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yet it was held that the debt was revived by his subsequently proving the will, inasmuch as that proof related back to the testator's death, and he was ordered to account for the sum owing with interest.1 It must, however, be carefully remembered that an executor or administrator will have no right, under any circumstances, to pay a debt or charge which has absolutely become extinguished by statute.2


SEC. 190. Acknowledgment by an Executor.-In England and in some of the States in this country it is held that an acknowledgment of an executor takes a debt due from the estate out of the statute. But generally in this country the rule is that an acknowledgment by an executor does not remove the statute bar after it has once attached to the debt, although it may be sufficient to suspend the operation of the statute if made before the bar is complete; and this doctrine is certainly

1 Ingle v. Richards (No. 2), 28 Beav. 366.

In Hopper v. Hopper, 125 N. Y. 400, 53 Hun, 394, it was held that by the phrase "foreign executor," the mere nonresidence of the individual holding the office is not referred to, but the foreign origin of the representative character; that is, the sole product of the foreign law, and depending upon it for existence, cannot pass beyond the jurisdiction of its origin.

Where, however, ancillary letters testamentary have been issued to a foreign executor, as prescribed by the code, he thereby acquires an official and representative character as executor here, and so may sue or be sued in his representative character in this State.

An action may be brought here against an ancillary executor, as such, by a nonresident, at least when the cause of action arose in this State.

It seems that, even upon recovery of judgment in such an action, the plaintiff may not enforce it against assets here, as to which, quare, and must resort to the forum of original probate jurisdiction, his judgment would be at least prima facie evidence of indebtedness, and would bar the statute of limitations, which other wise might apply.

The will of H., a resident of New Jersey, was admitted to probate in that State, and letters testamentary issued to the executrix who resided there. H. was at his death a member of a firm doing business in New York City. The executrix took out ancillary letters in this State. A creditor of H.'s firm, who


resided in Georgia, brought this action against said executrix in her representa tive capacity, alleging the insolvency of the surviving members of the firm, and asking judgment for the amount of his claim. Held, that the action was maintainable.

2 Lewis v. Rumney, L. R. 4 Eq. 451.

3 Browning v. Paris, 5 M. & W. 120; Taft v. Stephenson, 1 De G. M. & G. 41; Fordham v. Wallis, 10 Hare, 217; Briggs v. Wilson, 5 De G. M. & G. 12.

4 Semmes v. Magruder, 10 Md. 242; Northcut v. Wilkins, 12 B. Mon. (Ky.) 408; Walker v. Cruikshank, 28 La. An. 252; Hall v. Darrington, 9 Ala. 502; Griffin v. The Justices, 17 Ga. 96; Tazewell v. Whittier, 13 Gratt. (Va.) 329; Quyn v. Carroll, 10 Md. 197; Brewster v. Brewster, 52 N. H. 52; Hodgdon v. White, 11 id. 211; Townes v. Ferguson, 20 Ala. 147; Farmers' & Mechanics' Bank v. Leath, 11 Humph. (Tenn.) 615; Buswell v. Roby, 3 N. H. 467; McWhorter v. Johnson, 10 Humph. (Tenn.) 209; Deyo v. Jones, 19 Wend. (N. Y.) 491; Buchanan v. Buchanan, 4 Strobh. (S. C.) 63; Chambers v. Fennemore, 4 Harr. (Del.) 368 ; Shreve v. Joyce, 36 N. J. L. 44; Cann v. Sloan, 25 Md. 575; Head v. Mannin, 5 J. J. Mar. (Ky.) 255; Hard v. Lee, 2 Monr. (Ky.) 131; Johnson v. Beardslee, 15 Johns. (N.Y.) 3; Emerson v. Thompson, 16 Mass. 429.

