Branch Bank at Decatur v. Hawkins

12 Ala. 755

Opinion

ORMOND, J.

The decision of the court below, is attempted to be sustained in this court, on the supposed analogy between the statute of non claim, and the general statute of limitations. It is true, that the former is, in effect, a statute of limitations, as the omission to make presentation of claims, as required by law, in the language of the act, forever bars their recovery ; but it by no means follows, that the analogy is complete. To prevent the bar of the statute of non-claim, the law requires an act to be done by the creditor, for which the promise of the administrator to pay the debt, cannot be an equivalent. Notwithstanding the general statute of limitations may have run against a debt, the debt still continues, and consequently the moral obligation to pay it Still exists, which'will be á sufficient consideration for a promise to pay it. Not so with the statute ofinoti-claith. The omission to do the act prescribed by the Statute, extinguishes the liability of the estate for its payment5.• It is foreVer barred,- and by'necessary consequence, the promise' of th'e administrator cannot revine it against the estate, for the benefit of which, and not of the administrator, the' act was passed'.

The received doctrine of this court, that an'-administrator,' may bind-the assets of the estate he represents',-by a'promisé' to pay a debt barred by the general''statute' Of limitations,does not conflict with the view here taken. The adminis-tratei represents the intestate, and' there is therefore nothing incongruous'in permitting him to do what the intestate inight lihve done had he lived, and which indeed, it'might be the' interest of the estate should be done; to prevent- unnecessary litigation. But' the statute of non-claim has ho reference whatever to the'moral obligation of payment. If does not refer itself to the administrator, as the organ appointed by law, to fulfil the duties left'unperformed by the'deceased but has reference to the estate, and its speedy settlement. It prescribes a-rule by which he is to be governed- for the ac-~ complishment of this object, and declares that all debts not presented to him, within the prescribed period; shall be ex-~ ifnguished.

Judgment reversed; and cause remanded.-