dissenting.
The plaintiff, Markham, filed against the estate of Annie Mai Minton, deceased, a claim totaling $95,557.05 for the value of personal services rendered, monies advanced and personal property furnished to Annie Mai Minton during several years in which the plaintiff lived with Mrs. Minton and endeavored to take care of her. Upon motion, the probate judge denied and struck from the record the plaintiff’s claim on the ground that it was not filed as required by T.C.A., § 30-513, which provides:
*264“Limitation on time of filing claims. — All claims and demands not filed with the county or probate court clerk, as required by the provisions of §§ 30-509 — 30-512 or in which suit shall not have been brought or revived before the end of six (6) months from the date of the notice to creditors, shall be forever barred.”
The plaintiff appealed from this judgment to the Court of Appeals which in a two to one decision reversed the judgment of the probate court, and held that the plaintiff’s claim was not barred by the above quoted statute. We granted permission to appeal from that judgment.
The factual basis for this controversy is well stated in the opinion of the Court of Appeals as follows:
“Appellant Markham admits that he did not file his claim within the first six months after notice to creditors in this case, which occurred on May 25, 1976, but argues that he had no claim until December 29,1978, on which date the Tennessee Supreme Court denied certiorari in a case from the Davidson County Chancery Court setting aside a deed from decedent Annie Mai Minton to appellant and one of decedent’s sons. Appellant argues that for him the period of limitation should not be deemed to start running until the date the Supreme Court denied certiorari, from which time he had a claim based upon the consideration he gave for the deed which the court set aside, and that his filing within six months of such time was therefore timely.
“The deed in question was to a twenty-one acre farm which was the home place of decedent Annie Mai Minton. Mrs. Minton executed the deed on October 11, 1972, to appellant Markham and to her son Arnold J. Minton as tenants in common, reserving a life estate for herself. The consideration recited in the deed was ten dollars, ‘love and affection, and other good and valuable considerations including grantees’ services to me in assisting me and taking care of me.’ Appellant had for some years prior to the execution of the deed aided Mrs. Minton in many ways and continued to do so until her death in 1976.
“Appellant had originally made the acquaintance of Mrs. Minton and her husband in 1958, when he bought a farm near theirs. He thereafter grew to have a closer relationship with them, helped them in numerous instances, and in 1968 moved in with them. His relationship with them he describes as being Tike a son.’ After Mr. Minton’s death in 1969, he remained at the Minton farm and cared for the ailing Mrs. Minton until her death. The services appellant performed for the Mintons he lists in his brief as ‘including, but not limited to’ the following:
“. . . furnishing between twenty-five (25) and thirty-five (35) ricks of firewood for fifteen (15) years, mowing and bush-hogging twenty (20) acres three (3) times a year, clearing trees by chainsaw and ax, repairing the house of Mr. and Mrs. Minton, the chicken house, barn, fences, feed troughs, loading shoot, gates, and then personally caring for Mrs. Minton on a daily basis for four (4) years before her colostomy operation and for three (3) years after her colostomy operation, and even paying for Mr. Minton’s funeral expense, for the grave markers for Mr. and Mrs. Minton, and finally purchasing household furniture, appliances, and paying for certain medical and hospital bills. . . .
“Mrs. Minton died on February 10, 1976. On May 14, 1976, the Probate Court of Davidson County denied the application for letters of administration of Miller C. Minton, one of Mrs. Minton’s sons, and appointed Arnold J. Minton and appellant as co-administrators. On May 25, notice to the creditors of the estate was duly published. There was apparently very little in the estate, as Mrs. Minton’s only property of substance was the farm she had earlier deeded to appellant and Arnold Minton.
