McNeill's Adm'r v. McNeill

R. W. WALKER, J. The plaintiff’s intestate died in August, 1857. This suit was brought by the plaintiff’, as his administrator, in January, 1858. The court charged the jury, that “if the defendant had the negroes in possession for six years before the commencement of this suit, claiming them as her own, this vested the title to the negroes in defendant, and plaintiff cannot recover.” By section 2494 of the Code it is provided, that “the time between the death of a person and the grant of letters testamentary or of administration, not exceeding six months, is not to be taken as any part of the time limited for the commencement of actions by or against his executors or administrators;” and by section 1675 it is provided, “ that no letters of administration must be granted, till the expiration of fifteen days after the death of the intestate is known.” It is plain, therefore, that in cases to which these sections of the Code apply, there is a period of not less than fifteen days, nor more than six months, succeeding the death of the intestate, during which the opei’ation [32] of the statute of limitations is suspended. Hence, if this case is governed by the provisions of the Code in reference to the limitation of actions, the court erred in instructing the jury that the possession of the slaves by the defendant, “ for six years before the commencement of this suit,” would vest the title in her. [2.] It is said, however, that the cause of action accrued before the Code went into operation, and that under the act of February 15th, 1854, (Acts ’53-4, p. 71,) it is governed, not by the provisions of the Code, but by the statutes of limitation in force before the Code went into operation. Concede this to be so, and still the result is the same. In Grice v. Jones, 1st Stew. 254, our predecessors held, that where the action was not barred at the death of the intestate, his administrator may sue at any time within twelve months after his death, although, if the intestate had continued in life, the bar would have been complete before the expiration of the year. If this were a new question, we might consider the decision just cited obnoxious to criticism ; but more than thirty years have elapsed since it was made, and its authority has never been questioned. We are the more inclined to abide by the rule established in that case, without inquiring narrowly into the reasons by which it is supported, because it can hereafter be applied only to those cases in which the cause of action accrued before the Code went into operation. The rule has stood undisturbed for more than a quarter of a century, and be have no disposition to overturn it now, when it is about to become extinct under the influence of new legislation upon the subject to which it relates. Applying that rule to the present ease, the period which intervened between the death of the intestate and the commencement of this suit by his administrator, constituted no part of the time limited for bringing the action; and consequently, the defendant’s possession of the slaves for six years before the commencement of the suit did not serve to vest the title in her.' Judgment reversed, and cause remanded.