
    Dyer Pearl vs. William E. Conley and Francis E. Willis, Administrators of William T. Willis, deceased.
    The statute makes it the duty of executors and administrators to cause publication to be made for the presentation of claims against the estates which they represent, to be commenced within two months after the granting of letters testamentary, &e.; the same statute also provides that all claims against the estates of decedents shall be presented to the executor, &c. within eighteen months after the publication of notice, for that purpose, by such executor, &c. The notice thus designed to be given is purely constructive, and the provisions of the law must be strictly pursued by executors, &c. ; in order therefore to bar the claims of creditors of an estate because they had not been presented within eighteen- months from the publication of the grant of letters, the executor or administrator must show affirmatively, that the publication was commenced within two months after the granting of letters testamentary, &c.
    The creditors of an estate are not bound to take notice of any publication made by executors and administrators, requiring the presentation of claims within eighteen months, &c. commenced after the expiration.of two months from the date of the grant of letters.
    Error from the circuit court of Yalabusha county; Hon. Hendley S. Bennett, judge.
    Dyer Pearl sued William E. Conley and Francis E. Willis, as administrators of William T. Willis, in the circuit court of Yalabusha county, to the November term, 1842, in an action of assumpsit. The declaration was founded on a bill of exchange for twenty-five hundred dollars, drawn by William T. Willis in his lifetime, and was in the usual form. The defendants pleaded the general issue. On the trial, after plaintiff closed his evidence, the defendants proved that letters of administration on the estate of William T. Willis, deceased, were granted to them by the probate court of Yalabusha county, on the 7th day of October, 1840, and they were duly qualified as administrators on the same day; and that they gave notice, by publication in the “Southern Reporter,” a newspaper published in the town of Grenada, in Yaiabusha county, to all creditors of said estate to present their claims for payment within the time prescribed by law, or they would be barred by the statute of limitation. The publication of which notice they proved was commenced on the 12th day of December, 1840, and continued for six weeks successively. The evidence being closed, the plaintiff’s counsel asked the court to instruct the jury “ that they must believe, from the testimony, that due publication for the presentation of claims against the estate of William T. Willis, deceased, was commenced by the administrators within two months after the granting of letters of administration on said estate, by the probate court, or the defendants were precluded from setting up the statutory bar of eighteen months, for want of the presentation of the claim against said estate within the time prescribed bylaw.” Which instruction the court refused to give, and charged the jury “ that if they believed that publication had been made for six successive weeks, and the plaintiff’s claim had not been presented within eighteen months after the last publication, although publication did not commence within two months after the grant of letters of administration, that the publication was sufficient notice to bar the plaintiff’s action; ” to all of which the plaintiff excepted. The j try returned a verdict in favor of the defendants, and judgment was entered accordingly; to reverse which, the plaintiff now prosecutes this writ of error.
    ■' A. C. Leigh, for plaintiff in error.
    , Under the old common law rule of pleading, the administrator, in order to take advantage of the statutory bar, was compelled to plead it “ with all the particularity required by the statute.” But our statute allows him to give those matters which constitute the bar, in evidence under the general issue. This statute then, has only modified the strictness of the old common law rule of pleading, but leaves the rules of evidence untouched. In other words, you can introduce under the general issue that evidence which formerly was only introduce-able under a special plea. We have a sure index to the character of evidence required under a special plea, when we have found out what averments are material in such a plea. In the case of Wren’s Adm’r. v. iSpon’s Adm’r. 1 Howard, 115, the court, in delivering an opinion upon this subject, say, “ The plea will be defective unless it sets forth the date of letters testamentary, or administration, that there was publication within two months after such date, and that such publication was continued for six weeks successively.” In the case now before the court, the letters are dated on the 7th of October, and the first publication is made on the 12th of December following. Now does this proof substantiate what the court has decided to be a material averment? In other words, is the averment that publication was made within two months, supported by proof that it was not made in two months?
    If the administrator is allowed six days over two months to commence his publication, (as is the case in the present instance,) would not the same rule of construction allow hirn as many years? We submit that the court has no discretion in the matter, that it cannot enlarge the time created by legislative enactment. By reference to How. & Hutch. 414, it will be seen that the statute is positive upon the subject. “ It shall be the duty of executors, &c. within two months after the granting of letters,” &c. The statute of eighteen months limitation, is for the benefit of estates, by facilitating the administrator in coming to a final settlement. And that statute commences running at what time? “When the term of publication is complete and ended.” See Helm v. Smith’s Ex’r. 2 S. & M. 427. So that it seems that the statute is not an absolute bar. Something \ must be done by the administrator before it will attach; and it ' is incumbent upon him, before he can take advantage of it, to show that he has complied with the requisitions of the law. In other words, he must make a publication according to law. But the publication, in the present case, was not according to law. The administrator has no authority to make a publication of notice, except wherein he is authorized by statute to do it, and he is bound then strictly to pursue that authority. “ The acts of administrators are only legal so far as they are in pursuance of law.” See 1 How. 559.
    
