146 N.Y. 137 | NY | 1895
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The authorities establish that an executor or administrator may state an account of dealings of the testator or intestate, and that an action or an insimul computassent may be maintained against him in his representative character to recover a claim ascertained and adjusted on such accounting. (Segar v.Atkinson, 1 H.Bl. 103; Ashby v. Ashby, 7 B. C. 444.) When the account relates to transactions between the executor or administrator and another party, upon claims not existing at the death of the decedent, although they grow out of matters connected with administration, the action lies only against the executor or administrator personally. In the one case the judgment is de bonis testatoris, and in the other de bonispropriis. (Reynolds v. Reynolds, 3 Wend. 244; Gillet v.Hutchinson's Admrs., *141
24 id. 184.) The complaint is not demurrable, therefore, on the ground that an action on an account stated will not lie against an executor in his representative character upon an accounting between him and the plaintiff. It is important, however, in determining whether the complaint states a cause of action upon an account stated, to consider the essential characteristics of that liability. The cause of action in such case is not the obligation originally created when the items of indebtedness arose. It is the agreement of the parties made after the transactions constituting the account that a certain balance remains due from the one to the other, and a promise of the party found to be indebted to pay to the other the sum so ascertained, and in suing in this form of action it is unnecessary for the plaintiff to set forth the subject-matter of the original debt. (1 Ch. Pld. 358.) The doctrine of account stated, and the remedy thereon, is said to have been founded originally on the practice of merchants (Sherman v. Sherman, 2 Vern. 276), but its scope has been extended so as to embrace an account with items on one side only, and when the transaction has no relation to trade and there were no mutual dealings. The stating of an account is in the nature of a new promise. (Holmes v. D'Camp, 1 Jo. 34.) The complaint in this action neither avers that an accounting has been had between the parties in respect of the alleged debt set forth in the verified claim presented to the defendant, nor that any balance was ascertained or found to be due from the testatrix to the plaintiff, nor that the defendant had promised to pay any amount whatever, nor are there any averments of equivalent import. (See form of count, 2 Ch. Pld. 90.) These essential facts are left to be inferred from the allegations that the verified claim set forth had been presented to the defendant pursuant to notice, and that, although a reasonable opportunity for examination into its validity was had, the executor had not disputed or rejected it. The complaint is based upon the assumption that an omission by an executor to reject or dispute a claim presented to him against the estate he represents, pursuant to notice, justifies an *142
inference of all the facts which are essential to constitute a cause of action on an account stated. It is true that under the present system of pleading a complaint on demurrer is deemed to allege what can be implied by reasonable intendment from the allegations therein. (Marie v. Garrison,
In the present case, even if the general rule was applicable, the nature of the claim presented to the executor rebuts any inference of assent by the executor to its correctness, arising from mere silence, and prevents any implication from such silence of a promise on his part to pay the claim presented. *143
The claim on its face, in connection with other facts averred in the complaint, shows presumptively that in part, at least (and for all that appears it may be the greater part), was barred by the Statute of Limitations at the death of the testatrix. An executor can neither by his promise or acknowledgment, oral or written, revive a debt against the estate of his testator barred by the Statute of Limitations (Bloodgood v. Bruen,
We think the demurrer to the complaint was well taken and the judgments below should be reversed, with costs, with leave to the plaintiff to amend her complaint if so advised.
All concur.
Judgments reversed. *145