Man v. Warner

4 Whart. 455, 1839 Pa. LEXIS 227

• Court: Supreme Court of Pennsylvania
• Decided: April 29, 1839
• Status: Published

Opinion

The opinion of the Court was delivered by

Huston, J. —

Benjamin Warner in his lifetime, drew several promissory notes, all dated on different days in the months of July, and August and September, 1821, and payable at two, three, five and six months. They were all drawn payable to Joshua and Thomas Gilpin; all endorsed by them, and are now the property of the plaintiff.

Benjamin Warner died on the 24th day of September, 1821, before any of the notes became due. His will was dated in 1819, by which the defendants were appointed his executors, who proved the will and administered the whole- estate; had settled their accounts; and Joseph Warner, the acting executor, after paying all specialty debts out of'the funds of the estate, had paid above two thousand dollars of his own money, to satisfy simple contract creditors. The debt in question was always resisted; no part of it was paid, and no promise by the executors to pay it, or any part of it, was alleged. This suit was brought to December term, 1828, more than six years after the last of the notes became due. The action was assumpsit in the usual form. Thé1 pleas were, that they did not assume, and that they did not-assume within six years. • "To this last plea a special replication was filed, setting out the will in its words at full length, and stating, that the defendants proved the will, and took possession of the estate, disposed' of the real estate, and from the time of the testator’s death, took possession of the personal estate and managed it; and that the defendants carried on the business of the said decedent for a' long time till the bringing of this suit, &c. To this replication the defendants demurred. The only question here discussed, was, whether the statute-of limitations bars a debt created by a decedent in his lifetime, but not payable until after his death, in a case where no suit is brought against his executors or administrators until more than six years have elapsed after the debt became due and démandable. I may surmise that it is strange this -question should be made in the courts of this state, now for the first time; for certainly it has been acted on in all courts, as a settled matter for more than a century; and so far as' I have known or heard, it has not been questioned but that the statute of limitations applied with the same effect to the cases of estates of deceased persons, as to cases where the debtor was in full life.

The reasons why that' statute does not apply to this case, which were urged in the argument, are drawn from the cases in chancery in England, and from some very late cases. In that country the lands of a testator are not liable for the payment of debts on simple contract. If a testator charges -his dands with payment of all his debts, the lands are not liable by the law, but under and by operation of the will. And sometimes the devise is to trustees to sell, and sometimes to executors, to sell; in such case, a Court of chancery having cognizance of trusts, the matter is decided in that Court; and as the lands are given to the executors, to sell for the purpose of paying debts, they are considered trustees for the creditors, whether called trustees or not; and the creditor and executor being strictly in the relation of cestui que trust and trustee, the statute of limitations does not run'-between them. If the testator devises his real and personal estate to his executors to pay debts, this makes them trustees for the real estate, and gives chancery jurisdiction; and if a bill is brought there, it generally settles the whole estate real and personal. But- if-there be no devise of lands to pay debts, or if the debtor dies intestate, and administration is granted, the creditor may, and unless on some peculiar suggestion, which will give jurisdiction to a Court of chancery, must sue at law. In a Court of law the executor or administrator represents the deceased; and there is no more trust between him and the creditoiythan there was between the deceased in his lifetime, and the creditor; and it has not been said that the statute could not be pleaded with effect in a Court of law. But in England, law, statute and- common, in Courts of law and in chancery, has been for some- years in a state of improvement, or at least of change, so great and in such rapid succession, that it would be unsafe to follow as a precedent, every case of which a report may be brought across the Atlantic; for although we have to a certain extent adopted the common law as it stood at our revolution, and in some cases the statute law as it then stood, and had been in use here, while we were a colony, ,yet no Court has adopted or said we were bound by the. acts of parliament, passed since our independence. And so vital and total have been- the changes made by the late acts of parliament, that we run in some'.cases - a- risk in relying on the late decisions. It would not be difficult to show that some of the late decisions have innovated as múch on the law as it stood before, as the acts of parliament have_ done on the law and practice as they existed at the death of George the third.

