§ 289. When Action is treated as commenced 290. Statutory Provisions relating to 291. Date of Writ not conclusive 292. Filing Claim before Commissioners. Pleading, Set-off, &c. . CHAPTER XVI. EXECUTORS AND ADMINISTRATORS. SEC. 188. Executor may pay Barred Debts SEC. 194. When Statute has begun to run or not, in his Discretion. 189. Effect of Statute when Creditor is Executor or Administrator; when Debtor is Executor, &c. 190. Acknowledgment by an Ex ecutor. 191. What Acknowledgment by an Executor is sufficient. 192. Where Executor is also Devisee in Trust. 193. Where Statute has run against Debt before Testator's Death. cretion. during the Life of the Testator. 195. Executors de son Tort. 196. Statutory Provisions relative to Suits in Favor of Decedents' Estates. 197. When Parties in Interest may set up the Statute. 198. Right of Executor to set off Debt barred. 199. Rule in Equity as to Claims against Decedent's Estate. SEC. 188. Executor may pay Barred Debts or not, in his DisWhen the remedy for a debt is barred by lapse of time, an executor or administrator is nevertheless not obliged to take advantage of the statute, but may at his discretion satisfy the debt. "No executor," said LORD HARDWICKE, "is compellable either in law or equity to take advantage of the statute of limitations against a claim otherwise well founded." 1 In fact, it has been treated as almost a duty in some cases for an executor to satisfy in that way, in his representative char 1 Norton v. Frecker, 1 Atk. 524; Fairfax v. Fairfax, 2 Cranch (U. S. C. C.), 25; Walter v. Radcliffe, 2 Desau. (S. C.) 577; JACKSON, J., in Scott v. Hancock, 13 Mass. 162; Woods v. Elliott, 49 Miss. 168; Ritter's Appeal, 23 Penn. St. 95; Biddle v. Moore, 3 id. 178; McFarland's Estate, 4 id. 149; Fritz v. Thomas, 1 Whart. (Penn.) 66; Hodgdon v. White, 11 N. H. 208; Pollard v. Sears, 28 Ala. 484; Amoskeag Mfg. Co. v. Barnes, 48 N. H. 25; Emerson v. Thompson, 16 Mass. 431; Tunstall v. Pollard, 11 Leigh (Va.), 1; Kennedy's Appeal, 4 Penn. St. 149; Smith's Estate, 1 Ashm. (Penn.)352; Steel v. Steel, 12 Penn. St. 67; Miller v. Dorsey, 9 Md. 317; Batson v. Murrell, 10 Humph. (Tenn.) 301; Simms v. Magruder, 10 Md. 242; Thayer v. Hollis, 3 Met. (Mass.) 369; Chambers v. Fennemore, 4 Harr. (Md.) 368; Payne v. Pusey, 8 Bush (Ky.), 564; VOL. II.-1 Barnwall v. Smith, 5 Jones (N. C.) Eq. 168. While, as stated, an administrator may pay a debt barred by the statute of limitations, yet he cannot pay a debt that accrued under a contract that is void because within the statute of frauds; and if he does so, he is chargeable with devastavit. Baker v. Fuller, 69 Me. 152. The reason for this distinction is that in the one case a legal liability at some time existed on the part of the deceased to pay the debt, while in the latter case no legal liability to pay ever existed, and the executor has no power to render a void contract made by his testator valid. Under the statute in Florida, in a suit against an adminis trator or executor on an open account, the court should expunge therefrom every item which shall appear to have been due five years before the death of a testator or intestate. Patterson v. Cobb, 4 Fla. 481. acter, the conscience of his testator.1 And LORD HATHERLEY, in overruling a case, remarks as follows: "It certainly cannot be considered to be law at the present day, that executors paying a debt against the recovery of which the statute of limitations might be pleaded as a legal bar, render themselves liable to those who are interested in the testator's property." 1 Williamson v. Naylor, 3 Y. & C. 211, note (a); Stahlsmidt v. Lett, 1 Sm. & G. 415; Byrd v. Wells, 40 Miss. 711. PARKER, C. J., in Hodgdon v. White, 11 N. H. 208; Scott v. Hancock, 13 Mass. 164. In Mississippi, Byrd v. Wells, ante; Trotter v. Trotter, 40 Miss. 704; and in Florida, Patterson v. Cobb, 4 Fla. 481, it is held that he cannot pay debts that were barred anterior to the granting of administration, but that he may pay those which became barred after he has qualified. Byrd v. Wells, ante. In Kennedy's Appeal, 4 Penn. St. 149, the court held that an executor may pay a just debt, though barred by the statute, and that net payment is valid as against the distributees. 43. cretion, pay debts due to others, the remedy for which is barred by lapse of time. Norton v. Frecker, 1 Atk. 533; Stahlsmidt v. Lett, 1 Sm. & G. 415; Ex parte Dewdney, 15 Ves. 498; Williamson v. Naylor, 3 Y. & C. 211, note (a); Hill v. Walker, 4 K. & J. 166; Williams on Executors (6th ed.), 1664. And further, he may, as might be expected, retain assets of the testator sufficient to pay such debts when due to himself. Stahlsmidt v. Lett, 1 Sm. & G. 415; Coates v. Coates, 33 Beav. 249; Courtenay v. Williams, 3 Hare, 539. And according to the cases cited this is so even when the debts were barred in the lifetime of the testator. Hill v. Walker, 4 K. & G. 166. And his right to payment will not be 2 McCullough v. Dames, 9 D. & Ry. affected by payment of the testator's effects into court. In Woodyard v. Polsley, 14 8 Hill v. Walker, 4 K. & J. 166. See W. Va. 211, it was held that when, in a also Lewis v. Rumney, L. R. 4 Eq. 451. creditor's suit in equity against an adminThe rule may be said to be that an executor istrator and the heirs, the court takes into may, in the exercise of his discretion, pay its own hands the administration of the a debt barred by the statute of limitations, assets by referring the cause to a commisnotwithstanding that the personal estate sioner to take an account of the debts of of the testator is insufficient, and that the the intestate, the statute of limitations effect of such payment by him is to throw ceases to run against the creditor, not a the burden thereof upon devisees of real formal party to the bill, the bill not being estate, upon which the other debts are in in form a creditor's bill from the date of consequence