Jenkins v. Wood

Deyens, J. It is contended that the special statute of limitations in favor of executors, by which it is provided that actions against them shall be brought by any creditor of the deceased within two years from the time of giving bond for the discharge of their trust, does not apply to this case. Gen. Sts. c. 97, § 5. But the plaintiff was not the less a “ creditor of the deceased ” because he had obtained a judgment against the defendant as executor. On such a judgment the execution to be issued was de bonis testatoris and not de bonis propriis, and [117] it is as such creditor that he has attached personal property-claimed to be that formerly of Abigail Barker, the defendant’s testatrix, although he has failed to offer any evidence that it was so. It was not intended that suits should be brought after two years, even upon judgments recovered in suits which had been begun before the expiration of that time. The language of the statute is general, and many of the reasons why a limitation of actions is desirable would apply to suits upon judgments recovered subsequently to the death of a testator, as well as upon previously existing causes of action. If the plaintiff failed to obtain satisfaction upon the execution which had issued upon his judgment, and if property of the testatrix existed upon which he had a right to levy, an ample remedy existed for him by scire facias, upon which a new execution could have been obtained. Gen. Sts. c. 133, §.17. Nor does the fact that the bond given by the executor was not in the ordinary form, to account and faithfully administer, &c., but one to pay debts and legacies, entitle the plaintiff to maintain the action without regard to the statutory limitation. Gen. Sts. c. 93, §§ 3, 4. The comprehensive words of the statute in prescribing the limitation, “no executor or administrator,” include one who, being also residuary legatee, has given a bond to pay debts and legacies, as well as one who has given a bond in the ordinary form. Troy National Bank v. Stanton, 116 Mass. 435. Thompson v. Brown, 16 Mass. 172. Holden v. Fletcher, 6 Cush. 235. The present action is not one against the executor personally, but against him as the representative of the estate of the testatrix. It is upon a judgment founded upon a contract made by her, and should a new judgment here be rendered, it must be like that which preceded it, de honis testatoris. The questions whether the defendant became liable upon his promise for the debts of the deceased without regard to the amount of the assets, and whether the bond given by him, as well as any other remedies the creditor might have, are to be treated as simply collateral thereto, and whether such a liability (if it exists) must be enforced within the two years, are not now before us. Exceptions sustained.