washoe County, Nevada, on the 4th day
of October, 1898. leaving an estate in said
county; that on 9th day of December,
1898, Clara A. Powning was duly APP
pointed administrative of said estate;
that on the 18th day of December, 1888,
the plaintiff loaned to c. c. Powning, at
his request, certificate No. 713, for two
hundred and fifty shares Of the capital
stock of the Anglo-Nevada Assurance
Company, of the value of $lS,750.00 to be
used and which was used by Powning as
collateral security for the payment of his
certain promissory note, executed De-
cember 18th, 1888, te the Bank of Cali
fornia at San Francisco, for the sum Of
$lS,35O.OO; that Powning agreed to pay
plaintiff said sum for said stock or with
in reasonable time to return said stock;
that subsequently,, on the I'd day of Jan
uary, 1889, said c. c. Pownng executed
and delivered to plaintiff an instrument
in writing in words and figures follow
ing, tO-wit:
Reno, Nevada. January >. 1889.
This is to certify that on the 18th day
of December, 1883, I received from John
p. jones, cert. No. 7l3. Anglo-Neva6ia AS
surance Co. of San Francisco for $50
shares, to be used and was SO used by nae
as collateral security for certain pro-
missOry note given by me on said date
to the Bank of California for the sum of
SIS, $50, and should | be unable to meet
said note by reason Of accident or death
or return of said stock to said John p.
sJones, it is my wish and desire that so
much of my real and personal property
as may be sufficient to cover this hon
cradle obligation shall be sold to fully
and completely reimburse said John Z
Jones against any loss on account Of his
testimonial of friendship. And l SO de-
cree to all whom it may concern.
c. c. Powning.
Witness: Clara A. Powning."
1t is also shown by the complaint that
said Bank of California in the year 1890
sold said stock so pledged by said c. c.
Pewning as security aforesaid for the
sum Of 81 ,90e.37; that said c. c. Powning
has never returned said stock to the
plaintiff, or any part thereof and has
never paid said sum of SlS.750.00, or any
part thereof. and has never paid any in
terest thereon
1t also appears that on the 2Sth day OF
January, 1898, the plaintiff filed, with the
Clerk Of the District Court, his claim
against the deceased, setting forth said
instrument, and claiming that there was
due thereon the principal sum of SIS,
10000 and legal interest on the same il
the sum of Sl3,I25.0O; that thereafter The
said administrators allowed said claim
to the full amount, s3l,S75.0O, and tha
the Judge of the District Court rejected
the Whole of said claim.
The defendant demurrer to the IA
plant on two grounds, the second groun6
was: THAT it appears upon the face O.
said amended complaint that the caus.
of action set forth therein accrued Mort
than six years before the death of c.
Powning, and that said claim when pre-
seated for allowance as claim agains
said estate was and now is barred by the
statute of limitatisn.'
The court sustained the demurrer
The plaintiff elected to stand on his com
plant aud SO stated in open court. Til
court gave judgment to the effect tina
the plaintiff take nothing by his sait
complaint and t.iat the defendant recove
of him her costs taxed at $l.SO. Judg
ment was entered accordingly. This ap
peal is taken from said judgment an
the order sustai ming said demurrer.
Counsel for appellant contends tina
when a claim is presented to an admir-
istratOr for allowance, although barre
by the statute Of limitation at the time {
the death Of the decedent, the admin!
traitor may waive the statute, allow til
claim; and it becomes valid clair
against the estate. He cites several al
thorities to support this contention X,
spondents counsel cites several autho
tiles holding to the contrary. The weigl
of authority, in our opinion, is again
the appellants contention, besides IL
mandatory provisions of section 1l3