to run in favor of the estate from the time when the defendant became such executor de son tort, because such an executor can be sued either at law or in equity as soon as he assumes to act as such,' and his previous acts are legalized by his taking out letters of administration.2 1 In Webster v. Webster, 10 Ves. 93, the plea of the statute of limitations was allowed by an executor whose testator died in 1788, but of whose will no probate had been taken out till 1802, and within six years of the filing of the bill, inasmuch as the defendant, the executor, had possessed himself of the testator's personal estate, and therefore might have been sued as executor de son tort previously to 1802. In a later case, Boatwright v. Boatwright, L. R. 17 Eq. 71, the case of Webster v. Webster has been quoted as an authority, and as applicable to a case where the executor de son tort and the person who subsequently proved the will of a deceased debtor were different persons. In Boatwright v. Boatwright, a testator being at the time of his death, in 1857, indebted to B. on simple contract, gave by his will his real and personal estate to his wife for life, and appointed J. and E. executors. The will was not proved for many years, but the widow took possession of all the property, and paid interest on the debt up to February, 1864. In September, 1870, the will was proved, and then B. filed his bill on behalf of himself and other creditors against the widow and the executors. It was held that the claim was barred by the statute of limitations, and the bill was dismissed. It is to be noticed, however, that this case was mainly decided on the ground that the cause of action had already accrued in the testator's lifetime. In considering the question involved in cases like Webster v. Webster, ante, it is not perhaps foreign to the subject to notice the conflict of opinion as to how far an executor de son tort may be sued alone, without the appointment of a legal personal representative to his testator. In Rayner v. Koehler, L. R. 14 Eq. 263, a bill was thus sustained against an executrix de son tort. In Cary v. Hills, L. R. 15 Eq. 79, however, LORD ROMILLY, M. R., declined to follow Rayner v. Koehler, and in the most recent case of Rowsell v. Morris, Sir G. JESSEL, M. R., has done the re Lovett, L. R. 3 Ch. D. 198), and held that the law of the court was that a suit for administration is defective when the legal personal representative was not before it. This may possibly diminish the authority of cases where a plaintiff has been denied a fresh right on the appointment of a legal personal representative of his debtor, on the ground that he could have proceeded in the absence of such legal personal representative to recover his debt against the executor de son tort; a course which, in equity at all events, will be no longer open to him. A curious question is raised in Boatwright v. Boatwright, ante. In that case it was contended that the debt in question had been revived as to the deceased debtor's realty by payments from time to time of interest on account thereof by the tenant for life of the real estate. And the question was raised (though it was not necessary to be decided), whether, inasmuch as the plaintiff had lost the remedy against the personal estate, and could not therefore properly make the deceased's personal representative a party, he could, in the absence of such legal personal representative, enforce his claim on the real estate. On this point the Master of the Rolls remarked, "I think it must be held, when the point comes to be decided, that if the remedy against the personal estate is barred, and the remedy against the real estate has been kept alive by reason of payment, that the court will find some means of making the real estate liable, although the creditor cannot make the legal personal representative a party to the suit." Banning on Limitations, 231–233. 2 Magner v. Ryan, 19 Mo. 196; Priest v. Watkins, 2 Hill (N. Y.), 225; Shillaber v. Wyman, 15 Mass. 322: Rattoon v. Overbacker, 8 Johns. (N. Y.) 126; Alvord v. Marsh, 12 Allen (Mass.), 603. 1 But it seems that an express promise to pay a debt due from the estate, made by an executor de son tort, is not binding so as to suspend or remove the statute bar, although he is subsequently appointed administrator; for, although a person who undertakes to discharge and settle accounts of the estate of a deceased person before he is appointed administrator will, after his appointment as such, be responsible for his acts, upon the ground that his appointment retroacts to the time of the intestate's death,2 yet this rule is not carried to such an extent that the estate can be prejudiced by his acts. Such executors are liable only to the extent of the assets which come into their hands; and while he is liable as executor, and may use proper means to protect the assets in his hands, yet he possesses none of the rights or powers which an executor derives on account of his office. They are liable to account to distributees or legatees like other executors, and cannot rely on the statute of limitations to protect them from such liability." An executor de son tort of an executor de son tort represents the first testator, so that, where property was held in trust by him, the statute of limitations does not begin to run in his favor until the relationship is ended." 