Pendleton v. Phelps

19 F. Cas. 147, 4 Day 476

Opinion

Livingston, J.

delivered the opinion of the court. After stating the case, as it appeared from the bill, he observed, that the only question was, whether the petitioners were creditors of the estate of Sanford in such a sense as to require the exhibition of their claim within the two years limited by the statute. It is the opinion of this court that they were not. It would have answered no purpose for the petitioners to have exhibited a de mand against Sanford’s heirs. There is no case in En~\ gland, or in this country, in law or equity, of pursuing! the effects of a deceased partner while the surviving! partner is solvent. Phelps was solvent during the wholif two years claimed as the term of limitation.

This is different from the case of a demand payable at a future period. It was here impossible to know that there would ever be a demand against Sanford, as it could arise only in consequence of Phelps’s insolvency. This was an event not to be foreseen, or calculated upon. The executors could not withhold property from heirs and devisees for such an uncertain demand. There is some force in the argument derived from the section of the statute requiring heirs to give a bond to refund in case of future creditors. This is like the case of a covenant of warranty; on which a claim may never arise.

It is said, that after a claim is discovered, it must be presented, like other claims, in two years. But there is no force in such an argument. There is no law of that sort.

The demurrer is overruled; and let the bill stand for an answer.