Young v. Cook

| Miss. | Dec 15, 1855

FisheR, J.,

delivered the opinion of the court.

This was a petition filed by the appellee against the appellant, as executor of Robert Shotwell, deceased, in the Probate Court of Lowndes county.

The petition alleges that Viranda Cook, having made her will, and appointed Robert Shotwell executor thereof, died in the early •part of the year 1835; that the said testatrix, by her said will, bequeathed to the petitioner, who was her brother, and at the time a minor, a certain slave, to be delivered to him on attaining his majority, with power in the said executor, if he thought it proper, to sell the said slave, and to place the money at interest until he arrived at full age, when the same was to be paid over to him; that the executor sold the slave for $340, in the year 1836, and reported the sale to the Probate Court, and that the same was confirmed. It further appears that the petitioner, having arrived at majority in the spring of 1845, received from the said executor the sum of $313.66, and executed to him a receipt in full of said legacy.

It also appears that Shotwell died in the year 1852, and that the petitioner, some short time thereafter, discovered that a much larger sum was due to him than he received in 1845 : that petitioner is an ignorant, illiterate man, and was not aware of his rights in said estate, until he was made acquainted therewith through the agency of others, after the death of Shotwell; and this is assigned as the reason for the long delay in commencing proceedings to cancel the said receipt, and to collect the alleged balance due on account of said legacy.

The question as to the jurisdiction of the Probate Court to grant the relief sought by the petitioner, may be passed over, as its decision is not absolutely necessary, under the view which we have taken of another point in the case.

It must be admitted, that whatever debt Shotwell owed the petitioner, he owed him as an individual, and not in his character of executor. It was a personal demand against Shotwell, and due when the petitioner attained his majority. Shotwell' was then liable to a suit at law, under the statute, on refusing to make payment according to the provision contained in the will. Being a special legacy, and in all respects a money demand, like any other debt, the Statute of Limitations commenced running from the time the cause of action accrued, and is a complete bar, unless something is shown to take the case out of the operation of the statute. Fraud and concealment alone, will not be sufficient for this purpose, unless the concealment was such as to prevent the petitioner, by the use of ordinary diligence, from'discovering his rights. It cannot be pretended, for a moment, that there was any concealment, because the records of the court, open to the inspection of the world, showed the sale of the slave, the date of the sale, the price for which she sold, and the will under which the petitioner claimed. His information, at the end of seven- years, was obtained from this source. Why was it not obtained at the end of one or two years ? He says that he is an ignorant man, and could not, therefore, if he attempted an investigation, ascertain wherein he had been injured or wronged. * The answer to that position is, that the law has not provided for such a case, and perhaps, so long as it can only prescribe or lay down general rules, it never will. It is impossible to foresee the evil which would result from such an exception engrafted upon the Statute of Limitations. Ignorance, would always be the excuse urged by those who had been tardy in asserting their rights.

But it is said, that this was a settlement made with the petitioner, almost immediately after he became of age, and that the executor must show the settlement to have been in all respects fair, and made upon a full disclosure of all the facts. The general correctness of this proposition may be admitted. If the petitioner had within a reasonable time, interposed his objection to the settlement, the rule would have applied to his case, and under its operation he could hare obtained proper and ample redress. But what is a reasonable time ? The answer is, the time in which the statute constitutes a bar to the action; for the plain reason, that it commenced running the moment the cause of action accrued; and nothing is shown to stop its running. If complaint had been made within this time, the. executor might have been prepared with evidence to defeat the claim. If he were now living after this lapse of time, he might not be able to make this proof, though it may have once existed. The statute is founded in a wise policy, though justice may occasionally be defeated under its operation. Society has an interest in certain and fixed rules of law, which can be easily understood, and applied to the common affairs of life. Exceptions in a statute, like exceptions to general rules, often render the law obscure or difficult of application. If the exception is only such as the statute itself has made, the danger of being misled is trifling when compared with judicial exceptions, arising out of what is supposed to be the equity of the statute. It may be said, however, that Shotwell was under the will a trustee, and that the statute does not run in such case. This is true, in regard to express trusts, and this may be admitted to be of that character. But it is only true, so long as the character of trustee and cestui que trust exists. By the settlement made in March, 1845, both parties treated the trust as satisfied. The petition, however, says, that the trustee div-ested himself of his character of trustee, by fraudulent means. Admitting this to be true, the fraud, to avail the party, must have been such, that he could not by the use of reasonable diligence have discovered it, within the period prescribed by the statute. He could have made.this discovery, as well in one year after the commission of the fraud, by proper diligence, as in the time alleged in his petition.

Decree reversed, and petition dismissed, except as to such rights as the petitioner may claim, as a distributee in the estate; for which purpose the cause may be remanded.