McCann v. Sloan

Bartol, J., delivered the opinion of this Court. This case turns mainly upon the decision of the question raised by the appellants’ second exception, as to the admissibility of the evidence of the witness, Martin, whereby it was sought to charge the defendants by proof of the acknowledgment of McCann made to the plaintiffs. The same question-is also presented by the Court’s instruction to the'jury conv tained in the appellants’ third exception. The suit is against the appellants as administrators of James-H. Nussear, deceased, to recover a sum of money alleged to-be due to the appellees, from their intestate in Mb life time,Limitations were pleaded, and the evidence was offered for the two-fold object of establishing the' existence of the debt,- and of removing the bar of the statute. The Court below admitted the evidence and instructed the jury: “If they find from the'evidence that the defendants,Daniel McCann and Susan Nussear, have been duly appointed administrators of the estate of James-H, Nussear, deceased ;- that the plaintiffs exhibited an account against the estate of the deceased amounting to the sum of §374.43, which was-duly passed by the Orphans’ Court of Baltimore'city,- an'd that one of the plaintiffs-, on the 25th of March, 1861,-had the conversation with DanielMcCann, one of thndefendan-ts,-detailed by the witness, Martin, and if the jury shall further find-from the evidence, that the defendants-are'in possession of assets, to be administered, sufficient in hand,-that then the plaintiffs are entitled to recover.” It appears from the proof that the appellees qualified as administrators on the 14th of November, 1859. On the 29th of November, 1859, an account was passed by the' Orphans’ Court,, of the appellees again-st Jamos H. Nussear,- deceased, [585] for $37-4.43, and a memorandum or record thereof was made by the Register, under Code, Art. 93, sec 114, in a boolc kept for the purpose. It is plain, from the certificate of the Register, that the 29th of November, 1859, was the date when the account was passed by the Orphans’ Court. What the date of the account was when due, or what were the items composing it, does not appear; it was not produced at the trial. The registry of the claim was evidence of notice of the same to the administrators, and as such the certificate was properly admitted. Seighman vs. Marshall, Adm'r, 17 Md. Rep., 569. But it was not evidence to establish the claim as against the appellants in this suit. There was proof given of a promissory note signed by James H. Nussear, the defendants’ intestate, dated January 29th, 1859, for $176.75, in favor oí the appellees; but there was no evidence that this note formed any part of the account and claim exhibited to, and passed by, the Orphans’ Court, or that the administrators had any notice thereof. In the conversation between the appellee, Caldwell, and McCann, testified to by the witness, Martin, no allusion was made to the note. That conversation must, therefore, be understood as relating only to the account, that being the only claim exhibited to the Orphans’ Court, or of which the defendants appear to have had notice. The note was clearly barred by limitations, and there being no evidence of any promise or acknowledgment with regard to it, the plaintiffs were not entitled to recover thereon; and we do not understand the instruction of the Court below as comprehending the promissory note. We now proceed to consider the question presented, so far as relates to the account. The evidence of the entries in the plaintiffs’ books having been rejected, there was no proof in the cause to establish the account, except the declarations of McCann, testified to by Martin. We are correct, therefore, in saying that those declarations were offered for the double 1 [586] purpose of establishing the claim, and of taking it out of the operation of the Statute of Limitations. Are they competent evidence for that purpose? In Forbes vs. Perrie's Admr., 1 H. & J., 109, which was a suit against a sole administrator, it was held by the General Court that a count against an administrator as such, was supported by evidence of his promise to pay a debt of the intestate. In Chapman vs. Dixon's Admx., 4 H & J., 527, and Quinn vs. Carroll's Admrs. d. b. n., 10 Md. Rep., 197, it was decided that a promise or acknowledgment by a sole executor or administrator, will take a case out of the statute. But the question whether, if there are two or more administrators, the promise of one will take the case out of the statute, seems not to have been decided in Maryland. In Kent's Adm'r vs. Wilkinson, 5 G. & J., 498, 499, the question