77 Tenn. 74 | Tenn. | 1882
delivered the opinion of the court.
The original bill in this case was filed to administer the estate of E. T. Keel, deceased, as an insolvent estate — the insolvency having been suggested. In fact, however, as may be inferred from the allegations of the bill and subsecpient proceedings, the estate is not insolvent, though the allegations are that the personal estate will be insufficient to pay the debts.
Sometime after the bill was filed, to-wit, on the 24th of February, 1881, the administrator filed what is styled a petition in the cause against Samuel Keel, a son of the intestate and an heir and distributee of
The decree was against said Samuel for the balance reported against him on the second account, and in this respect there was no appeal.
The complainant specially 'appealed from that part •of the decree holding the demand as to the first account barred' by the statute of limitations, and denying the lien claimed for its payment upon the defendant’s share of the realty descended. The defendant appealed from that part of the decree allowing the administrator to retain his (defendant’s) distributive share of the personalty in payment of the barred account.
The account in question was undoubtedly barred by the statute of limitations of six years. It accrued, according to the allegations of the petition and all the proof, on and before the 3d of December, 1873, when it was finally closed. The other account was opened several • years afterwards, and had no connection with the first. The intestate died 12th October, 1879. Administration was granted November, 1879, and the petition in this case filed the 24th February, 1881. This petition, however it be regarded, was the beginning of the suit on the account; we express no opin
No allegation was made in that bill in regard to^ those debts, and could not properly have been made, for while au insolvent proceeding contemplates that all the creditors should be made or become parties, it does not contemplate that the debtors of the estate should also be made parties for the purpose of collecting the debts. So that the insolvent bill was not the beginning of a suit on the account; but even if it be so considered, the result is the same, as it was not filed until the 21st of April, 1880. There was no attempt to show a new promise or otherwise take the account out of the statute.
The chancellor was, therefore, clearly correct in holding that the suit as to the first account was barred. It seems to us equally clear, however, that his holding that the administrator might, nevertheless, appropriate the distributive share of the defendant in the personal estate of the intestate to the payment of the account, is erroneous. We do not perceive the principle upon which it can be held that while suit upon the claim is barred by the statute so that there can be no judgment or recovery upon it, yet the administrator may appropriate the effects of the defendant which he holds in trust for him, to the payment of
But the opinion makes not the slightest allusion to the statute of limitations as a defense to the note. It is not clear that the question was so presented or in issue, that the court could have adjudged the liability of the maker of the note, or that it intended to do so.. The opinion was only giving reasons why the credits claimed by the guardian should not be allowed, and had given ample reasons, independent of the remark referred to, and then assumed as an additional reason, that the note could be realized out of the distributive share of the maker. But conceding that the opinion intended to adjudge that the note of C. P. Gooch should be deducted from his distributive share in the account which was prayed for and ordered between the distrib-utees, still such an adjudication might well rest upon wholly different grounds from the one indicated.
Whether the court made the adjudication upon the ground that C. P. Gouch had not pleaded the statute, or had admitted his liability and willingness to pay the debt, or that the so-called “note”'was a “bill •single” under seal, made before the abolishment of private seals, as to which no limitation applied; or that it had been renewed, or that there had been a promise to pay within the period of limitation, or that the original note was payable to the idiot, the opinion
One species of property can no more be taken than another to pay a debt which the law does not recognize as valid security. The defendant’s distributive share in his father’s estate is as much his property as any other he may own. The case of Caldwell v. Powell, 6 Baxt., 82, has no application. That case was decided upon the ground, in substance, that there had been an agreement to set off the mutual demands before either was barred, and this was enforced, although before suit was brought the time necessary to bar the set-off had elapsed.
Finally, it is insisted that the defendant should be held liable for the amount of the account as an advancement, but is distinctly charged to be a debt, and so to have been regarded by both parties.
The decree of the chancellor will be reversed, with costs, upon the point indicated.