Neil v. Cunningham's Executors

2 Port. 171

Opinion

By Mr. Justice Hitchcock :

This case comes before the Courff.ttfpon an exception to the opinion of the Judge of the .'Circuit Court of Madison county, upon the construction of the sta tute of non claim. The defendants were sued as executors of J. B. Cunningham, who was. the security of one Buford, who was a deputy sheriff under the plaintiff, and who had had money to pay, as sheriff, for said Buford’s default. More than eighteen months had elapsed after the death of Cunningham, and the grant of letters testamentary to the present defendants before the demand was made by the plaintiffs of them, for tho sum paid for Buford’s default, but less than that time had elapsed after the payment of the money by the plaintiffs, and the demand. The Court below', allowed the bar, and decided that the claim should have been presented within eighteen months after the grant of letters testanientary on Cunningham’s estate.

By our statute of non claim,

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a “ all claims against the estates of deceased persons shall be presented to the executor or administrator within eighteen months after the same shall have accrued, or within eighteen months after letters testamentary or letters of administration shall have been granted, and not after, and all claims not presented within the time aforesaid, shall be forever barred from a recoverywith the exceptions of minors, femes covert, persons insane, or non compus mentis, debts contracted out of the state, and claims of heirs and legatees claiming as such.

The claim of the present plaintiff, was for money he had been compelled to pay for Buford, whose security the present defendant’s testator was. It did not accrue., within the meaning of the statute, until he had paid it. It is true, he held Cunningham’s bond, but it created only a contingent liability which might never become absolute. Neil was sued — Buford was defending — the default of Buford might never be established, and when established, he might pay it. Neil was not at liberty to make a voluntary payment, or at least he was not bound to, in order to b3 able to call upon Cunningham’s executors, and they were not bound or authorised to pay until Neil had been legally compelled to pay the default of Buford. There was, therefore, no use in making- the claim, and the láw will not require that to be done, which, when done, is of no use. Suppose Buford’s default had not happened until eighteen months after Cunningham’s death, and as much longer time had elapsed before Neil had been compelled to pay, could he have no redress? Suppose the estate had been divided among the heirs, could' he not sue them? Surely he could. The first clause in the statute was to embrace such cases as-this.* It contemplates cases which may arise when the claim may not accrue until after eighteen months has elapsed from the grant of letters, and if the party brings himself within that time he may recover.

The decision of this Court, in the case of Bigger, adm'rx. vs. Hutchings & Smith, adm'rs,a does not conflict with the views taken in this case. The principle of that case is, that where the claim has accrued, as was the case there, for it was on a judgment by attachment in Georgia,. against the defendants' intestate, it must be presented in within' eighteen months, and the mere issuing of a writ which was afterwards dismissed, was not a sufficient presentation. It must be in such manner as "to furnish ~the administrator with such vouchers and reasonable evidence as might induce a belief that the claim was just.b

In this case, the bond was shewn to tHe executors, and within eighteen months; but at that time there had no claim accrued, and as the act was not required, it is not necessary to decide, ther~fQre whether it would have been a good presentation to bar the claim if it had then. accrued.

The case cited from 4 Day's Rep. 476, is in point. The act of Connecticut is similar to ours in this respect, allowing two years for the bar, and it was there decided, that the statute did not begin to run until the plaintiffs had a right to sue.

The judgment must be reversed, and the cause be remanded.

Aik. Dig.153 § 6.

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2 Stew't, 445

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2 Stew't 448.