5 Forney v. Benedict, 5 Penn. St. 225; Sanders v. Robertson, 23 Miss. 389; Moore v. Hardison, 10 Tex. 467; Hazleton v. Whitesides, 2 Strobh. (S. C.) 353; Miller v. Dorsey, 9 Md. 317; Clark v. McGuire, 35 Penn. St. 257; Heath v. Grennell, 61 Barb. (N. Y.) 190; Riser v. Snoddy, 7

consistent with the present theory of acknowledgment, as, upon prin

Ind. 442; Moore v. Hillebrunt, 14 Tex. 312; Peck v. Botsford, 7 Conn. 172; Crandall v. Gallup, 12 id. 365; Thomson v. Peters, 12 Wheat. (U. S.) 565; Richmond, Petitioner, 2 Pick. (Mass.) 567; Manson v. Felton, 13 id. 206; Foster v. Starkey, 12 Cush. (Mass.) 324; McLaren v. McMartin, 39 N. Y. 38; Huntington v. Babbitt, 46 Miss. 528; Seig v. Accord, 21 Gratt. (Va.) 365. In an early case in Pennsylvania, Fritz v. Thomas, 1 Whart. (Penn.) 66, GIBSON, J., laid down the doctrine as stated in the text, and gave the reasons therefor as follows: "The concession that the plaintiff's claim is just, and the promise to see what could be done for him, would doubtless be sufficient to maintain an action, if the consideration were the defendant's own debt. But can any acknowledgment by an executor or administrator preclude him from pleading the statute of limitations to a count on the original cause of action? In Jones v. Moore, 5 Binn. (Penn.) 573, and subsequently in Bailey v. Bailey, 14 S. & R. (Penn.) 195, and Scull v. Wallace, 15 id. 231, it was doubtless taken for granted that a recovery may be had against a plea of the statute, on proof of an acknowledgment by the personal representative. But it is to be remarked that the point has not been adjudged, and that no recovery has in fact been had; and the inquiry is consequently not clogged by the authority of a precedent. In respect to the first of those cases, it is fair, too, to say it was the first step taken by this or perhaps any other court, in returning to the spirit and letter of the statute. But when it was determined that a recognition of the old debt is no more than evidence of a new promise, which, when made to the representative of a decedent, can be sued by him but in a personal character, it was virtually determined that the same recognition by a personal representative is but evidence of a new promise, on which he may not be sued, otherwise than in his personal character, without overturning some of the most firmly fixed principles of the law; for nothing is better settled than that an executor or administrator is answerable, in his official character, for no

cause of action that was not created by the act of the decedent himself; and it is, therefore, singular that the principle, in its application to these convergent propositions, was not carried out. In actions against the personal representative, on his own contracts and engagements, though made for the benefit of the estate, the judgment is de bonis propriis; and he is, by every principle of legal analogy, to answer it with his person and property. The pleadings, it is true, have not hitherto been moulded to the new principle; nor could they be in the case of an acknowledgment by a personal representative, whose promise gives no action against him, unless it be sustained by some other consideration than the previous debt, which imposes no moral obligation to pay it out of his own pocket, especially since he has been deprived of all color of title to the residue. Had the judges, when they determined that a promise to the representative of a decedent must be declared on as such, also determined that it must be declared on as such, when made by him, they would have restored the law to its primitive symmetry, and suggested a principle that would have entirely extinguished the notion of revival, which, for want of it, seems to have lingered in its embers through the succeeding cases'; for the forms of the law are the indices and conservatories of its principles. It would not only have indicated the necessity of a special consideration, to support the promise of a representative, but it would have disclosed a bar to an action against two or more, on a promise by one. And as he cannot charge himself personally without a new consideration, he cannot charge the estate, on the foundation of the old one, to the prejudice of the creditors, whose fund might be materially lessened by it. He is not bound to plead the statute, because he may know the debt to be a just one; and for that reason only, the matter is left to his discretion; but it follows not that he may tie up his hands from using it when the time has come, by a mistaken concession, or an engagement which has no consideration to bind him personally or officially. Besides, it would be hazardous

