Opinion
12-08-1819
Brown's Administrator v. Griffiths
An action of assumpsit was brought by James Griffiths against Samuel Booker administrator with the Will annexed of William Brown deceased, in the County Court of Lunenburg; for sundry services rendered, money expended, & c., by the plaintiff, for the said Brown in his lifetime.
The defendant pleaded " non assumpsit by the testator," and the act of limitations. Upon the first plea, issue was joined; to the second, the plaintiff replied, in substance, that the testator had, by his Will, directed his debts to be paid; and that the suit was brought within five years next after the probate of the said Will. To this replication, the defendant rejoined that he was not, by the Will of his testator, or by his qualification as administrator, bound to pay any debt barred by the said Act of Limitations, and concluded to the Country; and the plaintiff likewise.
At the trial, the plaintiff moved the Court to instruct the Jury, " that a testator, directing by his last Will his debts to be paid by his Executors, takes all just debts which he owes at the time of his death out of the operation of the Statute of Limitations; and that, if it should appear to the satisfaction of the Jury, that the defendant qualified as administrator within five years before the bringing of the action, (the defendant having put that fact in issue by his rejoinder to the second replication of the plaintiff,) the running of the Statute of Limitations is barred; and that the plaintiff's action was not barred by the act of Limitations, for the reason in the above proposition contained:" to which instruction the defendant objected, " because the directions of the testator by his Will," (which was set forth in haec verba, bearing date in December 1803, and recorded in September 1804, the time of qualification of the administrator being at April Term 1805,) " did not impede the running of the Statute aforesaid, or prevent it's barring the plaintiff's action, which was instituted on the 11th of August 1808; and because no such fact, as is supposed by the said proposition to be in issue, was put in issue; " --but the Court overruled the defendant's objections, and instructed the Jury as requested by the plaintiff; to which opinion a bill of exceptions was filed. A verdict and judgment was rendered for the plaintiff, and affirmed by the Superior Court; whereupon, the defendant applied for and obtained a Writ of Supersedeas, by order of a Judge of this Court; alleging in his petition, that the Judgment of the County Court ought to have been reversed, " because a direction by a testator, that his debts shall be paid, will not revive a debt upon which the statute of limitations has taken effect at the time of the testator's death; " " and, because, if, generally such direction would have that effect, the testator, in this case, only mentions the necessity of paying his debts, incidentally, as a measure necessarily precedent to the compliance with other directions given by him.
Burke v. Jones, 2 Vesey & Beams, 275.
Note. In the Will, there was no direction that the testator's debts be paid. The clauses in which the debts were alluded to, merely disposed of " the money arising from the sale of his land, mill and personal property, which should remain after the payment of his just debts; and declared that he did not mean thereby to subject to the payment of his debts, the money arising from the sale of the real property, but of the personal property only. --Note in Original Edition.
Judgment reversed.
OPINION
The following was the opinion of this Court.
There being no trust created by the Will in the proceedings mentioned for the payment of the debts of the testator, the Court without deciding what would be the effect of such a trust, if it existed, in a Court of Equity, is of opinion that the instruction given in the Court below is erroneous.
The judgment is to be therefore reversed, and a new trial awarded, in which the said instruction is not to be repeated.