Daggett, J.
The judge at the circuit charged the jury, that the evidence given in support of the issue, would authorize them to return a verdict for the plaintiff, to the end that the questions arising might be reserved for the opinion of this court. This course was peculiarly proper, because it had been decided, by the superior court, in December, 1826, when holden by another judge, that a clause in a will, like that shown in evidence on this issue, was sufficient to revive a debt, against which the statute of limitations had run ; and a writ of error was pending when this cause was tried, in the court of errors, seeking to reverse that judgment. (Vide Weed v. Bishop, ante, p. 128.)
Two questions are now to be considered, both of which are open for examination and decision in this court.
1. Will a general clause in a will, directing all just debts to be paid, revive a debt, barred by the statute of limitations ?
2. On an issue formed in the action of debt by book, on the point whether the plaintiff’s cause of action accrued within six years, will an acknowledgment of the debt, by an executor, support the issue on the part of the plaintiff?
If an affirmative answer be given to either of these questions, the verdict ought to stand; — otherwise, it must be set aside, and a new trial granted.
1. On the first question, were it new, it would, in my view, be difficult to entertain a doubt. The words in the will designate no fund for the payment of debts ; — they contain no provision for the payment of this debt out of his estate ; — they are merely formal and introductory to particular directions in regard to the disposition of his property. .The clause, “ after my just debts and funeral charges are paid,” thus inserted, has an importance given to it, by the counsel for the plaintiff, which would never have entered a head, not familiar with the dicta of lawyers and judges on this subject. The testator adopts this language, as he does that, commending his body to a decent burial, and his soul to the mercy of his Creator, in compliance with a custom almost universal, and, perhaps, having its origin in the solemnity, which attends a final disposition of his earthly concerns. It is not credible, that he thereby intends to direct the payment of any particular debt; much less, to deprive his representative of the right of interposing a legal defence, arising under an act of bankruptcy, or the statute of [177]*177limitations, or the law against usury, or other illegal consideration.
Again; this is an ancient form, probably introduced from English precedents, and might possibly have had some importance, where it charged the payment of debts out of certain descriptions of property not otherwise liable for them. Here, every kind of property is equally bound for this purpose.
The counsel, however, rely on authorities from the English books, in support of their position. They cite to this effect, Toller 288. ; Cowp. 548. ; 1 Salk. 154. ; 1 Mad. Chan. 483, 4. ; 3 Vesey jr. 738, 9. It is true, in many cases, such a doctrine is advanced by able judges ; but it will be difficult to find an adjudged case, going to the extent now contended for. When mentioned by many distinguished judges and chancellors, it is either directly denied, or plainly questioned ; and in a very late case, in the year 1813, the question was most elaborately discussed, and all the cases reviewed, with great discrimination, by the Vice-Chancellor. Burke v. Jones, 3 Ves. & Bea. 275. He decided, that a devise of real and personal estate for the payment of just debts, did not revive a debt upon which the statute of limitations had taken effect, by the expiration of the time, before the testator’s death. In the case before us, the statute had attached on the debt, more than sixteen years before the testator’s death, and ten years before the date of his will.
In the year 1818, the question came before the supreme court in Pennsylvania, and, after a thorough discussion, was decided against the position now taken by the plaintiff’s counsel. Smith v. Porter & al. 1 Binn. 209. The opinion of the court, by the late C. J. Tilghman, is very satisfactory.
In 1822, Chancellor Kent took a critical view of this doctrine, and has furnished all the authorities on both sides of the question. He arrives at the conclusion, that such a direction in a will does not revive a debt, barred by the statute of limitations. Roosevelt v. Mark, 6 Johns. Chan. Rep. 266. 293.
It would savour too much of an affectation of learning, to pursue the subject farther. — I entertain no doubt, that the evidence arising from the clause in,the will of Clement Botsford is insufficient to authorize a verdict for the plaintiff.