ciple, a new promise by an executor is invalid because it lacks even a

to expose the estate to the consequences of his inexperience or ignorance of the demands made upon him. We know how perilous a thing it is for the debtor himself, though armed with knowledge and vigilant to guard against surprise, to converse about a debt barred by the statute; but the peril would be overwhelming, if the estate were to be jeoparded by the mistakes of one who is bound to parley, and has not only everything to learn, but to learn it from those whose interest it is to mislead him. Why, then, should we not finish what was so well begun in Jones v. Moore, by making the law of the subject consistent in all its parts, and giving to the statute entire effect, both in substance and in form? To do so would involve no violation of that case as a precedent, for, as I have said, the point was not adjudged; and the step remaining to be taken in the progress of departure from the doctrine of revival is no greater than what was taken there. Indeed, there is no course open to us but to follow the principle out, or abandon it altogether; for, to be consistent, we must either return to the doctrine of revival without qualification, or maintain that an action on his own promise lies not against an executor or administrator in his official character. And for saying it does not, we have the authority of Thompson v. Peters, 12 Wheat. (U.S.) 565, and Peck v. Botsford, 7 Conn. 178, in both of which the point was directly ruled."

In a subsequent case in that State it was held that an executor's promise to pay a debt of the testator will not take it out of the statute, and the court rely upon Fritz v. Thomas, ante, to support the ground, that, as the old promise was not revived, but superseded by the new one, the consideration of a moral obligation would be wanting to make the executor personally liable. Reynolds v. Hamilton, 7 Watts (Penn.), 420. An admission by one co-executor of a debt due from his testator is nowhere receivable as evidence in a suit for the debt, against another coexecutor, to establish the origin of the demand, as to make the other personally liable; though otherwise to take it out of the statute, if the original demand against

the testator is aliunde established. Hammon v. Huntley, 4 Cow. (N. Y.) 493; Deyo v. Jones, 20 Wend. (N. Y.) 491. In Williams on Executors, 1889 (7th ed.), that learned author says: "Where, in assumpsit by an executor, in which all the promises were laid to be made to the testator in his lifetime, the defendant pleaded that he did not promise within six years next before the obtaining of the original writ of the plaintiff, and the plaintiff replied that the original was sued on such a day, and that within six years before the day of obtaining thereof, that is to say, on such a day, letters testamentary were granted to him, by which the plaintiff's action accrued to him within six years; this replication was held bad; because the time of limitation must be computed from the time when the action first accrued to the testator, and not from the time of proving the will; for that gave no new cause of action, and therefore the time of proving the will is perfectly immaterial. Hickman v. Walker, Willes, 27; note to Hodsden v. Harridge, 2 Saund. 63 k; Hapgood v. Southgate, 21 Vt. 584; Warren v. Paff, 4 Bradf. Surr. (N. Y.) 260; Conant v. Hitt, 12 Vt. 285; Boyce v. Foote, 19 Wis. 199.

"But where to an action by an administrator for money had and received to his use by the defendant, who had received the intestate's money after his death, six years and upwards before the commencement of the action, but within six years after letters of administration granted to the plaintiff, the defendant pleaded the statute of limitations, and the plaintiff replied the special matter above mentioned; it was held, upon demurrer, that the statute was no bar, because this was not a cause of action in the intestate, the money having been received after his death, and the plaintiff's title commenced by taking out letters of administration, before which time no cause of action accrued to him. Cary v. Stephenson, 2 Salk. 421. [See Stanford's Case, cited Cro. Jac. 61; Hansford v. Elliott, 9 Leigh (Va.), 792. In Dunning v. Ocean Bank, 6 Lans. (N. Y.) 296, the court say, 'If there was no person or party in being at the time the money in

