200 Mass. 599 | Mass. | 1909
This is a bill in equity to recover the
It is the rule in this Commonwealth, in England, and in most of the American States, that an executor or administrator is not bound to plead the general statute of limitations. Scott v. Hancock, 13 Mass. 162. Baxter v. Penniman, 8 Mass. 133. Emerson v. Thompson, 16 Mass. 428. Slattery v. Doyle, 180 Mass. 27. Field v. White, 29 Ch. D. 358. Midgley v. Midgley, [1893] 3 Ch. 282. Shreve v. Joyce, 7 Vroom, 44. Johnson v. Beardslee, 15 Johns. 3. Hord v. Lee, 4 T. B. Mon. 36. So, too, it is a general doctrine that payment by one of two or more joint executors will have the same effect as payment by all. Such is the usual effect of an authorized official act of an executor, so far as it relates to the property of the estate. But the rule that an executor or administrator is not bound to plead the statute of limitations is an exception to the general rule that it is his duty to protect the property and interests of the estate under his charge. It is universally agreed that it ought not to be extended. An executor or administrator is liable for a devastavit, if the estate suffers through his failure to plead the statute of frauds. Field v. White, 29 Ch. D. 358. An executor has no right to create a liability against the estate by making a new and independent contract to pay an alleged debt.
The above mentioned exception relative to the statute of limitations is founded upon the theory that an acknowledgment and new promise does not create a new liability, but continues an old one that otherwise might not be enforceable. There is some ground for holding that, where a debt has been barred by the statute before the death of the debtor, an administrator or executor should not be permitted to revive it, by a partial payment, or a new promise or acknowledgment of any kind. Although the distinction has not been established in this Commonwealth between the effect of a payment and acknowledgment by an executor or administrator of a debt which was not barred at the time of his appointment, and the payment of a debt that was barred in the lifetime of the debtor; and al
It has never been decided in Massachusetts that a payment made by one of two executors against the objection of his co-executor, upon a note Avhich was barred by the statute in the lifetime of the testator, Avould revive the note, nor has it been so decided in England. The lords justices of the court of appeal, in a late case, preferred to leave this subject open for future consideration. Midgley v. Midgley, [1893] 3 Ch. 282.
But if we assume, without deciding, that these doubtful questions might be answered in favor of the plaintiff, she has another difficulty in her way. The payment was the joint act of the mother and daughter, and was made to the mother as the administratrix of her son’s estate, entirely for her personal benefit as one of his two heirs at law. In her trust relation to the estate
If these two executors had jointly paid to the mother the whole amount of the notes, and had sought to have the payment allowed in their account in the Probate Court, the other executor might have objected, and set up the contention that the notes were barred, and not a proper charge against the estate. As the payment by an executor or administrator of a debt to himself is always reviewable by the court, and as the court will, when different joint executors make different pleas to a claim against an estate, proceed upon the plea which is most favorable to the estate (2 Wms. Ex., 8th ed., 1953 ; Midgley v. Midgley, [1893] 3 Ch. 282), the court would feel obliged to sustain the objection. A court of equity will not give to the joint payment and acknowledgment of these executors an effect that the Probate Court would not give to it, if the question arose there upon an objection of the defendant Manson that the claim could not be allowed against the estate.
The presiding judge rightly found that there were no payments upon these notes in the lifetime of the testator. His son
jDecree affirmed.