Garland v. Milling

By the Court. Warner, J. delivering the opinion. The error assigned in this case is to the charge of the Court to the Jury, with regard to the Statute of Limitations, relied on by the defendant. For the plaintiff in error, who was the defendant below, it is insisted, that the records of the Court of Ordinary of Upson County, show conclusively, that Daniel Walker, after his intermarriage with the executrix of David T. Milling, was duly qualified as such executor, and that he gave bond and security,as required by the will and the Act of 22d December, 1828, the will of the testator not having effect until his death, which O0~ curred subsequent to the passage of that Act; and also, as'it ap’pears from the same record, that Thomas D. Milling, one of die executors named in the \viR was qualified on the 9th February, 1846, then being, as the record recites, twenty-one years old; that he must have been seventeen years of age more than four years anterior to the commencement of the present suit, and could, as such executor, have instituted an action for the recovery of the’ negro ; that the estate of David T. Milling, the testator, was represented, either by Walker, who intermarried with the executrix, or by Thomas D. Milling, more than four years before’ the commencement of the present action. For the defendant in error, it is insisted that, by the terms of the will, and the provisions of the Act of 1828y- which operated upon the will, as it did not take effect until after the passage of that Act, the letters testamentary granted to the widow and executrix of the testator, abated, and that there was no legal representative of the estate of David T. Milling, against whom the Statute of Limitations could run, until the appointment of Cary, as administrator, with the will annexed ; and from that time to the commencement of the suit, four years had not elapsed. In Doe ex dem. Conyers vs. Kennon, (1 Kelly, 379,) this Court held, that the Statute of Limitations did not commence to run until administration had been granted on the estate of the intestate. Doe ex dem. Cofer vs. Flanagan, (1 Kelly, 538,) to the same point. David T. Milling, the testator, died, and his widow qualified as executrix, subsequent to the passage of the Act of 1828. The. [315] second section of that Act declares, “ If any widow or feme sole, after obtaining letters testamentary of administration, or of guardianship, shall marry, the letters so granted shall abate, during the coverture ; but the husband may be entitled to such letters, upon his giving bond and security, and taking the oath required by law; or the Court of Ordinary may, in their discretion, grant the same to any other person entitled thereto, according to the laws of this State.” Prince, 252. When Walker intermarried with the widow and executrix of the test.ator, her letters testamentary abated; and to constitute Walker the representative of the testator’s estate, it was necessary for him to give bond and security, and take the oath required by law to execute the will. Did Walker ever take the oath, as required by law, and give bond and security ? The argument for the plaintiff in error is, that the records from the Court of Ordinary afford conclusive evidence that he did, and that he was recognized and treated as executor by that Court. Whether he did qualify and give bond and security, were questions offact for the consideration of the Jury, and we think, were very properly submitted by the Court to them. [1.] Although the records do show very strong resumptive evidence that Walker was the executor, and was recognized as such by the Court of Ordinary of Upson County, and if we had been the Jury instructed to find the facts, we might have been of the opinion that bond and security had been given, which had been lost or mislaid ; and if the Jury in this case, under the charge of the Court, had found by their verdict, that Walker had been duly qualified as executor, and given bond and security, we should have been entirely satisfied with their verdict, and felt no inclination to disturb it, as being against evidence; but it was the exclusive province of the Jury to find the truth of the facts submitted to them by the Court, according to their judgment and view of the evidence; and having so found, we will not disturb their verdict, although we might have been equally as well satisfied with it, had they found, jn favor of the defendant in the Court below. The Court violated no principle of law, in submitting the facts to the consideration of the Jury. [2.] Did the Statute run against Thomas D. Milling, on his arrival at the age of seventeen years, and before his qualification as executor ? The argument for the plaintiff in error is, that it did, be [316] cause lie could have instituted suit before probate of the will. It is true that an executor can do many things before probate of the will by the Common Law, for the benefit of the estate. He may commence actions in right of the testator, but he cannot declare, before probate of the will, for the reason to enable him to assert his claim, in right ofhis testator, in a Court of Justice, he must produce a certified copy of the will, under the seal of the Probate Court, or the letters testamentary. Toller’s Ex’rs, 46. Under our practice, an executor might, we think, institute an action before probate of the will, for the protection of the estate, provided the will is admitted to probate, by the first term of the Court to which the suit is brought, so as to enable him to make prof art of his letters testamentary, at that Court; and when proferí thereof shall be so made, such letters testamentary will have relation back to the time of suing out the writ. Toller, 47. But while we admit an executor may institute a suit for the protection of the estate of his testator, we are not willing to hold £hat he must do so, or his right of action be barred by the Statute of Limitations until probate of the will, and the qualification of the executor. By the 5th section of the Act of 1792, every executor or administrator, with the will annexed, at the time of proving the will or granting administration, shall take an oath to well and truly execute the same. Prince, 227. In our judgment, the safest and best rule to adopt and establish, in relation to the time when the estate of the testator shall be considered as represented, so as to allow the Statute of Limitations to commence running against it, is from the time of the probate of the will and the qualification of the executor or administrator. When the executor qualifies to execute the will, it is an acceptance of the trust devolved upon him by the testator, and he is then clothed with official authority to represent the same, and the Statute will commence to run, from the time of such qualification. Let the judgment of the Court below be affirmed.