moral consideration to support it. But, while an acknowledgment by

question came to the possession of the defendant, who could lawfully demand and receive the same, and in whom a right for the recovery thereof vested, or since, . . . the action is not barred. This is well settled, until there is some one entitled to demand and take, there is no obligation to pay, and no promise can be implied. The statute does not begin to operate until then.' Davis v. Gaw, 6 N. Y. 124; Bucklin v. Ford, 5 Barb. (N. Y.) 395; Vaughn v. Mohawk Ins. Co., 13 Wend. (N. Y.) 267; Richards v. Richards, 2 B. & Ald. 447; Piggott v. Rush, 4 Ad. & El. 912; Webb v. Elmore, 2 Bailey (S. C.), 595; Ferguson v. Fyffe, 8 Cl. & F. 121; Johnston v. Humphries, 12 S. & R. (Penn.) 395; Gieger v. Brown, 4 McCord (S. C.), 423; Fishwick v. Sewall, 4 H. & J. (Md.) 393; Jones v. Brodie, 3 Mon. (Ky.) 354; Grubb v. Clayton, 2 Hayw. (N. C.) 378.] So where an action was brought by an administrator against the acceptors of bills of exchange payable to the intestate, and accepted after his death, but before the grant of letters of administration, it was held that the statute ran only from the grant of the letters. Murray v. E. I. Company, 5 B. & A. 204; Pratt v. Swaine, 8 B. & C. 285; s. c. 1 M. & Ry. 351; Perry v. Jenkins, 1 My. & Cr. 118. [In many of the States, express provision is now made by statute as to the time when the statute shall attach to a claim in favor of a deceased creditor, and in some instances the statute is saved where it had run only thirty or a certain other specified number of days before the creditor's death, and in such instances but little difficulty can arise in determining the rights of the parties.]

"It must be observed, that where, in assumpsit by an executor, on a contract made with his testator, all the promises in the declaration were laid to be made to the testator, and the defendant pleaded the statute of limitations, the plaintiff could not in his replication set forth a promise made to himself within six years, without being guilty of a departure, any more than he could in such case give evidence of a promise made to himself within six years upon an issue joined on the plea of the

statute of limitations. Hickman v. Walker, Willes, 29; Dean v. Crane, 6 Mod. 309; Executors of the Duke of Marlborough v. Widmore, 2 Stra. 890; 2 Saund. 63 l. However, in Heylin v. Hastings, Carth. 471, it is said to have been admitted, that a promise made to an executor is sufficient to prove the issue of assumpsit to the 'testator within six years; because the promise does not give any new cause of action, but only revives the old cause, and is of no other use but to prevent the bar by the statute of limitations. But this seems not to be well founded; and it has since been determined, that evidence of an acknowledgment by the defendant within six years of an old existing debt, of above six years' standing, due to the plaintiff's intestate. but which acknowledgment was made after the intestate's death, will not support a count by the administrator, laying the promise to be made to his intestate. Sarell v. Wine, 3 East, 409; s. P. Ward v. Hunter, 6 Taunt. 210; s. P. by Bayley, J., in Short v. M'Carthy, 3 B. & Ald. 631. [This rule has been adopted in Pennsylvania, Jones v. Moore, 5 Binn. (Penn.) 573; but not in New Hampshire, Buswell v. Roby, 3 N. H. 467; nor Massachusetts, Baxter v. Penniman, 8 Mass. 134.] Therefore, where it was necessary to rely on an acknowledg ment, made since the death of the testator, to bar the statute, counts were required in the declaration laying promises to the plaintiff as executor. As to what is sufficient evidence of an account stated with the plaintiff as executor, see Purdon v. Purdon, 10 M. & W. 562.

