
    Abigail Howes, Executrix, &c., versus Marshall S. Bigelow.
    No action lies by virtue of the statute of 1788, c. 66, § 5, (which gives a remedy against heirs, &e., after the executor or administrator has ceased to be liable,) against the husband of one who inherited personal property from the covenantor after the death of the wife.
    The plaintiff, as executrix of the last will of Edmund Howes, deceased, declares in covenant broken, and sets forth, that one Nathaniel Sparhawk, deceased, on the 20th day of May, 1790, by his deed of bargain and sale and of feoffment, for a valuable consideration therein expressed, sold and conveyed unto the said Edmund Howes, then living, certain parcels of land, in fee simple, and therein covenanted, that the premises so sold were free of all incumbrances, and that Jie would warrant and defend the same against the lawful claims of all persons ; that the said Nathaniel died on the 29th of December, 1794, and administration of his estate was committed to one Charles Pi.erpont, who accepted the trust, and gave bond and public notice of his said acceptance according to the statute ; that, after the expiration of four years from the giving of the said bond by the said Charles, one Lydia Sparhawk, * being by law entitled to dower in the said parcels of land as the widow of one Nathan Sparhawk, in August, 1799, recoveied against the said Edmund, then living and in the quiet possession of the said land, possession of one third part thereof, and $119.96 damage, and $ 19.76 costs of suit; that on the 27th of September, 1799, seizin and possession were delivered to the said Lydia, who has ever since claimed and held the same. And so the plaintiff says, that the said covenants were broken in the lifetime of the said Edmund.
    
    And the plaintiff further avers, that the said Nathaniel left an estate more than sufficient to satisfy the damage which so accrued to the said Edmund; which estate, being personal property, was distributed, at the time of the breach of the covenants aforesaid, by the said administrator, among the heirs at law of the said Nathaniel; all of whom were then minors, and of whom the said Edmund was guardian, and who then inherited and possessed the same by their said guardian ; that more than four years had elapsed, at the time of the breach of the said covenants, from the giving bond by the said Pierpont; so that no action could be maintained against him in his said capacity upon the covenants aforesaid ; and the said Edmund exhibited a claim for damages, by reason of the breach of said covenants, against the heirs of the said Nathaniel, within one year from the time when his said claim accrued, pursuant to the statute in such case made and provided ; and that, since the decease of the said Edmund, namely, on the 1st of May, 1811, one Olive Sparhawk, since deceased, a daughter and heir of the said Nathaniel, she and one George Sparhawk being then his only surviving heirs, and said Olive being possessed by inheritance of a moiety of his whole estate by one John Simpkins, then her guardian, intermarried with the said Bigelow, who thereupon became possessed of a moiety of the said estate, which moiety was sufficient to satisfy the damages which accrued to the said Edmund as aforesaid, and inherited the same *in right of said Olive, and thereby became liable, together with the said Olive, and at her decease became alone liable, by force of the statute in such case made and provided, to keep the said covenants, and to pay to the plaintiff, executrix as aforesaid, the damages aforesaid, which have not been paid. Yet the said Bigelow has not kept the said covenants, but has altogether broken the same. To the damage, &c.
    The defendant, after oyer had of the deed, pleads in bar, that the said Olive, at her decease, left two children, her heirs, who are still living ; and that he is tenant by the courtesy of all the estate of which she died seized ; but that the reversion thereof descended and came to her said children, and still is in them.
    To this plea the plaintiff demurs, and assigns for causes : — 1. That it is averred only, therein, that the defendant is tenant by the courtesy of such estate only, whereof the said Olive died seized ; but the plea contains no averment respecting the personal estate inherited by her as aforesaid, and possessed by her at the time of her said marriage. 2. That it contains no averment repugnant to any allegation in the plaintiff’s declaration. 3. That no issue is tendered to any fact alleged in the declaration.
    In another plea, after oyer had, the defendant says, that George Sparhawk, a brother of the said Olive, and a son and coheir of the said Nathaniel, is now in full life, and is not sued in this case ; and the plea concludes in bar.
    
      To this plea the plaintiff also demurs, and assigns these causes :—• 1. That the said plea does not begin either in bar or in abatement. 2. That it concludes in bar, whereas, if admissible at all, it should have begun and concluded in abatement. 3. That the matter contained in the plea is pleaded in bar, and not in abatement.
    These demurrers being joined by the defendant,
    Bigelow, of counsel for the
    defendant, observed, that he should not attempt to support the pleas, but should *contend, that the declaration disclosed no legal cause of action against the defendant.
    The action is plainly intended to be bottomed upon the statute of 1788, c. 66, § 5, which provides, that, where demands against the estate of a deceased person arise by virtue of any covenant, &c., that could not be claimed until after three years from the giving bond by the executor or administrator [by Stat. 1791, c. 28, extended to four years], “the claimant may have his remedy against those who -nherit the estate of such person, or devisees thereof, against whom i he demand lies, if such claim be made icithin one year from the time of its becoming due.’’’1 The intention of the legislature is very clear, that the claim, from which a covenantee is to have bis remedy, must be made by action. The declaration, then, ought to show, that such action was instituted within a year from the right of action accruing. Here, it appears that fourteen or fifteen years elapsed from the recovery of the dower to the commencement of the action.
    If by claim be understood nothing more than notice and demand in pais, still the declaration ought to show that such claim was made within the year, and the time and place of making it; for it is a traversable averment.
    But the defendant is not within the provision of the statute. He is not a devisee, nor did he inherit, except personal property through his wife. She is dead, and the plaintiff’s remedy died with her. Had the action been brought against the defendant and her, during her life, as his wife, and she had died pending the action, it would not have survived against him.
    The defendant came to possession of the property by virtue of a civil contract, for what is considered in the law a valuable consideration. He is a purchaser or assignee, and the right of action does not follow the personal estate to the possession of such an one.
    If, however, the defendant is liable to this demand, still he is not liable alone. The declaration shows, that one * George Sparhawk inherited jointly with the defendant’s wife. There is no averment of his death ; and, if he is in life, he ought to have been joined with the present defendant m the action.
    
