State Bank v. Tucker

Mr. Justice Soott delivered tbe opinion of tbe Court. Tbe Bank sued Stitb Tucker in bis life time. Pending tbis suit, it was suggested tbat tbe latter bad departed tbis life, and tbat Gideon Tucker bad been appointed bis administrator, and, with the view to revive against tbe latter as sucb administrator, sci. fa. was sued out and executed. In response, Gideon Tucker set up, by one plea, tbat letters of administration on tbe estate were granted to him on tbe lOtb day of October, 1849, and tbe sci. fa. was not executed upon bim until tbe 14tb of October, 1851; and, by another plea, tbat more than two years bad expired since tbe grant of administration, and tbat tbe claim bad not been ■exhibited to him in any mode provided by tbe statute within tbat period. The Bank interposed demurrer, which was overruled and electing to stand on it, 'final judgment was given for Tucker, and tbe Bank appealed. Although actions pending against any person at tbe time of his death, which by law survive against tbe administrator or executor, are without tbe rule requiring tbe authenticating affidavit when exhibition of tbe claim is sought by a revival of tbe action against sucb representative, it by no means follows that such claims are without tbe rule requiring imperatively tbe exhibition of all claims within tbe two years, in some one of tbe modes provided by tbe statute. When sucb actions are revived, tbe statute declares tbat “they shall be considered demands legally ex-bibited against tbe. estate from tbe time sncb actions shall be revived-and shall be classed accordingly.” (Dig., p. 126, see. 86.) But if such revival should not be bad until after tbe expiration of tbe two years, like exhibition in any other mode after' tbe expiration of tbe two years, it would be too late. (Walker ad. vs. Byers, 14 Ark. R.) Judgment affirmed.