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surplus of the personal estate, after payment of the debts and legacies, is bequeathed to a residuary legatee, and several creditors, although barred by the statute of limitations, commence actions therefor against the executor, a court of equity will not, on his refusal to plead the statute, compel him to plead it in favor of the residuary legatee;1 nor can a residuary legatee set up the statute, if the executor refuses to do so, in an action by a creditor to recover his debt.2 But this rule is subject to the exception that, when it is sought to charge the real estate of the deceased with the payment of debts due from the estate, either the heir, or a devisee, residuary legatee, or any person interested therein, may interpose the statute. In Arkansas and in Florida it is held to be the duty of the administrator or executor of an estate to plead the statute where the debt or claim was barred during the lifetime of the intestate, or even where it is so stale as to raise the presumption of payment from lapse of time.


limitation, however, applied to all these remedies, as equity follows the law in cases of concurrent jurisdiction of the two courts, and when the remedy at law is as effectual as the equitable one, the legal statute of limitation applies to the remedy in equity.

Causes of action in which, before the adoption of the code, the subject was the same at law and in equity, and the remedy only was different, were not included within the ten years' limitation, but were provided for by the sections preceding limiting actions of law.

The ten years' limitation applied only to cases over which equity had, before the code, exclusive jurisdiction.

1 Castleton v. Fanshaw, Prec. Chan. 100. See also Ex parte Dewdney, 15 Ves. 498. A contrary rule prevails in France under the Code Napoleon, § 2225: “Les creanciers ou toute autre personne ayant interêt à ce que préscription soit acquise peuvent l'opposer encore que le débiteur ou le proprietaire y renonce;" and this rule certainly is more reasonable than that generally adopted by our courts.

2 Briggs v. Wilson, 5 De G. M. & G. 12; Fuller v. Redman, 26 Beav. 614; Alston v. Trollope, L. R. 2 Eq. 205. But under the common practice and decree in England by administration suit it has been held, that, where the bill has been filed and the decree obtained by a residuary legatee, if a creditor applies to prove his debt which is barred by lapse of time, and the executor refused to plead the statute, and the plaintiff insisted upon doing

so, it is competent for the plaintiff or any other person interested in the fund to take advantage of the statute before the master, notwithstanding the refusal of the executor to interpose it. Shewen v. Vanderhorst, 1 Russ. & My. 347; Phillips v. Beal, 32 Beav. 26; Moodie v. Bannister, 4 Drew. 432; Fuller v. Redman, 26 Beav. 614. And in New York it is held that, in taking an account in the master's office, any party in interest may interpose the statute in bar of any claim presented. Partridge v. Mitchell, 3 Edw. (N. Y.) Ch. 180. And in Warren v. Poff, 4 Bradf. (N. Y.) 260, it was held that heirs and devisees might interpose the statute when it is sought to charge the real estate with the payment of debts of the estate.

3 Partridge v. Mitchell, ante; Warren v. Poff, 4 Bradf. (N. Y. Surrogate) 260; Bond v. Smith, 2 Ala. 660.

4 Rector v. Conway, 20 Ark. 79; Rogers v. Wilson, 13 id. 507.

5 Patterson v. Cobb, 4 Fla. 481.

See also Briggs v. Wilson, 5 De G. M. & G. 12; Beeching v. Morphew, 8 Hare, 129; Hunter v. Baxter, 3 Giff. 214; for instance, when a legatee, heir, &c., may interpose the statute.

In re Kendrick, 107 N. Y. 104, it was held that the provision of the code declaring that "the term of eighteen months after the death of a person within this State, against whom a cause of action exists, is not a part of the time limited for the commencement of an action

But while it is generally held that an executor is not, unless otherwise provided by statute, obliged to plead the general statute of limitations, yet he is in all cases bound to set up, in opposition to a claim, a statute which limits the time within which a claim may be presented for payment, or within which an action shall be commenced against him in his official capacity to enforce a claim.' But while the executor at law

estate as creditors, etc., was that of W. The petition did not specify the amount or date of judgment or that any amount was due thereon. The administrator's account, which was verified at the same time with the petition, set forth said judgment, and stated that the claim thereon was disputed by the administrator. Held, that the statement in the petition did not amount to a written acknowledgment of the debt.

against his executor or administrator," does not apply to the provision declaring that a judgment shall be conclusively presumed to be paid after twenty years from the time the party recovering it was entitled to a mandate to enforce it, except as against one, who, within the twenty years has made a payment or acknowledged an indebtedness thereon, and there is no provision contained in the code which, under any circumstances, extends the time within which an acknowledg- On the hearing before the surrogate, in ment or payment must be made in order January, 1885, an order was made on moto rebut the otherwise conclusive presumption of the administrator allowing the tion of payment after the lapse of twenty account to be amended by striking out years.

