11 N.H. 208 | Superior Court of New Hampshire | 1840
There is evidence tending to show that the services rendered, and articles furnished, by the claimants, were regarded at the time, not as a matter of benevolence, or gift, but as creating a debt ; and the administrator is of opinion that claims still exist, which ought to be paid. The greater portion of the claims, however, accrued more than six years before the decease of the intestate j and the principal question is, whether the administrator is bound to insist upon the
The abstract in Thompson vs. Peter, 12 Wheat. R. 565, is, “An acknowledgment of the debt by the personal representatives of the original debtor deceased will not take the case out of the statute of limitations.” It may be doubted whether the opinion of Mr. Chief Justice Marshall sustains this as the decision. He says, “ The original administrator did acknowledge the debt, but said there were no funds in hand to pay the debts of the testator.” “ The conversation with one of the present defendants was still farther from being an acknowledgment.” He proceeds to say, that had this been a suit against the original debtor, these declarations would not have been sufficient, but that it was brought against his personal representatives, who might have no knowledge; and 'adds, “ Declarations against him have never been held to take the promise of a testator or intestate out of the act. Indeed the contrary has been held.”—This may have been intended as an assertion that a mere acknowledgment of the debt, by the personal representative, was not sufficient to take the case out of the statute ; but the decision evidently proceeds upon the ground that there had been no such acknowledgment.
It has, however, been ruled in England, at nisi prius, that a mere acknowledgment of the debt, by an executor, will not take the case out of the statute ; but that there must be an express promise. Ryan & Moody 416, Tullock vs. Dunn. And it was further ruled, in the same case, that an express promise by one of two executors was not sufficient; which would seem to be somewhat adverse to the spirit of other decisions there, founded upon an admission, or payment, by one of two joint debtors. But the distinction may be sound.
This court has held that evidence of admissions made by an administrator is competent to prove a new promise. Hale
A letter from an administrator, written nearly five years after the death of the intestate, referring to a demand made upon him, saying that he expected to be in the city in a few days, and would settle the matter in some way, has been held sufficient to take the case out of the statute. 5 Binney’s R. 573, Jones vs. Moore.
In Johnson vs. Beardslee, 15 Johns. R. 3, the court held that a promise by executors would take the case out of the statute, when the action was against the heirs and devisees, the executors being two of the defendants.
It has been decided in Massachusetts that a new promise by an executor or administrator, within six years, takes the case out of the statute of limitations, as well in an action against an administrator de bonis non, as against the original executor or administrator. 16 Mass. R. 429, Emerson vs. Thompson.
And in Atkins vs. Tredgold, 2 Barn. & Cres. 23, although it was held that the payment of interest by one maker of a note did not take the case out of the statute as to the executors of another, no doubt was expressed of the power of the executors to do so.
Lord Hardwicke said that no executor was compellable, either in law or equity, to take advantage of the statute of limitations, against a demand otherwise well founded. 1 Atkins 526, Norton vs. Frecker.
This general principle seems to be fully settled by the authorities already adverted to. Vide also Angell on Lim. 278; Williams on Executors 1196; 13 Mass. R. 164.
It has been decided that an executor has no right to retain for a demand barred by the statute due to himself personally, notwithstanding there was a provision in the will for the
But a further question is suggested by the case Mooers vs. White, 6 Johns. Ch. Rep. 360, 389, where Mr. Chancellor Kent expressed the opinion, that the heirs, or persons interested in the real estate, might appear before the surrogate, or judge of probates, and oppose the application of the executor for a sale of lands, and might interpose the statute of limitations, in the same manner as if they were sued by the creditor ; and that to warrant an order for a sale of the real estate, for the payment of debts, it must be shown that there were debts, not barred by the statute of limitations, beyond the amount of the personal estate. There were other points, however, upon which that case turned, and the decision of it is predicated in no small degree upon the statutes and practice of New-York. So far as the reasoning is based upon general principles, it is an authority here, entitled to the highest respect; but we are of opinion that we cannot adopt the conclusion just stated, under our statutes, and the practice prevailing in this state. If we admit the power of the executor or administrator to remove the. bar of the statute of limitations in any case, by his acknowledgment, or promise, we cannot well make a distinction between the personal and real estate, and deny the existence of the power where its exercise may affect the latter, while we admit it if it will affect the personal alone.
