Thomas v. Gordon's Administrator

1 Del. Cas. 579

Opinion

Hall, contra. 1 Del.Laws 525, 526 and 229, [2 DeLLaws] 1032 [are] very guarded as to payment by executors. The judges in England have often regretted the length to which these cases have gone, 4 East 603, 604. Cowper is not an adequate case. Vernon was in equity. Term was an acknowledgment. 3 East 409. The pleadings are that no promise in six years; replication that it was, Bull.N.P. 148; Selw. 123. The will recognizes no particular debt. ([Note.] He takes an acknowledgment to be the only ground, but it is on the principle of a waiver that this clause is not within the Statute.) The clause is nine times out of ten inserted by a scrivener from some form. Case of an execution presents a strong one for the protection of the Statute. Prec.Ch., equity proceeds on different principles. When they get a fund in their hands, they will even disregard the privity of debts. And if it was a promise at the time, it cannot control the Statute more than six years after. Here have been twenty-two years and more. (Query. Is this sound princi pie? May the will be looked on as a sort of specialty? 1 Binn. 209, that such a clause does not save the Act.)

Curia advisare vult.