| N.H. | Jun 15, 1872
The first question presented by the case is, Does Harriet Brewster’s right of action survive ? For the purposes of this consideration, we must taire the statement which the counsel on both sides have agreed to, as presenting the real facts of the case, and not the argument of the defendant’s counsel, which presents a very different state of facts. Not until such a case is agreed to, or otherwise properly presented as the defendants have commented upon, will it be necessary to consider the questions of law raised thereby.
The defendants’ argument assumes that, “ in reference to the first demand, the defendants paid all that Harriet Brewster required, and all that she said she required ; and that she excused further payment on the 11th day of August, 1869, when $393.50 was paid and received in full for all she then required.” But the case finds that the first demand was “ a written demand for the payment of said $1,500and how it happened that no more than $393.50 was paid, in response to this demand, does not appear; but, also, it does not appear that “ she excused further payment; ” nor that the above sum was “ paid and received in full for all she then required.”
It is assumed that the second demand was made when said Harriet w was dying,” “ after she ceased to be conscious; that it was made by the plaintiff to lay the foundation of this suitand that she died before the defendants could reach her bedside to answer the demand, — which suggestions, whether important or not, are not agreed facts.
It is also suggested that “ only so much of said $1,500 was payable as and when she found it necessary for her comfort, and in such
But the case finds that Charles W. Brewster, in his lifetime, being indebted to his sister, Harriet Brewster, in the sum of $1,500, gave her the writing which is the foundation of "this suit.
By the terms of this instrument, he promises to pay her the interest semi-annually, “ the principal to be paid to her when she may require it, but to no other person.” The obligation binds his heirs, and also releases them from any obligation beyond her lifetime; that is, the note is not negotiable ; and if she does not require its payment during her lifetime, the maker thereof and his heirs are discharged.
Bearing in mind, then, that Charles is indebted to his sister in the sum of $1,500, it would follow that she might recover it of him or his heirs during her lifetime, and, if demanded and not paid,.or payment excused by her, that such demand should enure for the benefit of her heirs, and, in the absence of any suggestion of reasons for excusing the payment of this debt, or for taking it out of the ordinary course of such matters, we should not seek occasion to give such an interpretation to the instrument in suit as would prefer, among the heirs of the respective parties, the claims of the debtor to those of the creditors.
If Charles was indebted to his sister, she was entitled, with or without the written acknowledgment of indebtedness, to require payment, and to dispose of the money by leaving it to her heirs, or doing whatever else she pleased with it.
The verb ££ require ” is not absolutely the synonym of the verb “need,” though it is of the verb “ demand.” Crabb’s Synonyms 228. Although the verb require may, undoubtedly, be properly used in the sense of the verb need, such is not its primary nor its usual signification. It comes from the Latin requiro, compounded of re and qucero— to seek for, or to seek to get back. It- means, according to all lexicographers, and in very common parlance, to demand; or, as Webster defines it, to ask as of right and by authority: as King David required Joab to number the children of Israel. 1 Chron. xxi. 3.
The pi’incipal sum may or may not have been needed for the support of Harriet. If it were a mere gratuity, she could not demand it, at least beyond the requirement of reasonable necessity; but since it was a debt due and owing to her from Charles, she had an undoubted right to require and demand it at any time during her life, whether for her own use or to give to her heirs. Twice she made that demand, and thereby fixed the liability of the defendants, the obligation binding the heirs of Charles, whom these defendants represent.
We áre, therefore, of the opinion that the cause of action survived, and that it may be enforced unless it shall be found to be barred by the statute of limitations.
The second question is, Upon the facts stated in the brief-stater ment, is or is not this action barred ? We are constrained to answer this question negatively.
This right of action existed in favor of the deceased at the time of her death, and it survived; and this action was brought by her executor against the executors of her debtor within two years after the original grant of administration upon her estate.
The wisdom of and the necessity for the enactment of the seventh section of the statute will become apparent upon a moment’s reflection, which will also dissipate an impression, apt to be conceived upon the first glance at the chapter, that these two sections are incompatible and irreconcilable with each other.