W. recovered a verdict against K. in May, 1863; K. died intestate in January, 1883; his administrator qualified in February, 1883; W. presented his claim in March, 1884. In February, 1884, a petition was presented by other judgment creditors asking that the administrator of K. be required to pay their judgment. The administrator by his answer thereto, verified and filed in March, 1884, set up the judgment recovered by W.; that it was entitled to a priority; that notice of the claim thereon had been presented and that the assets were insufficient to pay it. Held, that conceding the eighteen months' exclusion applied, this answer was not a sufficient acknowledgment to revive the W. judgment, as he was not a party to the proceeding in which the answer was interposed.

An admission or acknowledgment made to a stranger, not intended to be communicated to or to influence the conduct of a judgment creditor, is not effectual to rebut the presumption of payment so arising or to revive a debt barred by the statute of limitations.

A petition by the administrator for a judical settlement of his accounts was verified November 20, and filed November 28, 1884. Among the names set forth therein of those interested in the

the statement that the W. judgment was a disputed claim. Previous to this another judgment creditor had filed objections to the claim on the W. judgment, on the ground that it was barred by the statute. And it was held that it was out of the power of the administrator at that stage to bind the contesting creditors by any acknowledgment of the W. judgment as a subsisting claim.

Upon the settlement of an administrator's accounts, creditors whose claims are not barred by the statute of limitations, are entitled to object to those which are, when the assets are insufficient to pay both.

1 Sugar River Bank v. Fairbanks, 49 N. H. 140; Scott v. Hancock, 13 Mass. 162; Wiggins v. Lovering, 9 Mo. 262; Hodgdon v. White, 11 N. H. 208; Hall v. Woodman, 49 id. 295; Walker v. Cheever, 39 id. 428; Amoskeag Mfg. Co. v. Barnes, 48 id. 25; Heath v. Wells, 5 Pick. (Mass.) 140; Lamson v. Schutt, 4 Allen (Mass.). 359; Waltham Bank v. Wright, 8 id. 122 Emerson v. Thompson, 16 Mass. 432. most of the States, provision is made that claims against an estate shall be presented within a certain time after the death of the creditor, or the appointment of an executor or administrator, or be forever barred; and these statutes must be strictly complied with. Ticknor v. Harris, 14 N. H.


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must interpose this statutory defence, it was held in the case first cited in the preceding note that where the presentation of a claim against an insolvent estate within the time limited is prevented by the fraudulent concealment of the claim by the deceased, a court of equity may decree satisfaction thereof out of the surplus, if any, in the hands of heirs and distributees, if the bill praying for such relief is filed promptly 16 id. 318; Peacock v. Haven, 22 id. 23; Wingate v. Pool, 25 id. 118; Mason v. Tiffany, 45 id. 392; Beard v. Presbyterian Church, 15 Ind. 490; Preston v. Day, 19 Iowa, 127; Goodrich v. Conrad, 24 id. 254; McPhetres v. Halley, 32 Me. 72; Pettengill v. Patterson, 39 id. 498; Thurston v. Lowder, 47 id. 72; Rawlings v. Adams, 7 Md. 26; Bemis v. Bemis, 13 Gray (Mass.), 559. And, unless the statute gives the court power to excuse delay, no remedy exists where the party has neglected to present his claim, whatever may have been the reason for delay. Sandford v. Wicks, 3 Ala. 369; Bigger v. Hutchins, 2 Stew. (Ala.) 448. These statutes, however, do not ap

