Wilson v. Rose

30 F. Cas. 160, 3 D.C. 371, 3 Cranch 371

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1828
• Status: Published

Opinion

The CouRT (nem. con.) was of opinion,- that the statute of limitations was not a bar to this proceeding in the Orphans’ Court, for the reasons stated by CRanch, C. J., who said : The cause of this suit is the neglect of the executor' to return this debt as assets. That duty accrued in 1820, upon the death of the testator. Twelve years had not elapsed from that time to the institution of this suit in the Orphans’ Court.

The debt was not barred at the time of the death of the testator. It was a subsisting valid debt, which the executor was bound to return in the list of debts. Plis not having done so is the cause of this suit; and if the Orphans’ Court, in analogy to courts of law, should admit the statute of limitations as a de-fence, it could be pleaded to this suit only.

The limitation ceased to run as to this debt, when it was- collected and came into the hands of the executor. It then became assets. No cause of action upon the covenant then existed. The debt was satisfied.

The jury was then sworn to try the issues, and upon this verdict, this Court certified to the Orphans’ Court:

That John Rose, one of the executors of Thomas B. Beall, was indebted to him on the 30th of September, 1820, in the sum of 752.76, and that he then had a just claim against him to that amount.

That the said Rose was bound to give in to the Orphans’ Court, the said claim against him in the list of debts due to his testator, and that the recovery of the said debt was not barred by the statute of limitations on the 30th of September, 1820, nor on the 8th of April, 1828, the time of filing the petition in this cause in the Orphans’ Court. .

And that the said John Rose, having failed to give in such claim, his testamentary bond is liable, under the provisions of the Act of Assembly aforesaid, to be put in suit.