8 SEC. 196. Statutory Provisions relative to Suits in favor of Decedents' Estates. In Maine, provision is made that, in case of the death of a party entitled to bring an action before or within thirty days after the statute has run, and the cause of action survives, an action may be commenced therefor against the executor or administrator within two years after his appointment, and not afterwards; and practically the same provision exists in Vermont, Massachusetts, and Michigan. In Rhode Island, where a person entitled to bring an action dies before the statute has run or within sixty days thereafter, and the cause of action survives, an action may be brought by his executor or administrator within one year after the granting of letters testamentary or administration. In New York,10 where a person entitled to bring an action dies before the statute has run upon the claim, an action may be commenced by his representatives any time within the statutory period, or within one year after the death of such person; and practically the same provision exists in the States of Mississippi, Missouri, Connecticut, South Carolina, Illinois, Arkansas, Colorado, California, Oregon, Florida, Iowa, Kentucky, Nevada, Dakota, Idaho, New Mexico, and Minnesota, except that in the latter State six months between the death of the party and granting administration and six months thereafter are not to 1 Haselden v. Whitesides, 2 Strobh. (S. C.) L. 353. 2 Alvord v. Marsh, ante. 3 Cook v. Sanders, 15 Rich. (S. C.) 63; Hill v. Henderson, 21 Miss. 688; Mitchell v. Lunt, 4 Mass. 654. 4 M'Intire v. Carson, 2 Hawks (N. C.), 544; Miegan v. M'Donough, 10 Watts 5 Hansford v. Elliott, 9 Leigh (Va.), 79. 7 Appendix, Maine, § 88. 8 See Appendix. 9 Appendix, Rhode Island, § 7. 10 Appendix, New York, § 402. be included in computing the statutory period.1 In New Jersey, six months from the time of death is given where the statute has not already run, in all actions of trespass, trover, replevin, debt on simple contract, for arrearages of rent, on a parol demise, account, upon the case, except for slander, and such actions as concern the trade or merchandise between merchants, their factors, agents, and servants. This provision embraces, also, all actions upon sealed instruments, sheriffs' and constables' bonds, and judgments. In Tennessee and Arizona the same period, under the same circumstances, is allowed in reference to all claims. In Indiana,3 eighteen months after the expiration of the time is given in all cases where the person in whose favor a claim existed dies before the statute has run. In Texas, twelve months after the expiration of the statutory period are given, in all cases where the claimant dies before the statute runs, unless an executor or administrator is sooner appointed; but in the latter case, twelve months from the date of such appointment constitutes the limit. In Montana, if the plaintiff in an action dies, and judgment in his favor is subsequently reversed, his heirs or representatives may commence a new action within one year after such reversal. In Georgia, a period not exceeding five years after the death of a party is given within which an action may be brought, if the statute has not already run at the time of his death; and practically the same provision exists in Virginia and West Virginia. In Wisconsin," the fact that there is no person to sue does not extend the time to more than double the period otherwise prescribed by law. In North Carolina, the time during which any contest is pending relative to the probate of a will or the granting of administration is excluded, unless an administration is sooner appointed, and even in the latter case such time is excluded, unless by law a claimant is required to sue him within a shorter period. Except in these States, no statutory provision exists relative to actions in favor of deceased claimants, and the common-law rule prevails. SEC. 197. When Parties in Interest may set up the Statute. While, as previously stated, an executor or administrator is not bound to set up the statute, and cannot be compelled to do so, and no person can set it up without his assent, yet, after a decree has been obtained, any person interested, who takes advantage of the decree, may set up the statute whether the executor assents thereto or not. Before a decree is made the statute applies, and the plaintiff will be barred on lapse of the appropriate length of time after administration. There is a question as to 1 Appendix, Minnesota, § 18. 7 Appendix, North Carolina, § 47. 8 Briggs v. Wilson, ante; Fuller v. Redman, 26 Beav. 214. 9 Higgins v. Shaw, 2 Dr. & War. 356; Alsop v. Bell, 24 Beav. 451, 464; Hollingshead's Case, 1 P. Wms. 742, 744; Hayward v. Kinsey, 12 Mod. 573; East v. East, 5 Hare, 348. how far an executor or administrator is liable as for a devastavit if he allows time to run in favor of a debtor, and against the estate he represents; and it may be said to be probable, that where such a case results from undue delay on the part of the executor or administrator, he is liable; but this point, and the question which may arise as to how far an executor or administrator is at liberty to revive debts barred by acknowledgment or part payment, and also what is the position as to the right to contribution of a co-executor who has acknowledged and thus revived a debt against his co-executors and the estate, if judgment is recovered against him singly, does not appear to be settled by the authorities.2 An ex SEC. 198. Right of Executor to set off Debt barred. ecutor may retain out of a legacy a debt due from the legatee to the estate, although the statute has run upon it, and an administrator may set off such a debt against the debtor's share, upon the ground that one of the next of kin of an intestate can take no share of the estate until he has discharged his obligations to it in full." SEC. 199. Rule in Equity as to Claims against Decedent's Estate.