Page:Harvard Law Review Volume 32.djvu/368

332 332 HARVARD LAW REVIEW the statute is interpreted to mean that the claim is barred also against the legatees or distributees.*"^ In some of these states it is expressly stated that the creditor is not barred if no notice was given by the personal representative, or if the creditor had no notice because he was out of the state .^^ In other of these states it will be seen that the construction of the statutes does not bar proceedings against beneficiaries who have been partially or wholly paid. In Connecticut/"^ Missouri ^°^ and North Carolina*"^ the statute of non-claim runs from the maturity of the obligation. II With these preliminary observations on the necessity of pre- sentment one may examine the nature of the obligation of a legatee, distributee, or creditor to refimd for the benefit of other legatees, distributees, or creditors payments received. Refunding by a bene- ficiary when creditors have been overlooked may be had at the suit of the personal representative. After conflicting dicta in the lat- ter part of the seventeenth century"" it was squarely held in Davis v. Davis,^^^ " that an executor may bring a biU against a legatee to refund a legacy voluntarily paid, as well as a creditor; for the ex- ecutor paying a debt of the testator out of his own pocket stands in the place of the creditor and has the same equity against a legatee Arizona, Rev. Stats. (1913), Civ. Code, §§ 882, 889; Cal. Annot. Stats. (1912), § 7996; Florida, Comp. Laws (1914), § 2405; Georgia, Annot. Code (1914), § 3997; Hawah, Rev. Laws (1915), § 2493; Idaho, Rev. Codes (1908), § 5462; Illinois, Annot. Stats. (1913), § 119; Minnesota, Gen. Stats. (1913), § 7323; Montana, Rev. Codes (1907), § 7760; North Dakota, Comp. Laws (1913), § 8736; Oklahoma, Rev. Laws (1910), § 6454; South Dakota, Comp. Laws (i9I3),Prob. Code, § 171; Utah, Comp. Laws (1907), § 3851; Washington, Codes & Stats. (1915), §§ 1472-79. Compare New Jersey, Comp. Stats. (1910), § 3837; Tennessee, Annot. Code (1917), § 4117. "5 Cutright V. Stanford, 81 111. 240 (1876); People v. Brooks, 123 111. 246, 14 N. E. 39 (1887); Snydacker v. Swan Land Co., 154 111. 220, 40 N. E. 466 (1895). ^°* Arizona, Rev. Stats. (1913), Crv. Code, § 1023; California, Code Crv. Proc. (1916), § 1650; Idaho, Rev. Code (1908), § 5631; Montana, Rev. Codes (1907), § 7660; North Dakota, Comp. Laws (1913), § 8736; Oklahoma, Rev. Laws (1910), § 6454- "^ Gay's Appeal, 61 Conn. 445, 23 Atl. 829 (1892). 108 Burton v. Rutherford, 49 Mo. 255 (1872). iM Miller v. Shoaf, no N. C. 319, 14 S. E. 800 (1892). "° Hodges V. Waddington, 2 Venf. 360; Noell v. Robinson, ,2 Vent. 358; Nelthrop V. Hill, I Ch. Cas. 135, 136. in 8Vin.Abr.pl. 35 (1718).