2. The other question now demands consideration. Will the acknowledgment and promise of the executor support the issue ? To decide this question correctly, it becomes necessa[178]*178ry to examine the powers of an executor under our law. In Fairman v. Bacon, 6 Conn. Rep. 121. the court declared, that an executor was “ an agent or trustee ; and merely such, without any beneficial interest given to him by the will.” He has, indeed, a legal right to the personal property ; and it is vested in him, to enable him to pay the debts and legacies of the deceased. He may also dispose of it under the direction of the court of probate. In both instances, he acts immediately under the direction of the law, regulating his conduct. The real estate, not disposed of by will, descends, eoinstanti, on the death of the testator, to the heir; and if devised, it goes to the de-visees, liable, in both cases, to be taken and sold by the executor, for the payment of debts. The residue, in both cases, belongs to the heirs or devisees, after deducting the debts, and the expenses of settling the estate. The executor then, quasi executor, can neither give away the property, nor squander it. If a man can do what he will with his own, he cannot take the same liberty with the property of others. To apply these principles to the case under consideration — Can this executor bind the estate in his hands, real and personal, by an acknowledgment of a debt due from his testator, which had been barred sixteen years before his death ? His duty as executor is to settle the estate according to law, not to subject it to debts, by his declaration or admissions.
But several authorities are cited. First, it is said, that an acknowledgment of a debt, will take the case out of the statute. 3 Conn. Rep. 132. 372. 1 Esp. Rep. 435. 6 Term Rep. 189. 3 Bing. 119. (11 Serg. & Lowb. 59.) Doubtless, it is well established, by these cases and others, that when a defendant interposes a plea of the statute of limitations, the plaintiff may repel it, by showing that he shall not avail himself of it, because he has renounced the benefit, by an acknowledgment which is sufficient to support a promise to pay it. This is not denied.
Secondly, admissions of the party to the record are always received in evidence. 7 Term Rep. 663. Sw. Ev. 128. This, also, is not questioned. But are they always sufficient to support the issue ? The judge in this case charged the jury, that they were authorized,
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Daggett, J.
The judge at the circuit charged the jury, that the evidence given in support of the issue, would authorize them to return a verdict for the plaintiff, to the end that the questions arising might be reserved for the opinion of this court. This course was peculiarly proper, because it had been decided, by the superior court, in December, 1826, when holden by another judge, that a clause in a will, like that shown in evidence on this issue, was sufficient to revive a debt, against which the statute of limitations had run ; and a writ of error was pending when this cause was tried, in the court of errors, seeking to reverse that judgment. (Vide Weed v. Bishop, ante, p. 128.)
Two questions are now to be considered, both of which are open for examination and decision in this court.
1. Will a general clause in a will, directing all just debts to be paid, revive a debt, barred by the statute of limitations ?
2. On an issue formed in the action of debt by book, on the point whether the plaintiff’s cause of action accrued within six years, will an acknowledgment of the debt, by an executor, support the issue on the part of the plaintiff?
If an affirmative answer be given to either of these questions, the verdict ought to stand; — otherwise, it must be set aside, and a new trial granted.
1. On the first question, were it new, it would, in my view, be difficult to entertain a doubt. The words in the will designate no fund for the payment of debts ; — they contain no provision for the payment of this debt out of his estate ; — they are merely formal and introductory to particular directions in regard to the disposition of his property. .The clause, “ after my just debts and funeral charges are paid,” thus inserted, has an importance given to it, by the counsel for the plaintiff, which would never have entered a head, not familiar with the dicta of lawyers and judges on this subject. The testator adopts this language, as he does that, commending his body to a decent burial, and his soul to the mercy of his Creator, in compliance with a custom almost universal, and, perhaps, having its origin in the solemnity, which attends a final disposition of his earthly concerns. It is not credible, that he thereby intends to direct the payment of any particular debt; much less, to deprive his representative of the right of interposing a legal defence, arising under an act of bankruptcy, or the statute of [177]*177limitations, or the law against usury, or other illegal consideration.
Again; this is an ancient form, probably introduced from English precedents, and might possibly have had some importance, where it charged the payment of debts out of certain descriptions of property not otherwise liable for them. Here, every kind of property is equally bound for this purpose.
