6 Watts 379 | Pa. | 1837
The opinion of the Court was delivered by
The first error assigned, presents the question whether the statute of limitations is a bar to the recovery of a distributive share of the personal estate of an intestate, where six years from the time when the distributee might first have demanded the same from the administrators of the intestate, have run before the institution of the action. The decision of this court, and the
Anterior to the passage of the act of limitations, which was on the 27th of March 1713, the orphans’ courts of the state were invested with full power to call administrators to account for the personal estates of their intestates, and upon investigation and due consideration thereof, to decree a just and equal distribution of what remained in their hands, after payment of the debts and funeral expenses, to and among the next of kin in the manner prescribed by the existing intestate laws. Now it is perfectly mani
Neither can it make any difference, whether the trust be created by the act or agreement of the parties, or by the act of the law, provided the trustee has expressly consented, to take upon himself the character of a trustee, as in the case of administrators, for all come alike within the principle of the exception. In cases, however, of constructive trusts, resulting from partnerships, agencies and the like, the statute has been held to apply. Robinson v. Hook, 4 Mason 139, 150, 151, 152, 153, and the authorities cited in the margin. Farnam v. Brooks, 9 Pick. 243. And it may be, that the statute of limitations would protect a trustee in any case, against claims growing out of the trust, and not secured by deed or covenant under seal, where six years have run after the relationship of trustee and cesiui que trust has been dissolved, and the latter has acquired a right to sue the former at law. But it is clear, that as long as the cestui que trust has no right to commence a suit, without first doing some act on his part, the statute cannot run against his claim: in this respect, he must be considered as standing on the same footing with that of any other person. For instance, if a sum of money be made payable to the plaintiff within a limited time after request, he cannot be said to have a right to sue, until he has made a demand, and the time appointed for the payment of the money thereafter has elapsed. And no rule of-law seems to be better settled, than that the statute does not begin, until the plaintiff’s right of action has accrued, or he has acquired a right to sue. Little v. Blunt, 9 Pick. 490-1.
And upon this ground it was ruled by this court, in Foster v. Jack, 4 Watts 334, that the statute of limitations did not commence running against the claim of an attorney at law for professional services, until after demand of payment made of his client, or the relation of attorney and client had been dissolved. Now in the
There is nothing in the second error which requires notice: that it cannot be sustained is too plain to admit of argument. Neither do we perceive any error in the third matter excepted to. It was right to allow the interest, seeing the defendant did not even attempt to show that he or his colleague, for whom he had made himself accountable by joining with him in settling their administration account, had not used the money sued for: but the very circumstance of their not paying or offering to pay the money, upon its being demanded in due form, was evidence to prove that they had actually used it, or otherwise they would have offered to pay the principal at least. In justice, therefore, they are bound to pay the interest as well as the principal.
As to the fourth and last error, there does not appear to have been any evidence given to the jury on the trial, showing that John Patterson, the other administrator, was the guardian of the plaintiff’s wife at any time, and that as such he had any charge of either her person or estate: nor was any evidence given going to prove that he had maintained or supported her out of his own estate, or that he had expended the money in question for that purpose: no account of the kind was produced. All the instruction, therefore, asked of the court to the jury, by the counsel for the defendant below, in relation thereto, was without the necessary ground to warrant or render it proper.
Judgment affirmed.