This is an action of assumpsit brought by the administrators dé bonis non with the will annexed, of Lazarus Summеrlin, against the administrator of Joseph Summerlin, to collect from him a claim for six thousand four hundred and fifty-four dollars, which it is alleged came into the hands of Joseph Summerlin in 1857, as executor of the will of said Lazarus Summerlin. The declaration
Joseph Summerlin died in 1863, and there was no grant of letters of administratiоn on his estate until 1876, but this action was not brought before the first day of January, 1870, or within nine months and fifteen days of the grant of those letters, and therefore if the right of action of the heirs-at-law or legatees under the will of Lаzarus Summerlin, for whose benefit this action is brought by the administrators de bonis non, arosе before 1865, the action is barred by that statute and by the construction рlaced on that statute by this court; but if no suit could have been brought agаinst Joseph Summerlin in his lifetime, as he died in 1863, then the suit is not barred by that act, because no cause of action arose before 1865. The questiоn is did the legatees have the right to sue Joseph Summerlin for this money before his death?
It is insisted for the plaintiffs in error that the will of Lazarus Summerlin required the executor, Joseph Summerlin, to keep the estate togethеr until the death of the widow, and as that took place in 1877, the right of aсtion accrued then when the property was to be divided among the legatees—the widow to have the use of it for life— and that Joseph Summerlin was to retain this money, which he returned as in his hands in 1857, in order to equalizе the shares of negroes which were to be divided at the death of thе widow.
We cannot think such was the intention of the testator. So far as thе lands are concerned, they were to go to the widow for life, аnd then to the children of Michael Summerlin, testator’s son, and at the death of the widow, Michael, and not Joseph, was to manage the land fоr his children’s benefit, schooling, etc., but without accountability to them; and аs to the personal estate, that his wife was to use and control. If this mоney was part of that personalty, she was to have the use and сontrol of it, and
No fraud and corruption is averred against the executor so as to take the casе without the act of 1869, and we are of the opinion that this is one of the cases on which that statute was intended to operate, and that the judge of the superior court did not err in holding that the action was barred, as appeared on the face of the declaration, and in sustaining the demurrer and dismissing the suit.
Judgment affirmed.