The Federal Rules of Civil Procedure, Rules 8(c) and 12(b), require such defenses to be presented by responsive pleading, and a failure so to present them operates as a waiver under Rule 12(h), Roe v. Sears, Roebuck & Co., 132 F.2d 829 (7th Cir. 1943). Under Tennessee law an executrix has capacity to waive a statute of limitations, McGowan v. Miles, 167 Tenn. 554, 72 S.W.2d 553 (1934). The delay of more than one year beyond the time allowed for responsive pleading operated as a waiver of the statute, and her motion to file the third section of her reply was therefore overruled.
, 4 Harr. (Del.) 368; McGowan v. Miles, 167 Tenn. 554. We are of the opinion that Dr. Southey, if he believed the claims were just, could pay them even though they accrued more than six years before such payment.