(Pa.) A divorce granted in another state from a marriage contracted in Pennsylvania, the domicile of the parties, at the suit of the husband, who deserts his wife and acquires another domicile, is not valid.-Appeal of Zerfass, 135 Pa. St. 522, 19 Atl. 1056.

(Vt.) A foreign decree for alimony rendered in an action for divorce, being a decree for the recovery of money, is invalid when the only service on defendant was by publication.-Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132.

(W. Va.) An order, under Code Civ. Proc. N. Y. § 1769, of the Supreme Court of New York, made on motion in a suit for separation not matured for final hearing and granting alimony pendente lite to plaintiff, and not carried into final judgment, is not enforceable in West Virginia, even as to installments of such alimony due and unpaid; it being a mere interlocutory decree, subject to modification and vacation by the court which entered it.-Henry v. Henry, 82 S. E. 522.

(224 Fed. 1)

SMITH v. SMITH.

(Circuit Court of Appeals, Ninth Circuit. May 28, 1915.)

No. 2448.

1. GUARDIAN AND WARD 165-SUIT TO SET ASIDE SETTLEMENT BY GUARDIAN-FRAUD.

That a guardian, who had previously used his ward's money in payment of his own notes, bearing 9 per cent. interest, concealing such fact, obtained an order of the probate court, permitting him to borrow the money at 3 per cent., and settled his accounts on that basis, entitles the ward to relief in equity on the ground of fraud.

[Ed. Note. For other cases, see Guardian and Ward, Cent. Dig. §§ 531-537; Dec. Dig. 165.]

2. JUDGMENT 585-RES JUDICATA-IDENTITY OF CAUSE OF ACTION.

An adverse judgment, in a suit by an heir to recover his share of property, sold by the executor and alleged to have been illegally purchased by his guardian in his individual right, is not a bar to a subsequent suit against the guardian to set aside his settlement on the ground of fraud and for an accounting.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1062-1064, 1067, 1073, 1084, 1085, 1092-1095, 1132; Dec. Dig. 585.]

3. EXECUTORS AND ADMINISTRATORS 224-TIME FOR PRESENTATION OF CLAIMS MONTANA STATUTE.

Rev. Codes Mont. § 7525, providing that claims against the estate of a decedent shall be presented within 10 months after the first publication of notice to creditors, is limited to claims arising on contract and does not apply to a claim against the decedent for misappropriation of funds as guardian.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 768-788; Dec. Dig. 224.]

4. LIMITATION OF ACTIONS EXECUTORS.

85-ABSENCE FROM STATE-ACTIONS AGAINST

Rev. Codes Mont. § 6458, which provides that the running of the statute of limitations shall not begin to run or shall be suspended during the time the person against whom a cause of action exists is absent from the state, applies to a cause of action against an executor or administrator.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 449-455; Dec. Dig. 85.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 139 C.C.A.-30

5. COURTS 375-FEDERAL PRACTICE-FOLLOWING STATE STATUTE OF LIMITATIONS.

While a federal court of equity is not found by a state statute of limitations, on a question of laches it is proper for it to follow that statute, unless facts are shown which render its application inequitable.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 983; Dec. Dig. ~~375.

State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]

Ross, Circuit Judge, dissenting.

Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge.

Suit in equity by William Smith against Mary M. Smith, as executrix of the will of John M. Smith, deceased. Decree for complainant (210 Fed. 947), and defendant appeals. Affirmed.

R. Lee Word and H. G. & S. H. McIntire, all of Helena, Mont., for appellant.

T. J. Walsh, C. B. Nolan, Wm. Scallon, and T. H. Hoolan, all of Helena, Mont., for appellee.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