The counsel, however, rely on authorities from the English books, in support of their position. They cite to this effect, Toller 288. ; Cowp. 548. ; 1 Salk. 154. ; 1 Mad. Chan. 483, 4. ; 3 Vesey jr. 738, 9. It is true, in many cases, such a doctrine is advanced by able judges ; but it will be difficult to find an adjudged case, going to the extent now contended for. When mentioned by many distinguished judges and chancellors, it is either directly denied, or plainly questioned ; and in a very late case, in the year 1813, the question was most elaborately discussed, and all the cases reviewed, with great discrimination, by the Vice-Chancellor. Burke v. Jones, 3 Ves. & Bea. 275. He decided, that a devise of real and personal estate for the payment of just debts, did not revive a debt upon which the statute of limitations had taken effect, by the expiration of the time, before the testator’s death. In the case before us, the statute had attached on the debt, more than sixteen years before the testator’s death, and ten years before the date of his will.
In the year 1818, the question came before the supreme court in Pennsylvania, and, after a thorough discussion, was decided against the position now taken by the plaintiff’s counsel. Smith v. Porter & al. 1 Binn. 209. The opinion of the court, by the late C. J. Tilghman, is very satisfactory.
In 1822, Chancellor Kent took a critical view of this doctrine, and has furnished all the authorities on both sides of the question. He arrives at the conclusion, that such a direction in a will does not revive a debt, barred by the statute of limitations. Roosevelt v. Mark, 6 Johns. Chan. Rep. 266. 293.
It would savour too much of an affectation of learning, to pursue the subject farther. — I entertain no doubt, that the evidence arising from the clause in,the will of Clement Botsford is insufficient to authorize a verdict for the plaintiff.
2. The other question now demands consideration. Will the acknowledgment and promise of the executor support the issue ? To decide this question correctly, it becomes necessa[178]*178ry to examine the powers of an executor under our law. In Fairman v. Bacon, 6 Conn. Rep. 121. the court declared, that an executor was “ an agent or trustee ; and merely such, without any beneficial interest given to him by the will.” He has, indeed, a legal right to the personal property ; and it is vested in him, to enable him to pay the debts and legacies of the deceased. He may also dispose of it under the direction of the court of probate. In both instances, he acts immediately under the direction of the law, regulating his conduct. The real estate, not disposed of by will, descends, eoinstanti, on the death of the testator, to the heir; and if devised, it goes to the de-visees, liable, in both cases, to be taken and sold by the executor, for the payment of debts. The residue, in both cases, belongs to the heirs or devisees, after deducting the debts, and the expenses of settling the estate. The executor then, quasi executor, can neither give away the property, nor squander it. If a man can do what he will with his own, he cannot take the same liberty with the property of others. To apply these principles to the case under consideration — Can this executor bind the estate in his hands, real and personal, by an acknowledgment of a debt due from his testator, which had been barred sixteen years before his death ? His duty as executor is to settle the estate according to law, not to subject it to debts, by his declaration or admissions.
But several authorities are cited. First, it is said, that an acknowledgment of a debt, will take the case out of the statute. 3 Conn. Rep. 132. 372. 1 Esp. Rep. 435. 6 Term Rep. 189. 3 Bing. 119. (11 Serg. & Lowb. 59.) Doubtless, it is well established, by these cases and others, that when a defendant interposes a plea of the statute of limitations, the plaintiff may repel it, by showing that he shall not avail himself of it, because he has renounced the benefit, by an acknowledgment which is sufficient to support a promise to pay it. This is not denied.
Secondly, admissions of the party to the record are always received in evidence. 7 Term Rep. 663. Sw. Ev. 128. This, also, is not questioned. But are they always sufficient to support the issue ? The judge in this case charged the jury, that they were authorized, by this testimony, to find a verdict for the plaintiff.
Thirdly, it is further said, that the power of recovering a debt, barred by the statute, necessarily results from [179]*179the situation and condition of the executor. In proof of this position, Anderson v. Saunderson, 1 Holt's N. P. Rep. 591. (3 Serg. & Lowb. 190.) is cited. That case decides only, that the confessions of the wife, she being his agent, bind the husband, — a principle too familiar to be doubted.