By our statutes, the real estate of every person stands charged with the payment of his just debts. N. H. Laws 101. And during the lifetime of the debtor, a creditor who has obtained execution may levy upon the real or personal estate, at his election. On the decease of the debtor, the executor or administrator cannot apply the real estate to the payment of debts, if the personal is sufficient for the purpose,
When the estate is not represented insolvent, the administrator may proceed at once and pay the debts. The authorities before cited show that he is not obliged to insist on the statute of limitations as a bar. By his acknowledgment or promise he may remove the bar, so that he cannot insist on it; and if he cannot do so, it is not readily perceived how the heirs are tó take the defence of a suit against him, and to do it in his name. Clearly, then, he may apply the personal estate to the payment of debts which are barred by the statute, if he thinks proper. He does it at the peril of losing the amount, if he is not able to show by reasonable evidence that the debt was just, notwithstanding the lapse of time ; for the statute furnishes prima facie evidence against the allowance of the claim, and the heirs may object to the allo wance of the amount to him, on the settlement of his administration
If, however, evidence should be offered to the court, tending to show that the demands, for the payment of which the administrator desired to sell the real estate, had been paid • or if they were so stale that, aside from the statute of limitations, a strong presumption arose against their validity, that would form a sufficient ground upon which the court in its discretion might well refuse to grant a license to sell real estate for their payment. 6 Johns. Ch. Rep. 369, and cases cited; 13 Mass. 162. Such a state of facts might furnish good reason for disallowing the amount in the administration account, if the administrator had paid claims of that description out of the personal estate.
The application for a sale might itself come too late. 3 Johns. Ch. R. 376; 4 Wend. R. 436. By the statute of July 2, 1822, no action shall ever be sustained against an executor or administrator, unless the demand, whether payable or not, was exhibited within two years from thd' original grant of administration to the executor or administrator acting as such at the time of the exhibition; but every remedy for the recovery thereof shall be forever barred. 1 N. H. Laws 338. And by the statute of Jan. 2, 1829, “ no action shall be brought against any executor or administrator, upon, any claim whatever, existing against his testator or intestate at the time of his decease, unless such action shall be commenced within three years after such cause of action shall have been exhibited to such executor or administrator.” 1
If an executor or administrator should refuse or neglect to avail himself of the defence furnished by the statute provisions limiting actions against him, (which were intended to secure the speedy settlement of estates.) it would furnish a good reason for disallowing any sum he might have paid to satisfy the judgment recovered. And the judgment might not avail to charge the land, in the hands of the heir or de-visee. 13 Mass. R. 165; 15 Mass. R. 61, ex parte Allen. The non-payment of a judgment so recovered cannot avail to charge the sureties of the administrator, in a suit on the administration bond. 3 N. H. Rep. 491; 15 Mass. R. 6.
If the circumstances were such that the court would not allow the amount in the administration account, if paid by the administrator out of the personal estate, we should doubtless refuse to grant him a license to sell real estate, in order that he might make the payment.
But the bar furnished by the general statute of limitations, cannot be, of itself, a sufficient ground upon which to disallow the amount, if paid, or upon which to refuse a license for the sale of real estate in order to make the payment, un
So long as the administrator may by his admissions take a demand out of the statute, and charge the personal estate with the payment notwithstanding the lapse of time, the course to be pursued in case the estate is represented insolvent shows that his admission may equally affect the real, with the personal, estate ; for the commissioner cannot make the allowance of a claim depend upon the question whether there will be sufficient personal estate to pay all the debts. This cannot be ascertained until his duties are performed. And if he allows a greater amount than the personal estate will pay, the real estate must be sold to make up the deficiency, without any enquiry whether a portion of the claims were or were not within the statute, had the administrator seen fit to have relied upon it and objected to their allowance. :
With respect to the claims for which the license is sought in this case, although some portion of them arose several years before the decease of the intestate, another portion is not within the statute, and these portions are so connected that the latter may have some operation upon the consideration to be given to the former. The claims are for a continued care and attendance upon the intestate, for several years prior to her decease. There is evidence to show, that a few years before her death she regarded this as a service for which compensation ought to be made, and declared that the claimants should be paid. There has been no delay since her death in making the claim, so that the administrator could avail himself of the lapse of time since his appointment to defeat an action. And the appellants, under these circum
The exceptions which they have taken must, therefore, be overruled.