“On June 3, 1976, Miller C. Minton and Marie Minton Hogan, Mrs. Minton’s daughter, filed suit in Davidson County *265Chancery Court against the co-administrators to set aside the deed from Mrs. Minton to Arnold Minton and appellant. Trial in this action was held in March, 1977, and resulted in the deed being set aside. The trial court specifically found that Mrs. Minton had made a gift by deed of her farm to appellant and Arnold Min-ton, that a confidential relationship existed between donor and donees thereby raising a presumption that the gift was invalid, and that the donees had not satisfied the burden of proving that no advantage was taken of the donor. The court then held that ‘the gift fails and is invalid.’ ”
Thereafter, the decree of the Chancery Court was reviewed by the Court of Appeals which affirmed it and this Court denied certiorari review on December 29, 1978. On April 11,1979, the plaintiff Markham filed the instant claim against the estate of Mrs. Minton. As mentioned above, this claim was stricken by the probate court but the judgment of the probate court was reversed by the Court of Appeals in a two to one decision holding that since the plaintiff’s claim did not arise until after the death of Mrs. Minton and until after expiration of the six months period from the date of the notice to creditors, the six months period of limitations prescribed by T.C.A., § 30-513, had no application and, therefore, that the claim was not barred.
Statutes identical or substantially equivalent to T.C.A., § 30-513, hereinabove quoted, have been considered by some courts as statutes of non-claim and by other courts as statutes of limitation. See 34 C.J.S. Executors and Administrators § 397 (1942) and cases there cited. The distinction is more than one of words. A non-claim statute imposes a “condition precedent” to the enforcement of a right of action, whereas, a statute of limitation creates defenses that must be pleaded and may be waived. It appears that approximately an equal number of courts favor each view. For us, however, it appears that the issue has been recently settled by this Court in an opinion written by former Justice Humphreys in Woods v. Palmer, Tenn., 496 S.W.2d 474 (1973). Justice Humphreys, writing for a unanimous Court, said:
“The filing of a claim against an estate amounts to a demand for payment and is equivalent to the commencement of an action. Wilson v. Hafley, 189 Tenn. 598, 608, 226 S.W.2d 308.
“The filing of the claim within the time and in the manner prescribed by the statute operates to arrest any statute of limitations applicable thereto. § 30-512 T.C.A.
“The nine months (now six months) period for filing claims is referred to in Tennessee Code Annotated as a statute of limitations. § 30-512 T.C.A. Phillips Prichard Law of Wills and Administration of Estates refers to the nine months period for filing of claims as a statute of limitations. § 743(6). Section 30-513 T.C.A., which provides for the limitation on the time for filing claims was amended, Acts of 1971, to Chapter 229, See. 3, so as to decrease the time for filing claims from nine months to six months, but the language of the statute remains that of a statute of limitation; providing, that claims not filed within six months from the date of notice to creditors ‘shall be forever barred.’ Finally, in State v. O’Brien, 200 Tenn. 475, 292 S.W.2d 733, this Court held that § 30-513 T.C.A., as a statute of limitation, did not apply to the sovereign, the State of Tennessee, following prior holdings of this Court to that same effect in State v. Smith, 194 Tenn. 582, 253 S.W.2d 758, and Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425.
“From all of this we must conclude that §§ 30-510 and 30-513 provide only a statute of limitation affecting only the remedy, and are not statutes of proscription.” 496 S.W.2d at 475-76.
Upon petition to rehear, the Court adhered to its original position as follows:
“Petition to rehear has been filed making the same contention which we have already considered, that § 30-513 T.C.A. is a statute of proscription and not a statute *266of limitation. The contention is also made that the proceedings in the Probate Court were such as to preclude appellant Woods from reliance on § 28-106 T.C.A. “With respect to the first proposition, it is sufficient to say that serious consideration was given to this question, and the conclusion was judiciously reached by the entire Court that § 30-513 T.C.A. consistent with all of the authority, is a statute of limitation and not a statute of proscription. We find nothing in the petition to rehear that persuades us to depart from that holding.” 496 S.W.2d at 477.
Therefore, in construing T.C.A., § 30-513, and in determining its application to the facts of this case, I consider that it is a statute of limitations and not one of proscription or non-claim.
Does the statute bar the instant claim which was not filed against the estate until more than six months had expired following the date of notice to creditors? I would hold that it does not.