      E. S. Fisher, for defendants in error.
    The record, in this case, presents but one error, and that is, that the court below erred in the instructions to the jury, that if they believed, from the testimony, that publication was made for six weeks successively, in the paper produced in court, although not commenced within two months after the grant of letters of administration, and that if the plain tiff’s claim was not presented in eighteen months after the last publication, they must find for the defendants. I insist that this instruction -is correct, and conforms in all respects to the statute.
    The counsel for the plaintiff insists that publication cannot be made by an administrator or executor, after the expiration of two months from the grant of letters. This position is not sustained by the statute. It is true the statute requires publication to be made in two months after letters granted ; but for whose benefit was this law enacted? We answer for legatees and distributees, and not for creditors. The demands of creditors must be satisfied before the legatee or distributee can assert his claim to the estate of the deceased. This statute was therefore enacted to require creditors to exercise diligence in presenting their - claims in a specified time, that the heir or legatee might ascertain his interest in the estate, and reduce it into possession by a certain period. A failure to make this publication within two months, is no injury to the creditor, but on the contrary, a benefit to him; certainly he cannot be heard to complain of that which was a benefit to him. The statute having been enacted to protect the interest of persons occupying the characters of legatees or distributees, they are the only persons who can complain of its infraction. If they have sustained any injury by the failure of the administrators, to act with that promptness required by law, they can assert their remedy, when it shall please them to do so, for whatever damages they may have sustained.
    
      The law is positive that claims not presented in eighteen months after publication shall be barred. See H. & H. 413, $ 92. The case referred to in 1 Howard, was a mere intimation of the court, as to the pleadings in that case, and was not a decision upon a state of facts, like the present case.
    
      William Thompson, in reply.
    The sole question in this case, is, whether the administrator, in order to bar claims not presented in eighteen months from time of notice for their exhibition, should make it appear that he commenced the publication of such notice within two months after the granting letters of administration.
    I rely much upon the brief made by A. C. Leigh in this cause, in behalf of the plaintiff in error, for whom I also appear.
    The act was intended, to some extent, for the convenience, aid, and safety of executors and administrators; and the publication of the notice within two months after the granting letters of administration,"&c. is a condition precedent to their getting the advantage of it. If they can depart from the provisions of the statute, and make the publication six days after the two months had expired, from the time of granting the letters, what would hinder them from doing it six years after ?
    Rut what, it may be asked, if the estate of the decedent should be prejudiced by the neglect of the executor or administrator ?
    If the estate should be prejudiced by the neglect of the executor or administrator to do his duty, the heir or distributee could hold him responsible.
    The better collocation of the words, to get at the meaning of the legislature, would be, “It shall be the duty of executors, &c. within two months after the. granting of letters, &c. to publish,” &c. ; and “ all claims, &c. shall be presented, &c. within eighteen months after the publication by notice, &c.”
    The section of the statute on this subject is to be taken entire, and is as imperative in the one requisition as in the other, and neither can be dispensed with.
    
      Suppose the administrator had given notice in some other way than by publishing for six weeks consecutively in the newspaper, would it answer? Even if it promised much more effectually to give notice to creditors, would it answer? It will not be contended it would.
    The failure of the executor or administrator to advertise in the two months after the granting the letters, does not relieve him from being compelled to settle up and distribute the estate in the time prescribed by law. He would have to depend on a refunding bond by the distributees, instead of a bar of the claims after eighteen months.
    The statute must often work injustice to creditors; and all its requisitions should be strictly complied with, to create the bar.
   Mr. Justice Thacheu

delivered the opinion of the court.

This is an action by the creditor of an estate against its representatives, and the statute of limitations, enacted concerning the presentation of claims against the estates of decedents, was relied upon as the defence. This defence involved the question, whether an administrator, in order to bar claims not presented in eighteen months from the time of notice for their presentation, should show that the commencement of the publication of such notice was made within two months after the grant of letters of administration to him.

The statute makes it the duty of executors and administrators to cause publication for the presentation of claims against the estates which they represent, to be commenced “within two months after the granting of letters testamentary,” &c. The same statute also provides that all claims against the estates of decedents shall be presented to the executor, &c. within eighteen months “ after the publication of notice for that purpose by such executor,” &c. H. & H. 413, sect. 92. The notice thus designed to be given is purely constructive. The creditor of an estate is not bound to take notice of any such publication commenced after the expiration of two months from the date of the grant of letters, and surely could not be bound by a notice commenced at any indefinite period, more than two months after the grant of letters. The provisions of the law in this respect must be strictly pursued by executors, «fee., and must be made so to appear, in order to bar the claims of creditors of an estate.

Judgment reversed, and new trial granted.  