Wooden against Cowles' executor, 11 Conn. 292

Church, J. 1. The first and most important question, and upon which the case chiefly depended, in the court below, arises, as well upon the motion in arrest of judgment, as upon the first objection taken to the evidence, as it appears upon the motion for a new trial. And it is this ; whether the order of the court of probate, limiting the time for the creditors of the estate of Levi Cowles, deceased, to bring in their claims against his estate, to six months from the time of making the order, rather than six months from the time of its publication, was a legal order ?

Or, what is in effect the same, whether a claim exhibited within six months from the time of the publication of an order of notice, although beyond six months from its date and the commencement of its operation, bo within legal time ? The correct determination of this question depends upon the proper construction of the 17th

section of the “ Act for the settlement of estates, testate, intestate and insolvent.” The order of the court of probate, in this case, does not fix the time of the commencement of its own operation ; it must be taken, therefore, that the time from which the six months limited was to commence running, was the day of the date of the order. The court might, indeed, have limited six months from some future, reasonable time, and have directed the publication of notice during the intermediate time; and such a course may oftentimes be very proper; but it is not required by law. The

section of the statute under consideration, does not provide, that creditors shall be entitled to six months’ notice to bring in their claims against an estate. The object of fixing and limiting some certain and definite periods, within which creditors should make known and exhibit their claims against the estates of deceased persons, was, that such estates might be set-tied within reasonable time, of which periods creditors should have reasonable notice.

Courts of probate, after determining the time in which the claims of creditors shall be presented, direct the manner in which notice shall be given to the creditors of such time ; and this is all the law requires of such court, in this particular. It does not require of the judge of probate, that he direct six months, or any other length of notice, to be given. The

section of the statute, upon which the question now under consideration arises, was enacted first, in 1782 ; since which time, it is believed, that the general, if not universal practice under it, has been in conformity with the foregoing views, and such as the court of probate, in the present case, has adopted; which fact ought to go far to fix and settle the construction of the law in question, unless evils may be foreseen to result from it.

A different construction from the one now given to this statute, and such an one as the plaintiff urges, would, as we believe, be attended with practical results extremely embarrassing. Suppose, as the plaintiff claims, the time of limitation begins to run from the time of the publication of the order of notice ; how are creditors to know when such order was published, and when the limitation expires? This is an extraneous fact, known to none certainly, but the executor or administrator.

A creditor may read the order, as published in a newspaper ; but whether it be upon its first or last insertion in such paper, he cannot know. He may see and read the order, as posted upon the sign-post; but how long it has been there, he cannot tell. It is obvious, therefore, that if the limitation begins to run from the time of the publication of the order of notice, creditors can never know when it will expire. The plaintiff insisted, that the language of the proviso in the same

section of the statute, sanctioned his claim. It is thus : “ Provided, that any creditors, not inhabitants of this state, shall have liberty to exhibit their claims against any estate, which has not been represented insolvent, within two years after publication of the notice aforesaid, *c.” We think the plaintiff derives no aid from this proviso, but it corroborates the opinion, which we have already expressed. It is conversant with a different class of creditors, such as reside out of the state, and ore not. in legal consideration, parties to the proceedings before the court of probate.

Such creditors have no other means of becoming acquainted with the orders of courts of probate» than the publication of them affords. If the same rule had been intended for these different. If the same rule had bably the same language would have been employed.

On this point in the case, therefore, we think the law is, that it is the duty only of the court of probate to limit the time for creditors to bring in their claims, not exceeding eighteen nor less than six months, and to direct the executors or administrators to give notice of the time so limited, in the manner prescribed by law, and as such court may further direct; and then, if such notice be given in a reasonable time, such creditors as shall neglect to exhibit their claims within the time limited, shall be debarred of their demands.

This order of the court of probate, therefore, was valid ; and the evidence offered to prove an exhibition of the plaintiff's claim within six months from the time of publication of the order, but beyond six months from its date, was properly excluded. 2. A second question, presented by the motion for a new trial, is, whether the evidence of the defendant’s declaration, made at the store of S. M. Mitchell, that the paper he then had, and which he was about to place upon the public sign-post, was a notice of the order of the court of probate upon the estate of Levi Cowles, was admissible ?

The question of fact before the jury, was, whether the defendant had complied with the order of the court of probate within a reasonable time. He claimed, that he posted the notice of the probate order upon the public sign-post in Plymouth, on the day of its date, and while on his return home from said court of probate.

It was admitted, that on the 10th day of December, when said order bore date, the defendant, together with one Atwater, his surety in the probate bond, were together, at the office of the judge of probate in Waterbury, and departed together, on their return home ; and it was proved, that the written notice of said order was prepared, by the judge of probate, and delivered to the defendant, for the purpose of being placed upon said sign-post.

It was also proved, that the defendant, in company with the said Atwater, came to the store of Mitchell, as early as the middle of the month of December; that he had in his hands a written paper, called for nails, for the purpose of affixing said paper upon the sign-post, and then said, that the paper was the probate notice aforesaid ; and that he proceeded to nail it upon the post.

This evidence of what the defendant said, while in he act of enquiring for the nails and posting the paper upon the sign-post, was neither offered nor admitted to prove the contents of the paper, but to show the character of the acts in which the defendant was then engaged. This declaration was certainly a part of the res ges-tee, a part of the act of posting up the paper upon the public sign-post, and was material as conducing to show, that this paper was the notice drawn up by the judge of probate, and was placed upon the sign-post, on the said 10th day of December, as the defendant claimed.

This evidence did not derive its credibility, and thus become evidence, so much by reason of any credit due to the party making it, as from the accompanying and surrounding facts, entirely consistent with it, and corroborating its truth. It became necessary to enquire into the nature of the act in which the defendant was engaged, and of his purpose in performing it. His own declaration, made at the time, without premeditation, and free from suspicion, connected with and corroborated by the act itself, was the best and only evidence, by which this could be proved.

This declaration was not the mere narrative or assertion of a fact, by an interested party, but it was a material and characteristic part of the act done, and, as such, was proper and important evidence. 2 Evans' Poth, 247. 1 Phil. Ev. 202. 1 Stark. Ev. 47. Hoare v. Allen, 3 Esp. Rep. 276. Aveson v. Kinnaird, 6 East, 193. Fellowes v. Williamson, 1 Moo. & Mal. 306, (22 Serg. & Lowb. 316.) We advise, that the motion in arrest of judgment be overruled, and the motion for a new trial denied. In this opinion the other Judges concurred. Motion in arrest overruled. New trial not to be granted.