a certain day, and provides certain remedies upon a failure to make such report, the statute begins to run immediately upon a failure to perform by the day named.1 In all such cases, the decisive question is, When did the plaintiff's right of action first accrue? and from that date the statute runs. 1 Duckworth v. Roach, 8 Daly (N. Y. C. P.), 159. 25 CHAPTER XVI. EXECUTORS AND ADMINISTRATORS. SEC. 188. Executor may pay Barred Debts SEC. 194. When Statute has begun to run or not, in his Discretion. 189. Effect of Statute when Creditor is Executor or Administrator; when Debtor is Executor, &c. 190. Acknowledgment by an Ex ecutor. 191. What Acknowledgment by an Executor is sufficient. 192. Where Executor is also Devisee in Trust. 193. Where Statute has run against Debt before Testator's Death. SEC. 188. Executor may pay Barred Debts or not, in his Discretion. - When the remedy for a debt is barred by lapse of time, an executor or administrator is nevertheless not obliged to take advantage of the statute, but may at his discretion satisfy the debt. "No execu tor," said LORD HARDWICKE, "is compellable either in law or equity to take advantage of the statute of limitations against a claim otherwise well founded." In fact, it has been treated as almost a duty in some cases for an executor to satisfy in that way, in his representative char 1 Norton v. Frecker, 1 Atk. 524; Fairfax v. Fairfax, 2 Cranch (U. S. C. C.), 25; Walter v. Radcliffe, 2 Desau. (S. C.) 577; JACKSON, J., in Scott v. Hancock, 13 Mass. 162; Woods v. Elliott, 49 Miss. 168; Ritter's Appeal, 23 Penn. St. 95; Biddle v. Moore, 3 id. 178; McFarland's Estate, 4 id. 149; Fritz v. Thomas, 1 Whart. (Penn.) 66; Hodgdon v. White, 11 N. H. 208; Pollard v. Sears, 28 Ala. 484; Amoskeag Mfg. Co. v. Barnes, 48 N. H. 25; Emerson v. Thompson, 16 Mass. 431; Tunstall v. Pollard, 11 Leigh (Va.), 1; Kennedy's Appeal, 4 Penn. St. 149; Smith's Estate, 1 Ashm. (Penn.)352; Steel v. Steel, 12 Penn. St. 67; Miller v. Dorsey, 9 Md. 317; Batson v. Murrell, 10 Humph. (Tenn.) 301; Simms v. Magruder, 10 Md. 242; Thayer v. Hollis, 3 Met. (Mass.) 369; Chambers v. Fennemore, 4 Harr. (Md.) 368; Payne v. Pusey, 8 Bush (Ky.), 564; Barnwall v. Smith, 5 Jones (N. C.) Eq. 168. While, as stated, an administrator may pay a debt barred by the statute of limitations, yet he cannot pay a debt that accrued under a contract that is void because within the statute of frauds; and if he does so, he is chargeable with devastavit. Baker v. Fuller, 69 Me. 152. The reason for this distinction is that in the one case a legal liability at some time existed on the part of the deceased to pay the debt, while in the latter case no legal liability to pay ever existed, and the executor has no power to render a void contract made by his testator valid. Under the statute in Florida, in a suit against an administrator or executor on an open account, the court should expunge therefrom every item which shall appear to have been due five years before the death of a testator or intestate. Patterson v. Cobb, 4 Fla. 481. acter, the conscience of his testator.1 And LORD HATHERLEY, in overruling a case,2 remarks as follows: "It certainly cannot be considered to be law at the present day, that executors paying a debt against the recovery of which the statute of limitations might be pleaded as a legal bar, render themselves liable to those who are interested in the testator's property." 8 1 Williamson v. Naylor, 3 Y. & C. 211, note (a); Stahlsmidt v. Lett, 1 Sm. & G. 415; Byrd v. Wells, 40 Miss. 711. PARKER, C. J., in Hodgdon v. White, 11 N. H. 208; Scott v. Hancock, 13 Mass. 164. In Mississippi, Byrd v. Wells, ante; Trotter v. Trotter, 40 Miss. 704; and in Florida, Patterson v. Cobb, 4 Fla. 481, it is held that he cannot pay debts that were barred anterior to the granting of administration, but that he may pay those which became barred after he has qualified. Byrd v. Wells, ante. In Kennedy's Appeal, 4 Penn. St. 149, the court held that an executor may pay a just debt, though barred by the statute, and that net payment is valid as against the distributees. 