272; Badger v. Kelly, 10 Ala. 944; Pickett v. Ford, 5 Miss. (4 How.) 246; French v. Davis, 38 Miss. 218; Thrash v. Sumwalt, 5 Mo. 13; Walker v. Cheever, 39 N. H. 420; Whitmore v. Foose, 1 Den. (N. Y.) 159; Scovil v. Scovil, 45 Barb. (N. Y.) 517; Barsalou v. Wright, 4 Bradf. (N. Y.) 164; Williams v. Chaffin, 2 Dev. (N. C.) L. 333; Goodman v. Smith, 4 id. 450; Hubbard v. Marsh, 7 Ired. (N. C.) L. 204; Harter v. Taggart, 14 Ohio St. 122; Estate of Smith, 1 Ashm. (Penn.) 352; Demmy's Appeal, 43 Penn. St. 155; Atwood v. R. I. Agricultural Bank, 2 R. I. 191; New England Bank v. Newport, &c. Co., 6 R. I. 154; Hooper v. Bryant, 3 Yerg. (Tenn.) 1; Kelly v. Hooper, id. 395; Crawbaugh v. Hart, id. 431; Hawkins v. Walker, 4 id, 188; Foster v. Maxey, 6 id. 224; Trott v. West, 9 id. 433; 1 Meigs (Tenn.), 163; State Bank v. Vance, 9 Yerg. 471; Greenway v. Hunter, 1 Meigs (Tenn.), 74; Rogers v. Winton, 2 Humph. (Tenn.) 178; F. & M. Bank v. Leath, 11 id. 515; State v. Crutcher, 2 Swan (Tenn.), 504; Allen v. Farrington, 2 Sneed (Tenn.), 526; Maynard v. May, 2 Coldw. (Tenn.) 44; Hall v. McCormick, 7 Tex. 269; Perry v. Munger, id. 589; Crosby v. McWillie, 11 id. 94; Cobb v. Norwood, id. 556; Coles v. Portis, 18 id. 155; Jennings v. Browder, 24 id. 192; Peyton v. Carr, 1 Rand. (Va.) 436; Mann v. Flinn, 10 Leigh (Va.), 93; Ready v. Thompson, 4 S. & P. (Ala.) 52; Jones v. Pharr, 3 Ala. 283; Starke v. Keenan, 5 id. 590; King v. Mosely, id. 610; Cawthorne v. Weisinger, 6 id. 714; State Bank v. Gibson, id. 814; Badger v. Kelfy, 10 id. 944. See McHenry v. Wells, 28 id. 451; McDougald v. Dawson, 30 id. 553; Bank of Montgomery v. Plannett, 37 id. 222. Walker v. Byers, 14 Ark. 246; State Bank v. Walker, id. 234: Biscoe v. Sandefur, id. 568; Bennett v. Dawson, 15 id. 412; Hill v. State, 23 id. 604; Danglada v. De la Guerra, 10 Cal. 386; Fanning v. Coit, Kirby (Conn.), 423; Rowan v. Kirkpatrick, 14 Ill. 1; Ryan v. Jones, 15 id. 1; Stillman v. Young,

ply to strictly equitable claims, as mortgages, Bradley v. Norris, 3 Vt. 369; Austin v. Jackson, 10 id. 267; Locke v. Palmer, 26 Ala. 312; McMurrey v. Hopper, 43 Penn. St. 468; Allen v. Moer, 16 Iowa, 307; Fisher v. Mossman, 11 Ohio St. 42; Menard v. Marks, 2 Ill. 25; or to compel the application of trust funds, Page v. Boyd, 22 Ark. 535; Stark v. Hunton, 3 N. J. Eq. 300; or to claims which originate after the period named, Griswold v. Bingham, 6 Conn. 258; Hawley v. Botsford, 27 id. 80; Chambers v. Smith, 23 Mo. 174; nor to a claim for the recovery of specific property, Andrews v. Huckabee, 30 Ala. 143; Sims v. Canfield, 2 id. 555; nor where administration is suspended because the administrator fails to qualify, Morgan v. Dodge, 44 N. H. 255; Abercrombie v. Sheldon, 8 Allen (Mass.), 532; nor to a claim in the Orphan's Court, Yingling v. Hesson, 16 Md. 112; Glenn v. Hebb, 17 id. 260. Nor do those statutes attach until a claim is due; therefore, where the statute provides that all claims must be presented or sued within one year after they accrue, and a claim does not become due until two years after an administrator is appointed, the creditor has a year after the claim becomes due in which to present it. Neil v. Cunningham, 2 Port. (Ala.) 271.

after the discovery of the claim.1 But a general request by the executor to the creditors of the estate for delay, from time to time, or his assurance to them that the debt is good, will not, unless otherwise provided in the statute, save the operation of the statute limiting the presentation or enforcement of claims; and if he pays such claims after they are barred under such statute, he is guilty of devastavit. If the execu


tor neglects to plead the statute limiting the time within which claims may be presented or sued, the judgment will not be binding upon the estate, and an execution issuing thereon, levied upon the real estate of the deceased, is void as to all persons except the executor or administrator who permitted it to issue; and money paid by him in satisfaction of such a judgment will not be allowed to him in his final account. Thus it will be seen that the executor or administrator is absolutely bound to take advantage of the statutes referred to specially intended for the quieting of claims against estates, although he is invested with an unqualified discretion as to whether he will or not interpose the bar of the general statute of limitations; and while he may obtain a license to sell real estate to pay debts barred by the general statute, unless it appears that they are so stale as to raise a presumption of payment,“ yet a license will not be granted to sell real estate, when no claims have been presented against the estate, or sued within the time prescribed by law, because in that case there are no debts to be paid,' and a license, if granted, would be void, upon the ground that the order is: issued by the court without any actual jurisdiction over the subjectmatter to which it relates, because there are no debts, and therefore there is no authority on the part of the court under the statute to issue