By the fifth section, the ' plaintiff’s testate’s right of action against the defendants was limited to three years; but she had the full time of three years in which to commence such action. Suppose she had died but a few days or weeks before the expiration of said three years, the action must be prosecuted by her executor or administrator; but before the affairs of the decedent’s estate can have been investigated, and administration thereupon granted, the three years have expired, and, too late, the executor finds this demand barred by the statute of limitations, but for the suspension of that statute by force of the equitable provision of the seventh section, intended for just such an emergency, and applying, by force of its terms, to the present case, in which the emergency does not happen to exist, but where it might very probably have existed. The statute is founded in wisdom, is universal in its application to the case of creditors or debtors deceased, and this case falls within its provisions, and is to be governed by it.
It has been decided that, as against a creditor of the deceased, the statute does not always begin to run from the death of the debtor. Lapse of time will not bar the debt, so long as the estate is unadmiuistered and the trust subsists. McCandless’s Estate, 61 Pa. St. 9; Shaw v. Kohala, Supreme Court of Hawaii, January term, 1872.
Similar reasons and considerations must uphold the converse of this proposition, calling for the suspension of the operation of the statute during the period when, letters of administration upon the estate of the creditor having not been taken out, there is no representative of the creditor entitled to bring suit. And such considerations, doubt-
If these views are correct, it is unnecessary to consider the plain- v tiff’s suggestions, to the effect that the case is taken out of the statute by reason of payments, made by the defendants, operating as new promises to pay the original claim.
It is elementary law that a partial payment of a note, made before a bar by limitation, is prima facie an acknowledgment that the residue is unpaid, and of a continuing liability therefor, and suspends the operation of the statute between the accrual of the cause of action on the note, and the date of that payment. Jones v. Jones, 21 N. H. 219; Whipple v. Stevens, 22 N. H. 219; Hopkins v. Stout, 6 Bush 375" court="Ky. Ct. App." date_filed="1869-12-21" href="https://app.midpage.ai/document/hopkins-v-stout-7378796?utm_source=webapp" opinion_id="7378796">6 Bush (Ky.) 375.
And it has been held in this State that an admission by 'an administrator of an existing debt of the intestate, which the administrator was liable and willing to pay, is competent and prima facie evidence of a new promise, and takes the claim out of the operation of the general statute of limitations, and part payment is universally recognized as such an admission. Hall v. Roberts, cited in Buswell v. Roby, 3 N. H. 468; Hodgdon v. White, 11 N. H. 211. See 3 Redf. on Wills 289, note. But we find no case to the effect that such a recognition of liability, either by the deceased debtor or his representatives, will avail against the statute which, for the purpose of facilitating the speedy settlement of estates, requires that an action against the administrator shall be commenced within three years after the original grant of administration ; and such a holding, it seems to us, would be contrary to the policy of the law. In this case the plaintiff had abundant time in which to begin his suit before the expiration of the three years, and we think the new promise of the defendants must be regarded merely as a promise to pay if the plaintiff’s claim be enforced within the period limited by the statute.
The third question is, Upon the facts stated in the replication, is the action barred? And the answer is, Clearly not. The replication states that the writ in this case was made and dated the 23d day of August, 1871. This was some two weeks prior to the expiration of three years after the original grant of administration upon C. W. Brewster’s estate.
The date, and not the service of the writ, indicates the time when an action is commenced. Society for Propagating the Gospel v. Whitcomb, 2 N. H. 227; Clindenin v. Allen, 4 N. H. 385; Robinson v. Burleigh, 5 N. H. 225; Graves v. Ticknor, 6 N. H. 537; Davis v. Dunklee, 9 N. H. 545; Hardy v. Corlis, 21 N. H. 357.
The result of these considerations is, that the brief-statement sets up no defence to the plaintiff’s declaration.
By the provisions of the case, new pleadings may be had: otherwise, there must be judgment for the plaintiff for the balance due upon the obligation of the defendants’ testator, with interest from the 12th day of May, 1870.