49 Ky. 62 | Ky. Ct. App. | 1849
delivered the opinion of the Court.
This suit was brought against an administrator and his sui-eties, on his administration bond, by one of the distributees, as relator, for his distributive portion of the intestate’s estate. The sureties filed a plea alleging that they were only the securities of the administrator, and were sued as such, and that five years had elapsed since the execution of the bond, and since the youngest of the heirs and distributees of the decedent arrived at twenty-one years of age, before the institution of plaintiif’s action. To this plea the plaintiff replied, that the administrator had not settled his accounts with the County Court until within a period of five years next preceding the institution of his action. A demurrer to this replication was sustained by the Court, and a judgment rendered for the sureties in bar of the plaintiff’s: action; to which judgment the plaintiff prosecutes a writ of error.
The question in this case, arises under, the act of 1838, (3 Stat. Law, 558,) limiting the time of bringing actions against sureties. The second section of the act provides, that from and after the first day of July, 1838, sureties, their executors, administrators, heirs and devisees, shall be discharged from all liabilities to distributees, devisees and wards, on administration and guardian bonds, when five years shall have elapsed without suit, after the youngest of the distributees, devisees, oi wards have attained full age.
Is the plea good under this section, or should it have contained an avei'ment, that at the time of the granting administration, and when the bond was executed, some of the distributees were under full age? It is contendec
The statute evidently contemplates a limitation to actions against sureties, on bonds and obligations of every description. The second section is the only one that applies to administration and guardian bonds. The third section, which is most general in its terms, only embraces all written obligations, other than those provided for in the first and second sections of the act. The only limitation which the statute provides to actions on administration and guardian bonds, is that of five years, contained in the second section. It must be regarded as applying as well to cases where the distributees are all of full age, ah to those where some of them are infants when administration is granted ; otherwise, the statute will provide no limitation in the class of cases first mentioned. In this class of cases, the suit must be brought within five years after the execution of the bond, because the distributees labor under no disability. In the other class of cases, five years are allowed after the youngest of the distributees have attained full age, on account of the disability of infancy.
The limitation in the other sections of the act is seven years, and from this it is argued, that the Legislature did not intend, by this section, to shorten the time to five years, except when infancy intervened. But it may be remarked, in reply to this argument, that the section expressly applies to a case where the youngest distributee should attain full age one day after the execution of the bond, which would virtually reduce the limitation to five years. So that it may fairly be inferred it was the intention ofvthe Legislature, in all actions against sureties on administration bonds, to make the limitation five years» !ithe time, however, not to
As the plea, in this ’case,- showed th;át ‘more than five years had elapsed after the bond was executed, and also contained an averment that the action had not been commenced within five years after the .youngest of the distributees had attained full age-, it is a good plea, whether the distributees were all of full age, or some of them were infants, when the bond was executed-.
The replication does not contain a sufficient answer to the plea-. A distributee has a right to sue-, whether a settlement has been made by the administrator or notv An administrator might not settle with the County Court at all, and if his failure to do so- b'ould prevent the operation of the statute, it would haVe but little efficacy in limiting the time of bringing actions against the sureties in his bond. A suit may be Commenced by a distributee, for his shar.e of the personal estate, against the administrator, át any time after the expiration of nine months from the grant of administration. The demurrer to the replication was, therefore, properly sustained.
Wherefore, the judgment is affirmed;