| Mass. | Oct 15, 1856
Two questions are raised upon the agreed statement of facts; the first, whether the claim in suit was barred by the statute of limitations; the second, whether the facts stated sustain the plea of plene administravit.
1. When the defendant filed his bond, as administrator of the estate of Simeon M. Marshall, the provisions of the Rev. Sts. c. 66, § 3, were in force, by which suits against executors and administrators were limited to four years from the giving of the bond. The St. of 1852, c. 294, § 1, provided that where, by the
This court, in King v. Tirrell, 2 Gray, 331, held that the statute of 1852 was not retroactive, and did not apply to actions against executors and administrators who had given bonds before the statute took effect.
The St. of 1855, c. 283, provides that the St. of 1852, c. 294, § 1, shall not apply or be construed to apply to any right of action which had accrued or existed against the deceased person, his executor or administrator, prior to the passage of said act.
This action is upon a promissory note given by the defendant’s intestate 'm the 11th of September 1850, payable on demand. The cause of action on that day existed or accrued against the intestate. The defendant’s bond was given before the St. of 1852 took effect. It is therefore within the rule of King v. Tirrell.
The action is also within the saving clause of the St. of 1855, c. 283. Whether upon this ground alone the action could be maintained, it is not necessary to decide; one good ground for a decision being sufficient.
2. The agreed statement of facts shows conclusively that the estate had not been fully administered, that there was yet real estate of the deceased to the value of a thousand dollars ; and such real estate, the personal being insufficient, was applicable to the payment of the debts of the deceased. Rev. Sts. c. 65, §§ 8, 9. Sections 11-14 of c. 66 apply to cases where the whole of the estate and effects have been exhausted in the payment of debts; that is, obviously, when the whole estate by law applicable to that purpose has been exhausted.
The result must be Judgment for the plaintiff.