"You will see by my will of September 16th, 1896, that I have left my property, real and personal, to you as Trustee, and to my wife Mary E. Schieffelin. 1 want you as soon as you think it desirable, to give to our niece Lulu Dunham the Seventh (7th) street property in the City of Los Angeles, California.

"And all other monies and property, real and personal, that may come into your hands from my estate, I want you to collect all rents and incomes from the same; and whenever you think it advisable, after deducting all necessary expenses, divide the balance between yourself, our sister Lizzie Guirado, our brothers C. L. Schieffelin and E. L. Schieffelin, share and share alike, until such time as you think it advisable to either divide the property as you receive it or sell it and divide the proceeds. Either way, I want yourself, our sister Lizzie Guirado, and our brothers C. L. Schieffelin and E. L. Schieffelin, to share in all property that may come into your hands from my estate except that given to our niece, Lulu Dunham. Whenever you think such division advisable, it might be advisable to consult with our sister and brothers about the manner and time of making such division. However, use your own discretion about it..

Your brother,

Ed. Schieffelin.

1511 Central Avenue, Alameda, California.. April 10th, 1897."

Effingham L. Schieffelin and C. Fannie Schieffelin, his wife, answered separately, suggesting two defenses, one partial and the other complete. The partial defense consists of an averment that certain of the alleged indebtedness of the bankrupt is unconscionable, and the complete defense in the further averment that the alleged trust was created as a spendthrift's trust to prevent the dissipation of the property that Effingham would otherwise have inherited from the deceased. A demurrer to these answers being overruled, and plaintiff refusing to plead further, defendants moved for a decree dismissing the complaint upon the ground of plaintiff's failure to controvert the new matter, which motion was sustained, and the plaintiff appeals.

AFFIRMED.

For appellant there was a brief over the names of Samuel

Hiram Gruber and Bauer & Greene, with an oral argument by Mr. Gruber.

For respondents there was a brief and an oral argument by Mr. John Hicklin Hall.

MR. CHIEF JUSTICE WOLVERTON delivered the opinion.

1. The only question which need be considered in this case is whether Effingham L. Schieffelin acquired any right or title to the property in question by virtue of the papers left by the deceased, which it is alleged are his last will and codicil thereto. The question is made here upon the complaint that it does not state facts entitling the plaintiff to the relief demanded. The plaintiff deraigns title for Effingham wholly through these supposed muniments. If they are insufficient or inadequate for the purposes of a devise or bequest transferring title from the deceased to Effingham, then it must be assumed that he has no interest therein, or it would have otherwise been set out. The statute of this State provides the specific manner in which a will shall be executed; that is, it shall be in writing, signed by the testator, and attested by two or more competent witnesses. A codicil must be executed with the same formality: B. & C. Comp. $$ 5518, 5575. The only exception to this manner of disposing of property by will is in the case of a mariner or soldier in the military service: B. & C. Comp. § 5558. The statute. further provides that any person not an inhabitant of but the owner of property, real or personal, in this State, may devise or bequeath such property by last will, executed, if real estate be devised, according to the laws of this State, or, if personal property be bequeathed, according to the laws of this State or of the state. or territory where executed. If probated elsewhere, certified copies of the will and probate may be recorded in the same manner as wills executed and probated in this State, and are thereafter entitled to be admitted in evidence in the same manner and with like effect: B. & C. Comp. §§ 5561, 5562. By reference to the documents in question it will be seen at a glance that the alleged will is not attested in the manner thus required. It was not, therefore, entitled to probate in this State, as it pertains to

the realty, and was wholly insufficient as a muniment to convey the title thereto to the alleged legatee.

If, however, it was executed according to the laws of California, where the deceased resided at the time of his decease, it would be sufficient to carry title to the personal property; but about this it is unnecessary to inquire.

2. If we admit, as is alleged in the complaint, that the document was duly admitted to probate in Washington County, it of itself carried no title or interest to Effingham L. Schieffelin. Everything not given to the wife was devised and bequeathed to Jay L. Schieffelin, trustee, and the alleged will does not state who were intended to be the cestuis que trustent. Now, to complete the chain of title so as to constitute Effingham one of four of such cestuis que trustent, the plaintiff relies wholly on the letter of April 10, 1897. This letter was not attested as a will or a codicil according to the laws of this State, and therefore it also is clearly not sufficient as a devise of the realty: In re Clayson's Will, 24 Or. 542 (34 Pac. 358) ; Orth v. Orth, 145 Ind. 184 (42 N. E. 277, 44 N. E. 17, 32 L. R. A. 298, 57 Am. St. Rep. 185); Magoohan's Appeal, 117 Pa. 238 (14 Atl. 816, 2 Am. St. Rep. 660).

