Abbay v. Hill

ARNOLD, J., delivered the opinion of the court. The account of Hill, Fontaine & Co. was not barred by the three years’ statute of limitations. This account had never been settled. There were mutual dealings and reciprocal demands between the parties within three years, and the items on one side of the account might have been offset against the items on the other pro tanto. It was a mutual and open current account within the meaning of § 2671 of the code, which provides that “ in all actions brought to recover the balance due upon a mutual and open current account, the cause of action shall be deemed to have accrued at the time of the true date of the last item proved in such account.” Abbay v. Owens, 57 Miss. 810; Wood on Limitations, § 278. It is claimed that the cotton delivered to Hill, Fontaine & Co. from time to time was so many payments on the account, and that the Abbays had no demands against them for it. This is not true for the reason that there was no agreement that the cotton should be accepted as payments on the account, but it was to be sold by Hill, Fontaine & Co. and the proceeds accounted for, and the Abbays might well have maintained suit for the value of the cotton if it had not been accounted for. Under the construction placed on § 2028 of the code, by "a majority of the court in Ales v. Plant, 61 Miss. 259, the claim of Hill, Fontaine & Co. was barred as to the real estate of which Richard Abbay died seized and possessed by reason of the failure to register the claim as the law required, unless the provisions of his will prevented this result. This will expressly charges the351 estate of the testator, both real and personal, with the payment of his debts, and invests his executor with power and discretion to sell the whole or any part- of his estate for the purpose of paying his debts. Charging his debts upon his real estate in this manner amounts to the same thing in equity as if the testator had devised it expressly in trust to pay his debts. Hill on Trustees 527. Here, where the estate of a decedent, real and personal, is liable for the payment of his debts, a trust on real estate for that purpose will not be implied or derived from ambiguous or uncertain testamentary provisions. Stule v. Stule, 64 Ala. 438. But § 1984 of the code provides that “ whenever any last will and testament shall empower and direct the executor as to the sale of property, the payment of debts and legacies, and the management of the estate, the directions of the will shall be followed by the executor,, and no provisions herein contained shall so operate as to require the executor to pursue a different course from that prescribed in the will, if it be lawful,” and if a testator chooses to create such trust on his real estate and his creditors do not object, it is not unlawful for him to do so. In our view this was what Richard Abbay intended and declared by his will, and his estate was thereby taken out of the ordinary course of administration, and the only statute of limitations,, if any, which operated against his creditors was the ten-year statute of § 2696 of the code, which applies in case of the existence of a trust not cognizable by the courts of common law, etc. There may be found statements to the contrary, but in the absence of a statute like the one last referred to above, the doctrine is well settled that a general devise or charge by will for the payment of debts out of real estate will prevent the statute of limitations from running against debts that are not barred at the death of the testator. Hill on Trustees 516, 541. Stule v. Stule, 64 Ala. 438 ; Templeton v. Tompkins, 45 Miss. 424. The Chancellor erred in holding that the real estfete of which Bichard Abbay died seized and possessed was not liable for the payment of his debts, and in ordering an account to be [352] taken and stated on that basis. In other respects the decree is right. , For the errors indicated the decree is reversed and the cause remanded for further proceedings in accordance with this opinion.