43. cretion, pay debts due to others, the remedy for which is barred by lapse of time. Norton v. Frecker, 1 Atk. 533; Stahlsmidt v. Lett, 1 Sm. & G. 415; Ex parte Dewdney, 15 Ves. 498; Williamson v. Naylor, 3 Y. & C. 211, note (a); Hill v. Walker, 4 K. & J. 166; Williams on Executors (6th ed.), 1664. And further, he may, as might be expected, retain assets of the testator sufficient to pay such debts when due to himself. Stahlsmidt v. Lett, 1 Sm. & G. 415; Coates v. Coates, 33 Beav. 249; Courtenay v. Williams, 3 Hare, 539. And according to the cases cited this is so even when the debts were barred in the lifetime of the testator. Hill v. Walker, 4 K. & G. 166. And his right to payment will not be 2 McCullough v. Dames, 9 D. & Ry. affected by payment of the testator's effects into court. In Woodyard v. Polsley, 14 8 Hill v. Walker, 4 K. & J. 166. See W. Va. 211, it was held that when, in a also Lewis v. Rumney, L. R. 4 Eq. 451. creditor's suit in equity against an adminThe rule may be said to be that an executor istrator and the heirs, the court takes into may, in the exercise of his discretion, pay its own hands the administration of the a debt barred by the statute of limitations, assets by referring the cause to a commisnotwithstanding that the personal estate sioner to take an account of the debts of of the testator is insufficient, and that the the intestate, the statute of limitations effect of such payment by him is to throw ceases to run against the creditor, not a the burden thereof upon devisees of real formal party to the bill, the bill not being estate, upon which the other debts are in in form a creditor's bill from the date of consequence thrown. Lewis v. Rumney, such decree in the case; and that if in such L. R. 4 Eq. 451. In the case last cited a case the statute of limitations has not LORD ROMILLY, Master of the Rolls, re- been specially pleaded nor relied on before marks: "I think it is much to be regret the commissioner, and he failed to recogted that the statute did not destroy the nize the statute, and therefore indorsed no debt, instead of merely taking away the exception upon the report, the appellate remedy for it. The result is that questions court will consider the statute of limitaconstantly arise, and amongst others, tions as out of the case, although the rewhether an executor may not pay a debt port upon its face shows that some of the barred by lapse of time. I am of opinion claims allowed by the commissioner were that in the exercise of his discretion he barred by the statute. Where the testator may do so, and that it does not make the in his will expressly directs the executor slightest difference whether the personal to disregard the statute of limitations, estate is sufficient or insufficient. If it be there can, of course, be no question as to his insufficient, the statute gives the creditor right to pay all just debts without refera remedy against the real estate, but that ence to the question whether they are does not interfere with the discretion of barred or not, even though the statute rethe executor." quires him to plead the statute of limitaAn executor may, therefore, at his dis- tions. Campbell v. Shoatwell, 51 Tex. 27. And he may pay a debt due to himself upon which the statute has run with the same propriety that he may pay one so barred, due to any other person; and neither the heirs or other distributees of the estate have any remedy against him therefor. It has been held that if the surplus of the personal