I shall not go into, the law on the subject in question, further than to state that in 15 Viner, 125, p. 21, Lord Hardwicke, is represented as saying “■ The,rule of this Court, that the statute of limitations does not bar a trust estate, holds only as between cestui que trust and trustee, not between cestui que trust and trustee on one side and strangers on the otherand see Blanchard on him. 73, and the fol- • lowing pages, and the cases there cited. And it was settled that where the right was barred by act of parliament in a Court of law, the equitable right to the same thing was concluded by the same bar. Smith v. Clay, (3 Brown's Chan. 639,) in note. The dictum of Lord Redesdale, in Fergus v. Gore, (6 Scho. & Lefroy, 110,) has been cited; but that was a case of trustees, to sell land and pay debts. That great judge of law and equity, when the subject came distinctly before him, said, “ There are certain principles firmly settled in a court of equity,” and among these he states, “ if a party be guilty of such laches in-prosecuting his equitable title as would bar him of his title were it solely at law, he shall be barred in equity.” Ibid. 428-9; and see 2 Scho. & Lefroy, 631, where he says, “ in all legal titles and legal demands, Courts of equity aré bound by the statute.” But I shall not go over all the cases cited. Kane v. Bloodgood, (7 John. Chan. Rey. 90,) and App v. Drisbaugh, ( 2 Rawle, 287,) refer to many of them. I will not pursue the inquiry as to the decisions in the last cases in chancery, because I have supposed the practice and some of the principles, are in England in a state of fusion or transition; and it might not be safe to adopt their decisions in every case as" soon as. we hear of them, lest we might .be called on to retrace our steps, or at least to change our position. And again, we are not sitting as a Court of Chancery, but a Court of law, and this suit is an action at law. But beyond all these, we have a train of decisions on the subject of acts of limitation, going over a period of more than thirty years, and which I .suppose, and the profession supposes, and every member of this Court supposes, are founded on the true construction of the acts of assembly, and are calculated to promote the interest as well as the peace of society.

Our statute of limitations, which is nearly a copy of the statute of James,-is express that such an action shall-not be sustained, if brought after six years from the time-'when the demand became due and demandable. As far back as Smith and Porter, (1 Binney, 20,) it was decided that a direction in a will, that executors should pay debts, did not prevent the statute of limitations from running. That decision made no distinction between debts due before or after the death of a testator. Our act of 1705, had -made lands liable for all debts, whether by specialty or simple contract. No direction in a will had any effect to prevent a creditor From suing and obtaining judgment and issuing execution and collecting his money. The will by its provisions could affect the legatees or devisees, but could in no case restrain or bind creditors. The executor represented the testator; and.the cr,editor- could sue him, and recover the debt from the lands or chattels of the testator, precisely as he could have recovered, if the testator had been alive; and the executor was no more" a trustee for a creditor, than the testator had been while alive, and -in some cases not so much so. The next case is Gemberling v. Myers’s administrators, (2 Yeates, 341.) The plaintiff and Myers had been administrators of Ritter, and had settled their accounts, more than six years before the bringing of this suit; by that account, in which it would seem they had joined, it appeared that Myers had money of the estate in his hands, while Gemberling had paid out of his own funds above forty-seven pounds for the estate, and clearly Myers ought to have paid him this money; his administrators pleaded the statute of limitations, and Smith, ■ Justice, at Nisi Prius, held the plea good, and on appeal the decision was affirmed. ■