Fourthly, the plaintiff insists on express decisions on the point. Baxter v. Penniman, 8 Mass. Rep. 134. shows only, that an admission made to an executor or administrator, is sufficient to take a case out of the statute of limitations. The debtor himself may certainly waive the statute. In the opinion given, however, the court speak to the following effect: “An admission by or to an executor or administrator, after the six years, will, &c.” So far as that opinion regards an acknowledgment by an executor or administrator, the case did not call for it; and, therefore, it is entirely obiter. In Emerson v. Thompson, 16 Mass. Rep. 429. the same doctrine is recognized, on a case, where a new promise was by an executor, and the only case cited is that in 8 Mass. Rep. 134., which, as has been shown, did not affect the point in controversy. In Johnson, administrator of Johnson v. Beardsley and heirs and devisees of Beardsley, 15 Johns. Rep. 4. it was decided, that the promise of one joint debtor to pay a debt, barred by the statute of limitations, was sufficient to take the case out of the statute ; and Whitcomb v. Whiting, Doug. 652. Jackson v. Fairbanks, 2 H. Bl. 340. and Smith v. Ludlow, 6 Johns. Rep. 267. are cited. It was also decided, that in an action against the heirs and devisees of a deceased debtor, a promise by two of the defendants, who were both executors and heirs and devisees, to pay a debt, was sufficient to charge all the defendants. It is easy to see, that this decision establishes nothing applicable to the present case.
The case of Martin v. Williams, executor of Williams, in error, 17 Johns. Rep. 330. goes to the point only, that, in an action by an executor, an acknowledgment of the debt by the debtor within six years, is evidence to support a new promise, and to remove the bar created by the statute. It is a recognition of the doctrine in 8 Mass. Rep. 134., before commented on.
In the case of Mooers v. White, 6 Johns. Ch. Rep. 372. the learned Chancellor decided, that “any acknowledgment or admission by an executor or administrator, will not bind the real assets in the hands of an heir or devisee. I view that decision, not only as not affording aid to the plaintiff in the case before us, but as furnishing an argument against him. An ex[180]*180ecutor in Connecticut has no more beneficial interest in the personal than in the real estate. He may controul both, as a mere agent, subject to the directions oí the court of probate.
The only cases, cited by the counsel f@r the plaintiff, not already considered, are those in 1 H. Blk. 102., and 2 Saund. 117. e. note 2 They prove only, that a count on an account stated with an executor for money due from the testator, may be joined with a count on a promise made by the testator ; and that this is the usual mode of declaring against executors to save the statute of limitations. It is not easy to see, how these cases prove the point, for which they are introduced. If the utmost effect were given to them, they would only shew, that Mr. Justice Heath and his commentator, Williams, assert, that the object of this mode of declaring is to prevent the operation of the statute of limitations. But were it to be admitted, that the statute might be avoided, by such an acknowledgment, in Westminster-Hall; ought the doctrine to prevail here ? I am persuaded, that, if this doctrine exists at all, it has its origin in a principle never adopted in this state, viz. that the executor was entitled to the surplus of the personal estate of the deceased, after payment of debts, and that, therefore, such an acknowledgment would directly affect his own interest. I perceive some reason for it, where the executor is thus in fact, and to substantial purposes, the owner of the personal estate, but none where he is a naked trustee.
My opinion in this case is confirmed, by the decision of the supreme court of the United States, delivered by Ch. J. Marshall, in the case of Thompson v. Peters, 12 Wheat. 565. He there says : “ Had this been a suit against the original debtor, these declarations would not have been sufficient to take the case out of the statute. But this is not a suit against the original debtor. It is brought against his representative, who may have no personal knowledge of the transaction. Declarations against him have never been held to take the promise of the testator or intestate out of the act. Indeed, the contrary has been held.”
In conclusion, I am satisfied, that the charge of the judge (indeed, it was pro forma merely, under the circumstances already stated) is not supported, by any adjudged case, except that of Emerson v. Thompson, 16 Mass. Rep. 429. and that rests on Baxter v. Penniman, 8 Mass. Rep. 134. which, in [181]*181principle, involves no point now decided. The doctrine of the charge is directly opposed to the case of Thompson v. Peters, 12 Wheat. 565., which last case is consonant to reason and justice.
A new trial, therefore, must be granted ; and it is some consolation to reflect, that, by this decision, two grounds of evading the statute, now first attempted in Connecticut, are rejected. Neither a clause in a will, directing all just debts to be paid, nor an acknowledgment by a personal representative, that a stale demand is due, will defeat the operation of a beneficial statute, —a statute of repose, already so much impaired, by repeated decisions, as to be divested of much of its importance.
IIosmer, Ch. J. and Lansian, J. were of the same opinion.
Peters, J. dissented.
Brainard, J. was absent.
New trial to be granted.