— The rule seems to be the same in equity as at law, that, where time has once begun to run against a debt in the testator's lifetime, it does not cease to run between the date of his death and the appointment of an executor or administrator. But in cases of fraud and mistake, courts of equity hold that the statute runs from the discovery, because the laches of the plaintiff commence from that date. An executor cannot protect himself by the statute from payment of a debt due from himself to his testator by deferring proof of the will. In such cases the probate will be considered to have relation to the testator's death, and the debt will be treated as assets in the executor's hands at that time. In an English case, it was held in equity that a notice published by an executor in a newspaper that he will pay all debts justly due from his testator, will prevent a debt from being barred by the statute; but this doctrine is entirely inconsistent with the rule laid down in Tanner v. Smart, and is not believed to be tenable. But in the same case it was held that a notice published by an executor requesting all persons having claims against the estate to hand them in before they are submitted to a person before whom persons claiming to be purchasers are to be examined relative to the validity of their claims, will not remove the Hayward. Kinsey, ante; Williams, Executors (8th ed.), p. 1805. 2 In Peaslee v. Breed, 10 N. H. 489, it was held that a joint maker of a note who has kept the debt against himself revived by partial payments may, on the payment of the note, obtain contribution from the other maker, notwithstanding that the payee's claim against the latter was barred. 8 statute bar. But the testator may revive a debt barred by the statute, by the provisions of his will; but in such case it is only revived to the extent and in the manner stated in the will. Thus, in an English case,1 the testator provided that one-fifth of his estate should be divided among certain of his creditors named in a schedule to his will, and it was held that the direction so given prevented the operation of the statute, and that, as a specific fund was appropriated for that purpose, if the fund proved insufficient to pay the debts in full, the creditors must take ratably." In another case, it was held that, where a deceased person before his death had taken the benefit of the insolvent acts, the rights of creditors scheduled under the insolvency were not affected by the statute, on the ground that the liability arose in respect of a lien created by those acts, rather than by virtue of any promise to be implied from the scheduling of the debts. Generally speaking, the statute does not run against a trust, and executors and administrators are treated as express trustees, in whose favor the statute does not run to bar the claims of legatees or distributees of the estate. Therefore, a charge created by will upon the real estate for the payment of the testator's debts prevents the running of the statute upon such debts as were not barred in his lifetime," but it does not revive a debt which was barred at the time of his decease; nor does a charge upon the personal estate prevent the running of the statute, because, as the law vests the personal property in the executor or administrator for the payment of the decedent's debts, the will creates no special trust for that purpose. But if a charge is created upon both the real and personal estate for the payment of debts, as if the testator directs that his debts shall be paid out of his real and personal estate, and also provides that, if his personal estate shall be insufficient to pay his debts, then his executors may enter into the receipt of the rents of his freehold 1 Williamson v. Naylor, 3 Y. & C. 208. * See also to the same effect Rose v. Gould, 15 Beav. 189. 8 Barton v. Tattersall, 1 Russ. & My. 237. See also Ward v. Painter, 5 My. & Cr. 298. • In Sirdfield v. Price, 2 Y. & J. 73, on a bill by a creditor against an executor for payment of a demand and an account of the testator's estate, the court, enter taining some doubt as to the validity of the debt, retained the bill for one year, with liberty to the plaintiff to bring his action; and the statute having taken effect between the filing of the bill and the decree, the court restrained the defendant from insisting on the statute. Wren v. Gayden, 2 Miss. 365; Lafferty v. Turley, 3 Sneed (Tenn.) 157; Bailey 8 v. Shannonhouse, 1 Dev. (N. C.) Eq. 416; Hollis's Case, Vent. 345; Woodhouse v. Woodhouse, L. R. 8 Eq. Cas. 514; Wedderburn v. Wedderburn, 2 Keen, 722; Obee. Bishop, De G. F. & J. 137; Brittlebank v. Goodwin, L. R. 5 Eq. Cas. 545. Lafferty. Turley, ante; Picot v. Bates, 39 Mo. 292; Knight v. Browner, 14 Md. 1; Amas v. Campbell, 9 Fla. 187; Smith v. Smith, 7 Md. 55. 7 Pettingill. Pettingill, 60 Me. 423. • Burke v. Jones, 2 V. & B. 275; Hargreaves v. Michell, 6 Madd. 326; Hughes v. Wynne, 1 T. & R. 307. • Evans v. Teneedy, 1 Beav. 55; Scott v. Jones, 4 Cl. & F. 382; Freake v. Cranfeldt, 3 My. & C. 499. |