thrown. Lewis v. Rumney, such decree in the case; and that if in such L. R. 4 Eq. 451. In the case last cited a case the statute of limitations has not LORD ROMILLY, Master of the Rolls, re- been specially pleaded nor relied on before marks: "I think it is much to be regret the commissioner, and he failed to recogted that the statute did not destroy the nize the statute, and therefore indorsed no debt, instead of merely taking away the exception upon the report, the appellate remedy for it. The result is that questions court will consider the statute of limitaconstantly arise, and amongst others, tions as out of the case, although the rewhether an executor may not pay a debt port upon its face shows that some of the barred by lapse of time. I am of opinion claims allowed by the commissioner were that in the exercise of his discretion he barred by the statute. Where the testator may do so, and that it does not make the in his will expressly directs the executor slightest difference whether the personal to disregard the statute of limitations, estate is sufficient or insufficient. If it be there can, of course, be no question as to his insufficient, the statute gives the creditor right to pay all just debts without refera remedy against the real estate, but that ence to the question whether they are does not interfere with the discretion of barred or not, even though the statute rethe executor." quires him to plead the statute of limitaAn executor may, therefore, at his dis- tions. Campbell v. Shoatwell, 51 Tex. 27. And he may pay a debt due to himself upon which the statute has run with the same propriety that he may pay one so barred, due to any other person; and neither the heirs or other distributees of the estate have any remedy against him therefor. 1 Payne v. Pusey, 8 Bush (Ky.), 564. But it was also held in this case, and such is the general rule, that, if he is unable to realize his debt out of the personal estate, and seeks to make the heirs liable therefor, the heirs may set up any defence to the claim which the intestate could have set up including the statute of limitations. When he goes into a court of equity, the administrator stands like any other creditor for the purpose of making his debt out of the heirs, as he has no right or title in that part of the estate any more than any other creditor of the estate. In Massachusetts, in a case previously cited, Scott v. Hancock, ante, where the period within which an administrator was, under the statute, liable to a suit, no action having been brought against him, the court refused a license to him to sell the real estate to pay debts; and, generally, if all the debts are barred by the statute applicable to administrators, a license to sell will be denied. Wellman v. Lawrence, 15 Mass. 336; Ex parte Allen, id. 58. And, if granted, it will be void, as, by permitting the statutory period to elapse without bringing their action, they lose all lien upon the real estate for the payment of their debt. Heath v. Wells, 5 Pick. (Mass.) 139; Thompson v. Brown, 162 Mass. 172. And the levy of an execution under a judgment obtained in an action brought after the statutory period has elapsed, is void as against the heirs or devisees. Thayer v. Hollis, 3 Met. (Mass.) 369. But this is not the rule in New York. Thus in Butler v. Johnson, 111 N. Y. 204, reversing 44 Hun, 206, it was held that although a creditor of an estate was not bound, as the law stood in 1872, to institute proceedings to compel the sale of real estate to pay debts until after an executor or administrator had rendered an account, such omission did not stop the running of the statute of limitations as against the debt. An executor or administrator is bound to set up the bar of the statute of limitations, and has no authority to allow a claim so barred. It has been held that if the As against an estate, therefore, a debt barred by the statute is to be regarded as no debt. Thus where an executor, having a power of sale of the testator's real estate, to pay debts, is taking steps to execute the power for the purpose of paying debts which are outlawed, those who have succeeded to the testator's title may maintain an action to restrain such sale, as it would place a cloud upon their title. J. died June 14, 1871, leaving a will which was admitted to probate June 28, 1871. By the will the executrix was authorized to sell the real estate to pay debts. In 1883, defendant as executrix of J., upon application of a legatee and certain simple contract creditors, published a notice of sale of said real estate to pay said legatees and creditors. The accounts of said executrix had never been judicially settled. In an action brought by grantees of the heirsat-law to restrain such sale, held, that both the legacy and debts were barred by the statute of limitations prior to the time the Code of Civil Procedure went into effect, and so were not revived by the provision of that code (sec. 1819), declaring that, for the purpose of computing the time within which a cause of action may be commenced by a legatee against an executor to recover a legacy, the cause of action is deemed to accrue when the executor's account is judicially settled, and that the action was maintainable by plaintiffs. The legatee could have asked the surrogate to decree payment of the legacy by the executrix, which decree could have been enforced if there were assets. After the expiration of eighteen months she could have cited the executrix to account before the surrogate, and the accounting could have been enforced. She could have proceeded by action for a simple accounting or for payment of the legacies, and could have included therein a prayer that if the personal property was insufficient, the executrix should be compelled to exercise the power of sale of the real estate given her by the will, and with the proceeds pay such legacies. The six years' |