1 See Sugar River Bank v. Fairbanks, ante, where this question is fully considered.

In re Haxtum, 102 N. Y. 157, reversing 33 Hun, 364, it was held that the fact that a claim against the estate of a deceased person has been presented to and rejected by the executor or administrator, does not deprive the surrogate of jurisdiction to determine the validity of the claim in proceedings instituted under the code, upon petition of the creditor to sell the real estate of the deceased. The surrogate has jurisdiction in such a proceeding to determine the validity of all claims upon the estate which are not already liens upon the real property, as well that of the petitioning creditor as of other creditors.

The six months' limitation within which an action must be brought against an executor or administrator upon a claim rejected by him, does not apply to a claim presented and rejected before the amendment of the statute of 1882 (Chap. 399,


Laws of 1882), where no notice to creditors was ever published by the executor or administrator.

2 Langham v. Baker, 5 Baxter (Tenn.), 701. But it seems that a request made by an administrator to creditors of the estate, to forbear until he can collect money enough to pay, is a special request, sufficiently definite to suspend the operation of the general statute of limitations. McKizzack v. Smith, 1 Sneed (Tenn.), 470.

Thayer v. Hollis, ante; Amoskeag Mfg. Co. v. Barnes, ante.

Stillman v. Young, 16 Ill.318; Hodgdon v. White, ante.

5 Hodgdon v. White, 10 N. H. 208.

6 Scott v. Hancock, 13 Mass. 162; Moers v. White, 6 Johns. (N. Y.) Ch. 369; Hodgdon v. White, ante.

7 Tarbell v. Parker, 106 Mass. 347; Hall v. Woodman, 49 N. H. 304 ; Lamson v. Schutt, 4 Allen (Mass.), 359; Ferguson v. Scott, 49 Miss. 500; Robinson v. Hodge, 117 Mass. 222; Nowell v. Nowell, 8 Me. 220.

the order.1 These special statutes of limitation do not apply to an offset set up by a person who is sued by an administrator to recover a debt due from him to the estate. Thus, where an administrator sued a bank for money deposited by his testator, and for dividends on stock of the bank owned by him, and the bank set up an offset thereto, to which the administrator objected on the ground that the claim was not presented to the probate court for allowance within the time prescribed by statute, and consequently was barred, the court held that the objection was not well grounded, because the statute only contemplated cases where the creditor in the first instance brought his claim against the estate, and had no application to suits by the administrator against a creditor, where the demand of the latter was set up as a counterclaim, and that in such a case the only statute that could be set up against the counterclaim or set-off was the general statute of limitations.2

SEC. 189. Effect of Statute when Creditor is Executor or Administrator; when Debtor is Executor, &c. The question of the statute does not arise where a legatee is also an executor of the testator, so that the same hand gives and receives. Thus, in the case first cited in the last note, where such a condition existed, LORD HATHERLEY, V. C., said: "Having the whole of the testator's assets in his hands, he could not sue himself, the legacy was, therefore, either at home, that is to say, it would have been satisfied if there had been assets, or it was kept alive, because in ordinary circumstances a bill might have been filed to keep it alive; but this gentleman [the administrator] could not have taken so absurd a step as to file a bill against himself for the purpose of making himself pay his own legacy." This reasoning does not in terms, but in effect would seem to, apply to a case where the executor is an ordinary creditor of his testator, and, as such is the rule where the debtor is administrator to the creditor, it would seem to hold good in the converse case. Notwithstanding the almost universal rule, that when time has once commenced to run in these cases no alteration of circumstances in the way of any disability on the part of plaintiff or defendant will prevent it continuing to run, yet in cases where the debtor takes out administration to the creditor, time will not run in the debtor's favor, even though it has commenced to run previously to his administration. And it appears that where administration of the goods of a creditor is given to a debtor, this, being done by act of law, is not an extinction of the debt, but a suspension of the remedy. And where a debtor was appointed one of several executors of his creditor's will, but did not prove his debt until it was already barred by lapse of time,

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8 Binn v. Nichols, 2 Eq. 256; Prior v. Horniblow, 2 Y. & C. Exch. 200; Adams v. Barry, 2 Coll. 290.

4 Seagram v. Knight, L. R. 2 Ch. 633; Needham's Case, 8 Coke, 135 a; Wankford v. Wankford, 1 Salk. 299.

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