WILLIAM BERGER, Appellant, v. MAURICE O'HEARN, as Administrator, etc., Respondent, 41 Cal. 2d 729

EDMONDS, J. William Berger, assertedly a creditor of tbe estate of V. B. McMahan, brought this action after his claim had been rejected. The administrator’s demurrer to the complaint was sustained without leave to amend. The question presented for decision upon Berger’s appeal from the judgment thereafter entered concerns the applicability of a general statute of limitations. According to Berger’s complaint, in 1945 McMahan became indebted to him upon an account stated and suit was commenced to recover the amount of the debt. That action since has been dismissed for lack of prosecution.

McMahan died in 1947, and letters of administration were issued to Maurice O’Hearn. In February, 1948, within the prescribed statutory time, Berger presented a claim against the estate, based upon the pending suit. No further action in regard to the claim was taken by either party until more than three years later. Berger was then given formal written notice that it had been rejected and shortly afterward he filed the present action. In support of the demurrer, the administrator asserts that the complaint, on its face, shows the bar of the statute of limitations.

The period of limitation applicable to the claimed indebtedness is four years, commencing at the time the account was stated. (Code Civ. Proc., § 337[2].) Unaffected by the intervening death of McMahan, the final date upon which Berger could commence an action upon the debt would have been November 13, 1949. As a general rule, in the absence of a specific statute to the contrary, the intervening death of an obligor does not toll a general statute of limitations upon an accrued cause of action. (See Tynan v. Walker, 35 Cal. 634, 638 [95 Am.

Dec. 152]; Wood, Limitations [4th ed.] §6; 34 Am.Jur., Limitation of Actions, § 212, p. 170.) It has been recognized, however, that such a rule often may result in hardship to creditors whose right of action might expire between the debtor’s death and the commencement of administration of the estate. Accordingly, in many states statutes have been enacted which extend the limitation period so as to give the creditor an opportunity to bring an action against the personal representative. (See note, 174 A.L.R. 1423.)

Section 353 of the Code of Civil Procedure provides: “If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his representatives, after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.” In effect, this

section gives a claimant a period of grace of one year from the issuance of letters in any case in which the general statute of limitations would have expired before the end of such period. The administrator correctly contends, however, that

section 353 does not aid Berger because the time fixed by the general statute of limitation did not expire until more than one year after the death of McMahan. The provision is applicable only when necessary to extend the general statute of limitations and cannot be used to curtail it. (Lowell v. Kier, 50 Cal. 646, 648; Harris v. Mount Washington Co., 55 Cal.App. 144, 146 [202 P. 903].) Berger takes the position that

section 714 of the Probate Code also may operate to extend the general statute of limitations. Uniformly, however, the decisions of this state have held that

section 353 of the Code of Civil Procedure is the sole provision affecting the period of limitation upon a cause of action in the event of a disability resulting from the death of the person liable.

Section 714 and similar provisions of the Probate Code are concerned strictly with matters of probate procedure. (Bank of America v. Thomas, 7 Cal.2d 154, 156 [59 P.2d 990] ; Barclay v. Blackinton, 127 Cal. 189, 193-194 [59 P. 834] ; McMillan v. Hayward, 94 Cal. 357, 361 [29 P. 774] ; Dodson v. Greuner, 28 Cal.App.2d 418, 421-422 [82 P.2d 741] ; see Scott Stamp & Coin Co. v. Leake, 9 Cal.App. 511, 515 [99 P. 731].) In Barclay v. Blackinton, supra, the decision was based upon facts identical in all material respects with those shown by the present record. It was contended that

section 714 of the Probate Code (formerly Code Civ. Proc., § 1498) increased the time for suing upon a claim to three months after its rejection. After a review of the authorities in other jurisdictions, the court pointed to the prevailing rule that general statutes of limitation, and special or “nonclaim” statutes similar to

section 1498, serve different functions and operate independently of each other. (Citing 2 Woerner’s American Law of Administration, §400; see also ibid. [3d ed.] §400, p. 1320.) A nonclaim statute “may shorten but cannot be held to lengthen the general statute of limitations.” (P. 193; accord Gray Realty Co. v. Robinson, 111 Utah 521 [184 P.2d 237] ; Malone v. Averill, 166 Iowa 78 [147 N.W. 135].) Relying upon Estate of Caravas, 40 Cal.2d 33 [250 P.2d 593], Berger argues that the statute of limitations was tolled during the period in which the claim was not acted upon by the administrator. Apparently his argument is based Upon

section 356 of the Code of Civil Procedure, which provides: “When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action. ’ ’ In the Caravas case, a nonresident alien, as heir of her son’s estate, petitioned to recover certain property which had been distributed to the state treasurer pursuant to

section 1027 of the Probate Code. The trial court denied the petition on the ground that the action was filed more than five years after the distribution of the estate and thus was barred by

section 1026 of the Probate Code. This court reversed the judgment. It was held that during a substantial part of the five-year period the country of the petitioner’s resident was occupied by an enemy of the United States and, by the Trading With the Enemy Act (50 U.S.C.A. Appendix § 2), she was disabled from instituting a proceeding to enforce her rights in the estate. Accordingly under sections 354 and 356 of the Code of Civil Procedure, the period of disablement was excluded from the time fixed by the limitation provision of

section 1026. No such disablement appears in the present case. Berger had more than one year after letters of administration were issued to O’Hearn in which to enforce his claim. He could have presented his claim at any time after letters were issued, regardless of whether notice to creditors had been published (Janin v. Browne, 59 Cal. 37, 43), and brought his action after 10 days from the date his claim was presented. (Prob. Code, §712; San Francisco Bank v. St. Clair, 47 Cal.App.2d 194, 199-200 [117 P.2d 703] ; Ratterree Land Co. v. Security-First Nat.

Bank, 26 Cal.App.2d 652, 657 [80 P.2d 102].) Although during the 10-day period before an action could be commenced the general statute of limitations would have been suspended (Nally v. McDonald, 66 Cal. 530, 532 [6 P. 390]), Berger’s complaint was filed more than one year and a half after the statute had run. Berger’s final contention is that the filing of a claim with the probate court itself amounted to the commencement of an action within the meaning of the statute of limitations. However,

section 350 of the Code of Civil Procedure expressly states that “[a]n action is commenced, within the meaning of this title, when the complaint is filed.” Beckett v. Selover, 7 Cal. 215, 241 [68 Am.Dec. 237], was decided prior to the enactment of

section 350, and the contrary dictum in that decision no longer is correct. (See Maurer v. King, 127 Cal. 114, 117 [59 P. 290] ; Barclay v. Blackinton, supra, p. 194; Estate of Garnet, 126 Cal.App. 344, 346 [14 P.2d 572].) The judgment is affirmed. Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.