State ex rel. Whaley v. Blackwell

Ryland, Judge, delivered the opinion of the court. 1. The statute of limitations relied on in this case, must be considered a bar to the plaintiff’s right to recover. Here was a final settlement of the estate of William Whaley, deceased, made in May, 1836. Upon that settlement, the amount of $181 52 remained in the administrators’ hands to be distributed. Now, although the record is silent as to whether any order of distribution was made, directing the administrators to pay the [99] distributees their shares of the amount on hand at such final settlement, it was competent for the court to have made such order; nay, it was the duty of the court to have made it; and, presuming that it was made, the plaintiff’s right of action accrued on such settlement and order being made. His having laid by and slept upon his rights-for seventeen years, and until the death of his brother, who was the active administrator, and who had, in all probability, the means of proof of payment; then to awake up and bring his suit against the co-administrator, who appears to have done little or nothing in the business, is enough at least to excite suspicion. The plaintiff is barred then, and the judgment below was very properly given against him. The principles set forth in the opinion of Judge Tompkins, when pronouncing the judgment of this court in the case of The State, for use of Menard, v. Pratte & St. Gemme, will fully sustain this view of the court. Let the judgment be affirmed; the other judge,s- concurring.