3. As it concerns the personal property, the alleged codicil, as it appears from the complaint, has never been probated, either in California or here, and it cannot be utilized as evidentiary of Effingham's right or title, if the paper were otherwise competent to declare and fix a trust: Jones v. Dove, 6 Or. 188; In re Johns' Will, 30 Or. 494, 501 (47 Pac. 341, 50 Pac. 226, 36 L. R. A. 242).

It follows that the decree of the circuit court dismissing the suit was properly rendered, and will therefore be affirmed. AFFIRMED.

Argued 29 March, decided 28 April, 1905.

SCOTT v. CHRISTENSON.

80 Pac. 731.

PLEADING STATUTE OF LIMITATIONS.

1. A claim under the statute of limitations is an affirmative defense, and must be specially pleaded, unless it is apparent from the face of the complaint that the cause of action is barred.

[27-46 Or.]

LIMITATIONS-BURDEN OF PROOF-EXCEPTION TO RULE.

2. While it is a general rule that a party pleading the statute of limitations has the burden of proving his claim, there is an exception where the complaint shows that the cause of action would be barred but for certain facts that are stated. In such a case the defendant does not have the burden of proving a defense of limitations, though pleaded, but the plaintiff must prove his allegations, including the special facts relied upon to avoid the statute. Therefore a charge that the defendant, having pleaded the statute of limitations, must establish such defense by a preponderance of proof is not always correct, and in this case it was error.

From Marion: GEORGE H. BURNETT, Judge.

This is an action by Chas. Scott as executor of his father's estate against M. and H. Christenson, resulting in a judgment for plaintiff, from which both defendants appeal. REVERSED.

For appellants there was a brief and an oral argument by Mr. Frank Holmes.

For respondent there was a brief with oral arguments by Mr. Charles William Corby and Mr. Harry J. Bigger.

MR. JUSTICE BEAN delivered the opinion of the court.

This action was commenced in September, 1904, on a promissory note executed and delivered by the defendants to the plaintiff's testate on April 26, 1893, for $74, due one year after date, with interest at 8 per cent per annum. The complaint alleges that no part of the note has been paid, except $20.50 paid on January 19, 1897, and two dollars on January 2, 1899. The answer denies all the allegations of the complaint, except the execution of the note and the plaintiff's representative capacity, and, for an affirmative defense, alleges that on or about November 20, 1895, one of the defendants paid on the note $55 in coin, and, at some time not stated, the other defendant paid and satisfied the remainder of the note in full, by the sale and delivery to the payee of a load of grain; that no payments have been made on the note by the defendants, or either of them, since the 20th day of August, 1896, and the action was not commenced within six years from the time of the last payment, and is therefore barred by the statute of limitations. The reply denied the allegations of the answer. A trial was had before a jury, and the court instructed them, among other things, that the defendants, having pleaded the statute of limitations, must establish such defense by a preponderance of the proof.

1. The statute of limitations is an affirmative defense which a defendant is bound to plead specifically, unless it appears from the face of the complaint that the action is barred, and the general rule seems to be that the burden is on him to sustain such defense, when pleaded: 19 Am. & Eng. Enc. Law (2 ed.), 332.

2. In this case, however, the application of such a rule would require the defendants to prove that the payment of the two dollars alleged by the plaintiff to have been made on the note within six years before the commencement of the action was not made. This would be equivalent to making the averments of the complaint in this regard prima facie true. In order to avoid a demurrer on the ground that the action was barred, the plaintiff was required to, and did, plead the payment. This averment is denied by the answer, and the defense of the statute of limitations pleaded. The plea is grounded on the denial, and, if the burden is on the defendants, the result will be a presumption that such payment was in fact made. Now, the note was barred, and therefore furnished no evidence of a present liability against the defendants, unless a payment was made thereon by them within six years prior to the commencement of the action. The burden of proof to establish such payment was on the plaintiff: Wood, Limitations (3 ed.), § 116; Harding v. Grim, 25 Or. 506 (36 Pac. 634). But the instruction, as given, relieved him of that duty, and imposed the burden of proving a negative on the defendants; and this, we think, was error. Whether the production by a plaintiff of a promissory note, with an indorsement of a payment thereon made by the promisee before the note is barred by the statute, is prima facie evidence of such payment, and shifts the burden to the defendant to show that the payment was not in fact made, as would seem to be the rule in some jurisdictions (Wood, Limitations, 3 ed., § 115; Shephard v. Calhoun, 72 Ill. 337; Bell v. Campbell, 123 Mo. 1, 25 S. W. 359, 45 Am. St. Rep. 505), is a question not necessary to be considered at this time.

Judgment reversed and new trial ordered.

REVERSED.