The cases of Jones v. Moore, (5 Binn. 573,) and Baily’s administrators v. Baily, (14 Serg. & Rawle, 196,) were both cases of the statute of limitations as applied to suits against the representatives of a deceased person. So is Scull v. Wallace, (15 Serg. & Rawle, 231.) In each of these eases, it was held, that it was an available plea by an administrator or executor. In the last of them, one of the administrators acknowledged the debt, and with his own consent was examined in the cause. The other pleaded and relied on the statute, and the opinion of this Court was that she might do so. The history of judicial decision on this statute is singular: -in England every epithet indicating dislike was applied to it. In point of fact it had- ceased to produce any beneficial effects; for such were the decisions, that if the person alleged to be debtor, could be induced to enter into conversation with the creditor, the case was somehow or other taken out of the statute. The bad effects were so sensibly felt, that a new enactment was made, which may not be construed away. Jones v. Moore, was the commencement of a return to the doctrine, that it was an act of the legislature, and as such, ought to be carried fairly into effect; and we believe it is so now, not only- in our own Courts, but in most of the states in the union. In Fritz v. Thomas, (1 Wharton, 66,) its application to' the estate of a deceased person, was more fully considered, and it was there decided, that though an executor or administrator had acknowledged the claim to be unsatisfied and talked of paying it, he might afterwards plead the statute of limitations with effect. In Reynolds v. Hamilton, (7 Watts, 420,) this point came again before this Court; one of the executors had paid part of the claim and promised to pay the balance: on suit brought the statute was pleaded, and with effect.

In several, if not all of these cases, the debt was due in the lifetime of the deceased, though perhaps the six years had not elapsed in any one of them when administration was granted, I must on this subject speak with doubt; the report is not explicit on this subject in any of them ; and in most it is left out of view, and neither the coun- , sel nor the Court notice it as material. The doctrine here relied on and extracted from the English chancery cases, which say, that when lands, not subject to the claims of creditors, are by a will made subject, the trustees shall not avoid paying the debt by pleading the statute, or in other words, the doctrine that the statute did not continue to run after a debtor died, is not alluded to in any of them — perhaps, because it had never occurred to any human being, except as applicable to any other cases than those strictly between cestui que trust and trustee. It is at variance with our whole system: instead of leaving the estate of a deceased person liable to debts, without regard to their date, our legislature on the 4th of April, 1797, provided that no debt should continue a lien on the lands of a deceased, more than seven years, unless suit brought, or if the debt was not suable within seven years, the evidence of it filed in the prothonotaries’ office; and by a late law the time of it is reduced to five years. This has been decided to apply to and protect the money arising from the sale of lands. 6 Watts, 33. By the act of 1798, the lien of a judgment ceases, unless continued by scire facias, which if the debtor is dead must be served on his legal representatives.

In point of fact every person experienced in business, knows that more stale claims are brought against the estates of deceased persons than against debtors alive. Often these claims are suffered to sleep, until all who could give evidence, are removed to the far west or to another world; and in not a few instances, I have known them to rest until the executors had settléd their accounts and died, and an administrator de bonis raised up by the creditor, for the express purpose of confessing a judgment. An executor must settle his account within one year, and if the estate cannot be closed within that time, as soon after as possible: the legatees or distributees will claim and get their money within six years. Executors and administrators must die, and their legal representatives, on the doctrine contended for, must be called on to answer, against reason and justice, for the default of those they represent, in not paying what was not due, and what never would have been claimed, while those who could have proved material facts, were in existence.

The only case cited from our own books, which could be supposed to have any bearing on this cause, is Johnson v. Humphreys, (14 Serg. Rawle, 394.) No doubt that decision is correct, but whoever reads that case will see it was taken out of the statute, by more than one of the facts proved.' It will also occur to the Pennsylvania lawyer, that our decisions as to the statutes) had not then arrived at the point where they now stand. Several cases were also cited, to show decisions that the statutes do not bar a claim for a legacy or distributive share of an estate. The principles on' which we have acted in other cases, must have be,en abandoned, or they would have led to permitting its application to these cases. But the act of 15th April, 1833, section 19, has settled this by enacting, “ That all relations and persons concerned; who shall not lay legal claim to their respective shares within seven years after the decease of the intestate, shall be debarred from the same forever.”

On the whole, it is the opinion of this Court, that the letter and spirit of the act applies to claims against the estates of decedents, whether the demand was due and payable in his lifetime or fell due after; and such having been the decisions of the Court, we will not alter them.

Judgment affirmed.