Hemenway v. Gates

22 Mass. 321

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1827
• Status: Published

Opinion

Per Curiam.

This case comes before us in an irregular form ; the questions intended to be raised should have been presented in the pleadings.

It is very clear that the defendant could not have pleaded the statute of limitations of four years, unless he can unite his administration with that of his predecessor for that purpose ; and this he cannot do. The former administration continued but two years, leaving two for creditors to prosecute their actions ; there was then an interval when no suit could be brought; then the defendant became administrator de bonis non, and this suit was brought within four years from that time. Neither had there been four years of any administration subsisting before the suit was commenced. We consider the second administration, by virtue of the statute, open to suits for four years, as well as the first, and therefore the facts stated, if pleaded, would be no bar.¹

The general statute of limitations of six years does not affect trusts.² So much however of the demand as consists of labor and services may be barred by that statute.

1 It is now provided by the Revised Statutes, that an administrator de bonis non shall be liable to the actions of the creditors of the deceased for a space of time, which being added to the time that shall have expired whilst the former administrator continued in office, shall make five years in the whole; provided that he shall never be liable for less than two years after he shall have given bonds for the discharge of his trust; and if the former administrator shall never have given the requisite notice of his appointment, the new administrator shall be liable to the actions of creditors for the space of four years after the date of his bond. Revised Stat c. 66, § 20, 21,22.

2 See Farnam v. Brooks, 9 Pick. 242 to 244 ; Kane v. Bloodgood, 7 Johns. Ch. R. 90 ; Bigelow v. Bigelow, 6 Ohio R. 97, 98; Willison v. Watkins, 3 Peters, 51, 52; Decouche v. Savetier, 3 Johns. Ch. R. 215; Elmendorf v. Taylor, 10 Wheaton, 175 to 177, n. a; Murray v. Coster, 20 Johns. R. 583; Terrill v. Murray, 4 Yerger, 104; 1 Story on Eq. 502 to 504 ; 2 Story on Eq. 735 to 739 ; Bangs v. Hall, 2 Pick. (2d ed.) 372, n. 1; Fonbl. on Eq. Laussat’s ed.) 262, 263, and notes.