estate, after payment of the debts and legacies, is bequeathed to a residuary legatee, and several creditors, although barred by the statute of limitations, commence actions therefor against the executor, a court of equity will not, on his refusal to plead the statute, compel him to plead it in favor of the residuary legatee; nor can a residuary legatee set up the statute, if the executor refuses to do so, in an action by a creditor to recover his debt. But this rule is subject to the exception that, when it is sought to charge the real estate of the deceased with the payment of debts due from the estate, either the heir, 1 Payne v. Pusey, 8 Bush (Ky.), 564. But it was also held in this case, and such is the general rule, that, if he is unable to realize his debt out of the personal estate, and seeks to make the heirs liable therefor, the heirs may set up any defence to the claim which the intestate could have set up including the statute of limitations. When he goes into a court of equity, the administrator stands like any other creditor for the purpose of making his debt out of the heirs, as he has no right or title in that part of the estate any more than any other creditor of the estate. In Massachusetts, in a case previously cited, Scott v. Hancock, ante, where the period within which an administrator was, under the statute, liable to a suit, no action having been brought against him, the court refused a license to him to sell the real estate to pay debts; and, generally, if all the debts are barred by the statute applicable to administrators, a li. cense to sell will be denied. Wellman v. Lawrence, 15 Mass. 336; Ex parte Allen, id. 58. And, if granted, it will be void, as, by permitting the statutory period to elapse without bringing their action, they lose all lien upon the real estate for the payment of their debt. Heath v. Wells, 5 Pick. (Mass.) 139; Thompson v. Brown, 162 Mass. 172. And the levy of an execution under a judgment obtained in an action brought after the statutory period has elapsed, is void as against the heirs or devisees. Thayer v. Hollis, 3 Met. (Mass.) 369. 2 Castleton v. Fanshaw, Prec. Chan. 100. See also Ex parte Dewdney, 15 Ves. 498, 8 A contrary rule prevails in France under the Code Napoleon, § 2225: "Les creanciers ou toute autre personne ayant interêt à ce que préscription soit acquise peuvent l'opposer encore que le débiteur ou le proprietaire y renonce;" and this rule certainly is more reasonable than that generally adopted by our courts. 3 Briggs v. Wilson, 5 De G. M. & G. 12; Fuller v. Redman, 26 Beav. 614; Alston v. Trollope, L. R. 2 Eq. 205. But under the common practice and decree in England by administration suit it has been held, that, where the bill has been filed and the decree obtained by a residuary legatee, if a creditor applies to prove his debt which is barred by lapse of time, and the executor refuses to plead the statute, and the plaintiff insisted upon doing so, it is competent for the plaintiff or any other person interested in the fund to take advantage of the statute before the master, notwithstanding the refusal of the executor to interpose it. Shewen v. Vanderhorst, 1 Russ. & My. 347; Phillips v. Beal, 32 Beav. 26; Moodie v. Bannister, 4 Drew. 432; Fuller v. Redman, 26 Beav. 614. And in New York it is held that, in taking an account in the master's office, any party in interest may interpose the statute in bar of any claim presented. Partridge v. Mitchell, 3 Edw. (N. Y.) Ch. 180. And in Warren v. Poff, 4 Bradf. (N. Y.) 260, it was held that heirs and devisees might interpose the statute when it is sought to charge the real estate with the payment of debts of the estate. or a devisee, residuary legatee, or any person interested therein, may interpose the statute.1 In Arkansas and in Florida it is