is stated in the opinion of the Court, but not decided. And in Quynn vs. Carroll, 10 Md. Rep., 197, though the question was elaborately argued at the bar, the Court expressed no opinion upon it, (see page 209.) When we look outside of the State, there is considerable conflict of authority. In Tullock vs. Dunn, 1 Ry. & M., 416, (21 Eng. C. L. Rep., 478,) it was ruled by Abbott, C. J., that an express promise by one executor would not take a case out of the statute as against the others, and this decision was followed in Scholey vs. Walton, 12 Mees and Wels., 509, in a note on page 514: several American cases are referred to, and many more are cited in the argument of the appellee in Quynn vs. Carroll, 10 Md. Rep., 205, 206. Unquestionably, the current of decisions in this country is in accordance with the ruling in Tullock vs. Dunn. In Hammon vs. Huntley, 4 Cowen, 494, the contrary is asserted; but in the Cayuga Bank vs. Bennett, 5 Hill, 236, before the same Court, the expression of Woodworth, J. in [587] Hammon vs. Huntley, 4 Cowen, is called “obiter see, also, McIntire vs. Morris' Admrs Wend., 90; Lane vs. Doty, 4 Barbour, 535; Peck vs. Botsford, 7 Conn., 172, and Pitts vs. Wooters’ Exrs., 24 Ala., 474, where this question is considered. The cases in all the States are, however, not in harmony. The contrary was held in Emerson vs. Thompson, 16 Mass., 429, and in Hords’ Adm’rs vs. Lee & others, 4 Monroe, (Ken.,) 36. We concur in what was said by Judge Cowen, in 5 Hill, 240, “ that the reasoning of Judge Mills, in the case cited from 4 Monroe, seems to raise a serious doubt whether denying the force of personal representatives, or any one of severa], to admit or to act in respect to any matter which concerns the estate, be not equivalent to saying that they are mere naked agents. They are clearly a good deal more. It has often been held that they are trustees with more than the ordinary powers incident to that character, for one may sell or convert the whole estate without the consent of the others.” See Bell vs. Hilliary, 1 Md. Rep., 186, &c., Mitchell vs. Williamson, 6 Md. Rep., 210, and Gardener & Bowling vs. Hardy & Simms, 12 G. & J., 365, where the powers of executors and administrators are considered. Although there is much conflict of authority on the point, and it must be conceded, that the current of decisions both in England and in this country is the other way, we perceive no good reason why a promise or acknowledgment by one executor or administrator, where there are several, should not operate to remove the bar of the Statute of Limitations, especially when made before the statute has operated upon the claim. But we are clearly of opinion that this can only apply where the claim is established by proof aliunde, and that such promise or acknowledgment cannot be relied on for the purpose of establishing the existence of the debt as against the other administrators. [588] (Decided July 19th, 1866.) The law seems to us to be correctly stated in 2 Smith's Lead. Cases, (5th Ed.) 388, note, where it is said: “ Executors have joint authority and power touching debts due by the testator, and if you prove aliunde, that the claim sued upon was a debt of the testator, you lay a ground for admitting the acknowledgment of one to be evidence against the other; thus, if you prove that it was a debt due by the testator, an acknowledgment by one would take the case out of the Statute of Limitations against both, and against all. Johnson vs. Beardslee, 15 Johns., 3. But for the purpose of proving the fact whence the joint interest and power arise, viz : for proving that it was a debt due by the testator, the confession of one is not evidence in a suit against both. Hammon vs. Huntley, 4 Cowen, 493. This must be understood, however, with reference to what has been before said, as to whether the acknowledgment has been made before or after the statute has operated. In the latter case it would seem a promise or acknowledgment of one of several co- administrators would not bind the others. See Ellicott vs. Nichols, 7 Gill, 102. In this case, the declarations of McCann, being offered for the purpose of establishing the existence of the debt, were inadmissible, and for that reason there was error in the Court’s instruction. The judgment will therefore be reversed. "We are of opinion that the Court below ruled correctly in excluding the evidence of entries in the plaintiffs’ book, contained in the first and second exceptions of the plaintiffs, for the reason that it did not appear from the evidence that the same was a book of original entries; there is, therefore, no ground for a procedendo. Judgment reversed.