GILBERT, Circuit Judge. The appellee brought a suit against the executrix of the will of his deceased guardian, alleging that the guardian in his lifetime had appropriated and converted to his own use the money of his ward; that the guardian had presented to the court of his appointment accounts, including his final account, wherein he concealed his misappropriation of the ward's money, and thereby fraudu lently procured the court to settle and allow his said accounts; and that thereafter, when the ward attained his majority, the guardian settled with him on the basis of such final account. The appellee alleged matter by way of excuse for his delay in bringing the suit. The prayer of his bill was that the decree of settlement be set aside, and that he recover from the appellant, as such executrix, the sum of $24,700, which was alleged to be the amount due the appellee upon a proper accounting. The answer denied conversion of the money and concealment and misrepresentation on the part of the guardian, and set up the defenses of res judicata, limitations, and laches. The court below. upon uncontradicted evidence, found facts which were sufficient to establish the charge that the guardian had appropriated to his own use funds of his ward. The court found the facts to be that in 1899 the estate of the appellee's deceased father was in administration in the same court in which the guardian was subsequently appointed. The heirs of the estate were the appellee and his two sisters. The property of the estate was sold at executor's sale, and was purchased by the guardian in his individual right for $85,000. To pay for the property he borrowed money upon his notes, with interest at 9 per cent. per annum. Eighteen months later, upon his application, he was allowed by

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the court to borrow the funds of his wards then in his hands, amounting to $82,000, at interest at the rate of 3 per cent. per annum. The money so borrowed was used by the guardian to pay his notes upon which he was paying interest at 9 per cent. per annum. The appellee attained his majority in October 1906. The final account of the guardian was settled on December 14, 1906, showing a balance due the appellee of $23,954, which sum was paid him on December 15, 1906. The appellee at that time had no knowledge of the misuse of the funds by the guardian, but in August, 1907, his suspicions were aroused by information received from his sister. He then commenced in the superior court for the state of Montana a suit against the guardian, wherein he alleged that the purchase by the latter of the property of the estate was fraudulent, and prayed for his distributive share of said property and the accrued profits. In October, 1908, the guardian died at Battle Creek, Mich., and the appellant herein was, in November, 1908, appointed the executrix of his will, and was thereupon substituted as defendant in that suit. The cause was decided adversely to the appellee herein, and he appealed to the Supreme Court. The judgment was affirmed. Smith v. Smith, 45 Mont. 535, 125 Pac. 987. Thereupon the appellee moved for a rehearing in the Supreme Court on the ground that at least he was entitled to interest upon the money used by the guardian prior to the order of the court authorizing him to borrow it, and he asked that the suit be remanded, with leave to amend the complaint as a basis for such recovery. On November 14, 1912, the application was denied. On March 14, 1913, the appellee herein presented to the executrix his claim upon which the present suit is based, and thereafter, on May 17, 1913, he commenced the present suit. From the time when the appellee attained his majority until the time of the guardian's death the latter was within Montana but 6 months, and thereafter until the present suit was commenced the appellant, the executrix, was within Montana but 15 months. The appellant and the guardian were citizens of Montana, but at the time of the commencement of the suit the appellee had become a citizen of California.

[1] The court below found that the guardian had violated his duty to the ward in using the ward's money to pay his own debts and in failing to charge himself with the profits he thereby derived, and in concealing from the court in probate the fact that 18 months before he applied for leave to borrow the ward's money at the extremely low rate of interest of 3 per cent. he had already appropriated the money to the payment of his own obligations, on which he was obligated to pay interest at 9 per cent. There can be no question that that conclusion is fully sustained by the evidence, and that the court below. was justified in decreeing the relief which was prayed for on the ground that the orders of the court in probate were procured by fraud. Arrowsmith v. Gleason, 129 U. S. 86, 9 Sup. Ct. 237, 32 L. Ed. 630; Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870.

[2] We find no merit in the plea res judicata. The suit in the state court of Montana was brought solely to recover specific property and the profits accruing thereon. The judgment of the Supreme Court

establishing the validity of the sale determined all the issues in that suit. The court said:

"It may be that upon settlement of the guardian's accounts he should have been required to pay a greater rate of interest, and for a longer period of time, than was actually required of him, but that question is not before us."

[3] It is contended that the suit is barred for the reason that the appellee failed to present his claim to the executrix within 10 months from the first publication of her notice to creditors of the decedent to present their claims, as required by section 7522, Revised Codes. The provisions of that section, however, do not relate to a claim of the nature of that which is in controversy in this suit. Section 7525 declares:

"All claims arising upon contracts, whether the same be due, not due or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever."

