The death of a defendant in an action of debt, unquestionably, does not ipso facto abate the suit. It merely suspends it until the legal representativе of the deceased defendant makes himself, or is made, a party.
When this is done the action proceeds, not as a new suit dаting from its revival against the personal representative, but as an action pending from the date of its original institution against his intestatе.
An heir can only be held liable for the debts of his anees
On the death of the original defendant, Josephus Love, a scire facias was ordered to issue to his legal representative when known; and at a subsequent term Mrs. Margaret Love, his surviving wife, as the record recites, and sole executrix of his will and universal legatee thereunder, as appellant allеges in an answer subsequently filed, appeared and made herself a party. On her death the action xvas attempted to be аgain revived against the unknown heirs of Love by publication of a writ of scire facias and the appointment of a guardian ad litem. The case as thus revived coming on for trial, judgment was rendered in fаvor of the plaintiff1. This judgment, however, on appeal by the guardian, was held by this court to be erroneous, because the heirs, against whom no petition had been filed, were not properly before the court. (
The record shows that more than four years had elapsed from the death of Love. It is not pretended that any representative of his estate had been appointed subsequent to the dеath of his wife. In view of these facts the averments of appellee seem amply sufficient to warrant a revival of the suit agаinst the heirs. (Gen. Laws, 13th Leg., p. 110; Paschal’s Dig., art. 5460; Patterson v. Allen, supra, 23; The State v. Lewellyn,
Whether the heirs of Love had in fact inherited the land, as alleged by appellеe, or whether his entire estate had been devised to his wife, as averred in appellant’s answer, was of no moment on the question of the revival of the suit; and on the trial it seems to have been satisfactorily shown that the heirs had inherited lands from their ancestor, as alleged by appellee.
Where the death of the defendant is suggested, and proper diligence is not used by the plaintiff to revive the action, which unquestionably must be determined in view of the peculiar facts and circumstances of each case, the court may no doubt dismiss it for want of prosecution. But while there may have been a want of proper diligence in reviving this case against the heirs, we are not prepared to say that the court erred in not dismissing the case, or holding that it had abated for want of рarties of its own motion, or even if an objection of this character had been interposed by appellee; and it is obviоus, from what has been previously said, the plea of the statute of limitation presented no valid defense, as the suit when revived must be rеgarded as pending from the date of its original institution.
In view of the facts presented in the record, the court did not, in our opinion, err in аdmitting in evidence the written agreement between appellee Henderson and Love, the original defendant. This instrument has been sеnt up with the .record for our inspection. It is certainly not free from inter
The evidеnce shows that the heirs of Love are minors. They are represented by a guardian. The action is for recovery on a demаnd against their ancestor. The suit is maintainable against them in view of the fact that they stand in his placo and are to be regarded аs his representatives. The court, therefore, properly ruled that appellee, not having been called by the opрosite party or required to do so by the court, could not be allowed to testify as to any transaction with or statement by the originаl defendant, Josephus Love, deceased. But, notwithstanding its ruling, the court appeal’s, from the statement of facts, to have pеrmitted appellee to testify, over appellant’s objection, “to the number of broodmares he had received from Lоve; as to the time the stock was taken from him by Love; that they were driven off" by Love without his consent; and that no such conversation аs that related by witnesses Timón and Carson, in relation to the rescission of the contract, between Love and the plaintiff, ever oсcurred at any time after the contract sued upon was made.” The evidence of appellee touching these mattеrs was, as we think, clearly inadmissible, (Paschal’s Dig., art. 6827,) and should have been excluded. And for the error
Reversed and remanded.