The claim did not arise and the plaintiff had no claim of any kind against the estate until long after the six months limitation period had expired. His claim did not arise until the decree of the Chancery Court, depriving him of his interest in the twenty-one acre farm deeded to him and Arnold J. Minton as tenants in common, became final. McCroskey v. Bryant Air Conditioning Company, Tenn., 524 S.W.2d 487 (1975); Ameraccount Club, Inc. v. Hill, et al., Tenn., 617 S.W.2d 876 (1981). See also, Hayes v. Ferguson, 83 Tenn. 1, 54 Am.Rep. 398 (1885). Until that judgment became final, there was no eviction of the plaintiff either actual or constructive. Until that time he could not have maintained an action against anyone for the relief sought in this case. It was only when the deed to the twenty-one acres was set aside that there was an unjust enrichment to the estate of the deceased grantor.
I would hold that the statute does not apply to claims which are non-existent during the six months period of limitations. The statute refers to all persons “having claims against the estate.” “Claim” as used in T.C.A., § 30-510, “refers to debts or demands against the decedent which might have been enforced by personal actions for the recovery of money, . . . . ” Wright v. Universal Tire, Inc., Tenn.App., 577 S.W.2d 194 (1978). During the six months period at issue in the instant case the claimant had no debt or demand against the decedent which might have been enforced. During that time the plaintiff had no challenge to ownership of the property and it was not being wrongfully withheld from him. It was pointed out in Collins v. Ruffner, 185 Tenn. 290, 206 S.W.2d 298 (1947) that T.C.A., § 30-510, refers to three types of claims, viz., (1) a written instrument, (2) a judgment or decree of court or (3) by open account. In the instant case, during the six months period following the notice to creditors, the plaintiff did not have any claim falling within any one of the three categories; indeed, he had no claim at all.
My view that T.C.A., §§ 30-510 and 30-513, do not apply to causes of actions accruing only after the decedent’s death is supported by the rationale of Collins v. Ruffner, supra, and Coin Automatic Company v. Dixon’s Estate, 213 Tenn. 311, 375 S.W.2d 858 (1963). In Collins, the Court held that the statute does not encompass tort claims, since a party who has a right of action for tort cannot be deemed “a creditor” until he obtains a judgment. The decedent could not be considered a “debtor” by reason of the tort until there was a court judgment against him. In the Coin Automatic Company case, supra, the Court held that the statute does not include a “claim” for unliq-uidated damages for breach of a covenant not to compete. The Court considered that such “claims” should be distinguished from typical contract cases because the damages that arise are very uncertain, as in tort cases, unlike the typical contract case in which, if the executor fails to timely except to the claim, a judgment can simply be entered.
For cases from other jurisdictions holding that statutes substantially equivalent to T.C.A., § 30-513, do not apply to claims which do not arise until after the death of *267the decedent, see Burdick v. Kerkovecz, 81 Cal.App. 786, 254 P. 684 (1927); Nathan v. Freeman, et al., 70 Mont. 259, 225 P. 1015 (1924); 31 Am.Jur.2d Executors and Administrators § 277 (1967); 34 C.J.S. Executors and Administrators § 401 (1942). In the Burdick case the California court, in holding that a claim was not barred by the limitations statute, said:
“Plaintiff contends, also, that defendants’ right to the return of said money is barred because they failed to present a claim therefor against the estate of her deceased father. The default in the performance of the contract did not occur, however, until after her father’s death, from which it follows that defendants had no valid claim against his estate.” 254 P. at 686.
In the Nathan case, supra, the Montana court, in reaching a conclusion that a claim was not barred by the period of limitations, said:
“These statutes are plain and unambiguous, but have reference only to the indebtedness of a deceased person, contracted by him in his lifetime, and then existing, whether due, not due, or contingent, excepting mortgage debts ... and funeral expenses specified as a preferred claim against the estate of a decedent. .. . They can have no application to obligations arising subsequent to the death of a person because of existing executory contracts. Obligations, arising by virtue of a contract after the death of the party to be held to performance, by operation of law become those of his personal representative in the fiduciary capacity of the latter. In our opinion these statutes of nonclaim have reference to an indebtedness existing at the time of decedent’s death, not to such as arise subsequently by reason of a breach of the executory contracts of the deceased. Claims existing before death are in one category, and those arising subsequently in another.” 225 P. at 1017-18.
Based upon the wording of the statute itself, our own prior decisions and those of other courts, as well as upon justice and equity, I would hold that the instant claim is not barred by T.C.A., § 30-513. Accordingly, I respectfully dissent from the opinion and judgment of the Court.