"Accordingly, if an executor brought an action on a bill or note, and intended to rely on an acknowledgment or promise made to himself in order to bar the statute, he had to state in his declaration the making of the bill or note, and must then have proceeded to aver that, after the death of his testator or intestate, the defendant promised him (the plaintiff) as executor or administrator, to pay him. And where the declaration was so framed, such promise might have been denied by a plea of non assumpsit. For the mere production and proof of the note would not prove the promise as made to the executors, as it

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§ 190.]


an executor will not take a debt against the estate out of the statute,

would if the promise were laid as made to The right of action indeed the testators. is transferred to the executor, but no promise is implied by law to pay him; otherwise the statute of limitations would run from the death of the payee, and not from the time of the note becoming due. In order, therefore, to support the action, there must be an express promise to the executor, that is to say, an express promise as contradistinguished from a promise contained in the note itself, or anything implied out of it; and the cause of action is the existence of the note, with the express promise to the executor to pay the amount of it; whereas the rule is confined to cases where the action is only on the note. Timmis v. Platt, 2 M. & W. 720; Gilbert v. Platt, 5 Dowl. 748; Rolleston v. Dixon, L. 892. The effect of the plea 2 Dowl. of non assumpsit is in such a case to admit that the bill or note was signed by the defendant, but to deny that he made any promise to the executor.

"In Clark v. Hooper, 10 Bing. 840, 4 M. & Sc. 353, payment of interest on a promissory note to an administrator who had omitted to take out administration in the diocese in which the note was a bonum notabile, was held a sufficient acknowledgment of the debt to bar the statute.

"If an executor sues in assumpsit, within a year after the death of his testator, the six years not being elapsed before, though they expire within that period, yet it is held to be sufficient to take the case out of the statute. Tidd, 28 (9th ed.), citing Cawer v. James, Bull. N. P. 150. But see s. c. reported in Willes, 255, nomine Karver v. James. But the contrary was held in Penny v. Brice, 18 C. B. N. S. 393.

"Where a party brings an action before the expiration of six years, and dies before judgment, the six years being then expired, it has been held that his executor or administrator may, within the equity of the fourth section of the statute of limitations (21 Jac. I. c. 16), bring a new action, Matthews v. Phillips, 2 Salk. 425; Kinsey v. Heyward, 1 Lutw. 260; provided he does it recently, or within a reasonable time. No precise time is fixed as to what

shall be deemed a reasonable time; but it
should seem that the statute is the best
guide upon the subject, and as that pro-
merated in it, must be commenced within
vides that a new action, in the cases enu-
a year, so an executor ought also to bring
a new action within that period. 2 Saund.
64 a, note to Hodsden v. Harridge. [In
many of the States of this country express
provision is made to save the statute to a
party who has brought his action in season,
but which has failed by reason of some
technical or other ground other than the
voluntary act of the party, and the period
is generally fixed. See Appendix.] In
within which a fresh action may be brought
Kinsey v. Heyward, 1 Ld. Raym. 434, a
year is said to be a reasonable time, and
the Court of King's Bench appears to be of
this opinion in Wilcox v. Huggins, 2 Str.
207, Fitzg. 170, 289, where it is said that
the most that had ever been allowed was a
proviso in the statute, which gives the
year, and that within the equity of the
plaintiff a year to commence a new action,
where the judgment is arrested or reversed;
and that they would not go a moment
veniences which the statute was made to
further, for it would let in all the incon-
retarded by suits about the will or admin-
avoid. Indeed, if the executor had been
it would have been otherwise, because the
istration, and had shown that in pleading
And LEE, J., said: 'I think what is
neglect would then have been accounted
or is not a recent prosecution in a case of
this nature is to be determined by the dis-
cretion of the court from the circumstances
statute is a good direction.' However, in
of the case; but, generally, the year in the
margine, the action was allowed to be
Lethbridge v. Chapman, 15 Vin. 103, in
brought within fourteen months after the
assigned for it. Upon the whole, there-
testator's death, though no reason was
fore, it was deemed prudent for the execu
tor to bring a new action as soon as he
possibly could after the death of his tes-
tator, and at all events not to delay it be-
yond a year. 2 Saund. 64 b, note. But in
Curlewis v. Lord Mornington, 7 E. & B.
tor was not bound to the year, if under the
283, it was expressly held that the execu

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