held to be the duty of the administrator or executor of an estate to plead the statute where the debt or claim was barred during the lifetime of the intestate, or even where it is so stale as to raise the presumption of payment from lapse of time." But while it is generally held that an executor is not, unless otherwise provided by statute, obliged to plead the general statute of limitations, yet he is in all cases bound to set up, in opposition to a claim, a statute which limits the time within which a claim may be presented for payment, or within which an action shall be commenced against him in his official capacity to enforce a claim. But while the executor at law 1 Partridge v. Mitchell, ante; Warren v. Paff, 4 Bradf. (N. Y. Surrogate) 260; Bond v. Smith, 2 Ala. 660. my's Appeal, 43 Pa. St. 155; Atwood v. R. I. Agricultural Bank, 2 R. I. 191; New England Bank v. Newport, &c. Co., 6 R. I. 2 Rector v. Conway, 20 Ark. 79; Rogers 154; Hooper v. Bryant, 3 Yerg. (Tenn.) 1; v. Wilson, 13 id. 507. 3 Patterson v. Cobb, 4 Fla. 481. See also Briggs v. Wilson, 5 De G. M. & G. 12; Beeching v. Morphew, 8 Hare, 129; Hunter v. Baxter, 3 Giff. 214; for instance, when a legatee, heir, &c., may interpose the statute. 5 Sugar River Bank v. Fairbanks, 49 N. H. 140; Scott v. Hancock, 13 Mass. 162; Wiggins v. Lovering, 9 Mo. 262; Hodgdon v. White, 11 N. H. 208; Hall v. Woodman, 49 id. 295; Walker v. Cheever, 39 id. 428; Amoskeag Mfg. Co. v. Barnes, 48 id. 25; Heath v. Wells, 5 Pick. (Mass.) 140; Lamson v. Schutt, 4 Allen (Mass.), 359; Waltham Bank v. Wright, 8 id. 122; Emerson v. Thompson, 16 Mass. 432. In most of the States, provision is made that claims against an estate shall be presented within a certain time after the death of the creditor, or the appointment of an executor or administrator, or be forever barred; and these statutes must be strictly complied with. Ticknor v. Harris, 14 N. H. 272; Badger v. Kelly, 10 Ala. 944; Pickett v. Ford, 5 Miss. (4 How.) 246; French v. Davis, 38 Miss. 218; Thrash v. Sumwalt, 5 Mo. 13; Walker v. Cheever, 39 N. H. 420; Whitmore v. Foose, 1 Den. (N. Y.) 159; Scovil v. Scovil, 45 Barb. (N. Y.) 517; Barsalou v. Wright, 4 Bradf. (N. Y.) 164; Williams v. Chaffin, 2 Dev. (N. C.) L. 333; Goodman v. Smith, 4 id. 450; Hubbard v. Marsh, 7 Ired. (N. C.) L. 204; Harter v. Taggart, 14 Ohio St. 122; Estate of Smith, 1 Ashm. (Pa.) 352; Dem Kelly v. Hooper, id. 395; Crawbaugh v. Hart, id. 431; Hawkins v. Walker, 4 id. 188; Foster v. Maxey, 6 id. 224; Trott v. West, 9 id. 433; 1 Meigs (Tenn.), 163; State Bank v. Vance, 9 Yerg. 471; Greenway v. Hunter, 1 Meigs (Tenn.), 74; Rogers v. Winton, 2 Humph. (Tenn.) 178; F. & M. Bank v. Leath, 11 id. 515; State v. Crutcher, 2 Swan (Tenn.), 504; Allen v. Farrington, 2 Sneed (Tenn.), 526; Maynard v. May, 2 Coldw. (Tenn.) 44; Hall v. McCormick, 7 Tex. 269; Perry v. Munger, id. 589; Crosby v. McWillie, 11 id. 94; Cobb v. Norwood, id. 556; Coles v. Portis, 18 id. 155; Jennings v. Browder, 24 id. 192; Peyton v. Carr, 1 Rand. (Va.) 436; Mann v. Flinn, 10 Leigh (Va.), 93; Ready v. Thompson, 4 S. & P. (Aia.) 52; Jones v. Pharr, 3 Ala. 283; Starke v. Keenan, 5 id. 590; King v. Mosely, id. 610; Cawthorne v. Weisinger, 6 id. 714; State Bank v. Gibson, id. 814; Badger v. Kelfy, 10 id. 944. See McHenry v. Wells, 28 id. 451; McDougald v. Dawson, 30 id. 553; Bank of Montgomery v. Plannett, 37 id. 222; Walker v. Byers, 14 Ark. 246; State Bank v. Walker, id. 234; Biscoe v. Sandefur, id. 568; Bennett v. Dawson, 15 id. 412; Hill v. State, 23 id. 604; Danglada v. De la Guerra, 10 Cal. 386; Fanning v. Coit, Kirby (Conn.), 423; Rowan v. Kirkpatrick, 14 Ill. 1; Ryan v. Jones, 15 id. 1; Stillman v. Young, 16 id. 318; Peacock v. Haven, 22 id. 23; Wingate v. Pool, 25 id. 118; Mason v. Tiffany, 45 id. 392; Beard v. Presbyterian |