Amoskeag Manufacturing Co. v. Barnes

Sargent, J., No action can be maintained against any executor for any cause of action against the deceased, unless the same is commenced within three years next after the original grant of administration, exclusive of “the time such administration may be suspended, except when property is retained by him to pay the debt by order of the judge. Rev. Stats, ch. 161, sec. 5. When the claim is not due or is contingent, it may be filed in court, and the judge may order the administrator to retain in his hands, on settlement, funds sufficient to'pay the same. Rev. Stats, ch. 161, sec. 6. But the claim in this case was fully and unconditionally due, and falls, therefore, within the provisions of the fifth section above cited. It is claimed here that the original debt is still due, and has never been paid, and that the renewals have been only to preserve the original liability, and also to obtain the personal guaranty of the executors as collateral to the original claim, and we are to consider the case as though that fact had been proved. The case stood upon the general issue until January Term, 1868, when there was a motion for leave to plead a special plea in bar, that the action was. not commenced within three years after the original grant of administration. But it is also claimed that this fact, that the action was not brought within the required time, may be relied on as a defence under the general issue, and that no special plea is necessary. It is provided in section 2 of the same chapter, that if the claim is not presented to an executor within two years after the granting of administration, no action shall be sustained on such claim, and it is held that- as this is an act which the plaintiff is required to do to enable hint to recover, he must prove such presentation affirmatively on trial under the general issue, though he had not specially alleged it in his ciclara [29] tion. In such case the defendant need not plead that the claim had not been presented, but under the general issue, the plaintiff must prové that fact as a part of his case to entitle him to recover. Mathes v. Jackson, 6 N. H. 105; Kittredge v. Folsom, 8 N. H. 98. But if the defendant would take advantage of the fact that the suit was prematurely brought, being within one year from the granting of administration, (sec. 1, same chapter,) he must plead it in abatement and not in bar, and unless so pleaded the plaintiff needs no proof on that point, (same authorities, and Clements v. Swain, 2 N. H. 475,) and for this reason, that this is no bar to the claim but only a suspension of the right of action. 1 Ch. Pl. 479. But where the action is not brought within the three years from the granting of administration, that operates as a bar to the claim, a termination of the right of action, and needs to be pleaded specially or to be set up by way of brief statement with the general issue like the general statute of limitations. And it has been held that although an executor is not bound to plead the general statute of limitations in bar of the recovery of a debt, otherwise justly due; Hodgdon v. White, 11 N. H. 208; yet that he has no right- to omit to avail himself of the statute provisions limiting actions against him, and which are intended to ensure the speedy settlement of estates. Hodgdon v. White, supra; Walker v. Cheever, 39 N. H. 428; Brown v. Anderson, 13 Mass. 201; Dawes v. Shedd, 15 Mass. 6; Emerson v. Thompson, 16 Mass. 429; Thompson v. Brown, 16 Mass. 178. But it is claimed in this case that the executor may, by an express promise, not only bind himself as executor, but also the estate of his testator, and thus prevent the operation of the statute. But it has been expressly held the other way in Massachusetts, in the cases just cited, Brown v. Anderson, 13 Mass., and Thompson v. Brown, 16 Mass., where it was held that the executor being bound virtute officii, to plead the statute, whenever a debt is claimed which would be barred by it, therefore no promise of the executor could operate to defeat the statute so pleaded; and in Heath v. Wells, 5 Pick. 139, it is held that after the expiration of the time limited by the statute for suits against an executor, the estate of the deceased is no longer assets in his hands, and that a license to sell for the payment of a debt thus barred, is void, and the non-payment of a judgment recovered on a claim thus barred where the plea of the statute is not interposed could not avail to charge the sureties of the executor in a suit on his bond. And in Thayer v. Hollis, 3 Met. 369, it is held that a levy upon a judgment, so recovered, is void as against heirs, devisees, or purchasers, (if not executors,) because judgment in such case could only be obtained through the collusion or negligence of the executor, and that the judgment could only be good as against him, as in case of an executor de son tort. In Hodgdon v. White, 11 N. H., supra, Parker, O. J., evidently recognizes the principles of these decisions as being the law of this State, and so did Bell, C. J., in Walker v. Cheever, 39 N. H., supra, [30] where he says that "the general policy of the law aims to secure the early and prompt settlement of the estates of parties deceased, but this would hardly be accomplished if the executor were allowed, by a new promise, to waive the provisions of the statute, and hold the real estate of the deceased as assets in his hands.” All the authorities cited go to show that the statute must be pleaded by the executor, or else judgment will be entered upon the claim. It is nowhere suggested that the plaintiff would be bound to show affirmatively that his suit was brought within the time specified by the statute. It is everywhere said that the executor must plead the statute, and has no right to omit to plead it, and that when he fails to do so, a judgment issues against him, which would be good against him as an executor de son tort, but which would not bind the estate : and no license would be granted to the executor to sell real estate of his testator to pay such judgment, and a levy of the same on the real estate of the deceased would be void against heirs, devisees and purchasers, who are not executors. The first thing to be done is to get the proper parties before the court. When that is done, as the printed case now stands, the defendant is well enough without doing anything, as it does not appear that this claim was presented to the executor within the two years required, and if it was not, the defendant stands well upon the general issue. If it was thus presented, then defendant should plead the statute in bar, and we think should, in this case, have leave to plead it now upon some terms, and we think all the promises and guaranties of the executors would be of no avail to bind the estate, but would only bind those who made such promises individually, to the plaintiffs. When the pleadings are closed, judgment may be rendered according to the above views. Case discharged.