This has been understood by the Supreme Court of Montana to relate only to claims arising upon contract. In Re Higgins' Estate, 15 Mont. 474, 39 Pac. 506, 28 L. R. A. 116, the court said:

"The creditor cannot maintain his suit under section 157, against an estate, unless he has presented the claim to the executor. And, by section 150, if the claim be one arising upon a contract, unless presented within the time limited in notice, it is barred forever, except under particular conditions.”

The decisions in Melton v. Martin, 28 Mont. 150, 72 Pac. 414, and Dorais v. Doll, 33 Mont. 314, 83 Pac. 884, cited by appellant, are not authority for a different construction, because those were cases of claims arising upon contract. It is said that the statute of Montana was taken from that of California, and that before its adoption in Montana it had received a construction by the Supreme Court of California which would sustain the appellant's contention. We do not find, however, that prior to the adoption of that statute by the state of Montana the Supreme Court of California had construed the California statute in the form in which it was then formulated, and since its adoption by Montana it has been held in Hardin v. Sin Claire, 115 Cal. 460, 47 Pac. 363, that a claim based on a tort need not be presented against the administrator or executor before beginning an action thereon. Section 7532, Rev. Codes Mont., provides that no holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator. That statute was complied with in the present case. The appellee presented his claim before beginning the action.

[4] The principal question in the case is whether or not the plaintiff is barred by his delay in bringing the suit. In considering this question we inquire: First, what is the state statute of limitations in reference to such a cause of action? The statute of Montana (section 6449, Rev. Codes) provides that a suit shall be brought within two years for relief on the ground of fraud or mistake, the time to be computed from the discovery by the aggrieved party of the facts which constitute the fraud or mistake. Section 6458 provides:

"If when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after

his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action."

Section 6461 provides that:

"If a person against whom a cause of action exists, dies, without the state, the time which elapses between his death, and the expiration of one year, after the issuing, within the state, of letters testamentary or letters of administration, is not a part of the time limited for the commencement of an action therefor, against his executor or administrator."

The appellant invokes the rule that exceptions to the statute of limitations are to be strictly construed, and that implied and equitable exceptions are not to be ingrafted thereupon, where the Legislature has not made the exception in express words, and contends that the exception expressed in section 6458 refers only to the absent debtor against whom the action originally accrued, and not to his personal representative, and that therefore the time during which the executrix in the present case was without the state of Montana could not be excluded in computing the time within which an action should have been brought (citing State v. Clemens, 40 Mont. 567, 107 Pac. 896). In that case it was held that an exception to the statute of limitations cannot be enlarged beyond what its plain language imports, and that when invoked the case must clearly and unequivocally fall within it. It is to be observed, however, that the court in that case was dealing with a provision of the Penal Code, and in construing it was governed by section 8096 of that Code, which provides that all provisions thereof "are to be construed according to the fair import of their terms." In the present case we have to determine the meaning of a provision of the Civil Code, the construction of which is governed by section 6214 of that Code, which provides:

"The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this state respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice."

In the case at bar the court below in the opinion said:

"At common law, neither absence from the realm nor death suspended the operation of limitations. This was an evil and tended to defeat justice, in that at such times there could be no service of process and no effective prosecution of a cause of action. The object of section 6458, supra was to furnish a remedy. The evil to be remedied and the object to be accomplished thereby attach no less to the case of absence of a personal representative than to the case of absence of a debtor. Prosecution to effect and justice are hampered equally in both cases. The reason for the statute is as potent in one as in the other. And though the literal reading of section 6458, supra, may support defendant's contention, it must yield to what must be assumed to have been the legislative intent, that is, to suspend limitations whenever absence from the state of the party defendant, be he debtor or personal representative, prevents effective prosecution of a cause of action" (citing Hayden v. Pierce, 144 N. Y. 512, 39 N. E. 638; Smith v. Arnold, 1 Lea [Tenn.] 378; and Wilkinson v. Winne, 15 Minn. 159 [Gil. 123]).

We concur in this view of the meaning and intention of the exception expressed in section 6458, the object of which was to afford a remedy in cases where, on account of absence of the defendant from