      Burnside, for the plaintiff,
    considered the action to be of th° first impression ; but he contended that the statute would support it.
    It seems to be conceded, that, if the defendant’s wife were living, she would have been liable to the plaintiff’s demand in this case. Her liability would arise wholly from her having succeeded to the covenantor’s estate. During the continuance of the coverture, the defendant would have been liable with her, and solely for the same reason. The demand is not for a debt due from her when sole. It grows out of a charge upon the property, which followed it into the possession of the defendant; and it is on this ground that the demand is to be maintained against him. He may be said, within the equity of the statute, to have inherited this property. The statute uses the term estate, which is nomen generalissimum, and includes personal as well as real property.
    By claim in the statute cannot be intended action ; although by remedy undoubtedly action is to be understood. But the remedy is not limited to be sought within the year, although the claim is to be made within that term. The declaration is sufficient, then, in this respect, and indeed it follows the very words of the statute.
    But, if by claim is to be understood the bringing of an action, the limitation ought not to be applied in this case. The plaintiff’s testator was the guardian of the defendant’s wife from the death of Nathaniel Sparhawk until his own decease ; and he could not institute an action against himself.
    If George Sparhawk were living at the commencement of this suit, and if, by law, he ought to have been made co-defendant, this is a defect, of which the defendant should have availed himself by pleading it in abatement. But *the heirs or devisees are answerable severally, and not jointly. If it were otherwise, each would be liable, on execution, to the whole amount of the demand, which would be inequitable ; and this objection would have been made, had the present action been brought against both.
    If this action cannot be maintained, the plaintiff, with a perfectly just and legal claim upon the estate of Nathaniel Sparhawk, must be totally without a remedy, although the defendant has possessed himself of, and now holds, the estate of the deceased to a greater amount than would do justice to the plaintiff, and although no laches are imputable to her or her testator. This would be an opprobrium upon our jurisprudence which is not believed to be merited.
   The opinion of the Court was delivered by

Parker, C. J.

This action seems to be intended for an experiment, it being admitted to be the first of the kind which has been brought in the Commonwealth. The attempt is, to charge the defendant with damages for breach of covenants made by the father of his wife, on account of personal estate, which he received with her out of her father’s property ; she being dead when the action was brought.

The covenants declared upon were not broken, until long after the death of the covenantor ; nor unti' more than four years had elapsed after administration taken upon his estate, and notice given by the administrator, as required by law. According to the statute, therefore, of 1788, c. 66, an action might be brought against the devisees, or those who inherit the estate ; provided the claim was made within one year from the time when the right of action first in fact accrued. The plaintiff has alleged, that such claim was made within that time ; but she commenced no action until more than a year had elapsed.

We cannot but suppose that the legislature intended to limit the right of action against the heir or devisee under these circumstances, and not, as has been supposed by the counsel for the plaintiff, to leave them continually * exposed to a suit, provided a mere formal claim was made upon them. But on this point we do not decide ; as the decision of it is not necessary in the cause before us.

The decisive objection to the action, appearing in the declaration and pleadings, is, that the defendant, who made no contract with the plaintiff’s testator, is not privy in blood or estate with the original covenantor ; nor does he come within the provision of the statute which gives the plaintiff a remedy. The action may be brought against the heirs, or those who inherit the estate, or are the devisees thereof. The defendant stands in neither of these relations. Admitting that the action would have lain against him with his wife during her life, in consequence of her enjoying a portion of the personal estate of the covenantor, which is questionable, since by the marriage the personal estate became immediately transferred to the husband ; yet, by her death, all relation between the defendant and the estate of the deceased covenantor has ceased. Of the personal estate in the possession of the wife at the time of intermarriage, he is considered in law as the purchaser for a valuable consideration : and, although he became liable for her debts existing before the marriage, he is not liable to those which accrued after the dissolution of the marriage by death. As well might any person, who had by contract come into possession of the personal estate of a deceased grantor, be liable on the covenants contained in the deed, as the husband, who also, by contract, and for what is deemed a valuable consideration, became possessed of such property.

Upon this ground, we decide, that the first plea in bar is a suffic.ert answer to the declaration.

With respect to the second plea in bar, which states that there .s a brother of Olive, the defendant’s wife, living, who ought to nave been joined in the action, we give no opinion ; but only intimate, that, in former actions upon this statute, the joinder of all the heirs or devisees has been objected to, as tending to render one of them * answerable upon execution for the whole of the damages, although they may exceed in amount the value of the property descended to such one ; giving him only a remedy in an action for contribution, which may, in many instances, prove insufficient.

Upon the supposition that they may plead severally, and have several judgments entered against each, according to the estate for which he may be liable, actions so brought have been sustained. But the more convenient way certainly is, to sue each one for his proportion : and the only objection is the multiplying of suits. But this objection has not much force, when it is considered, that, by the other mode, a multiplicity of suits may be necessary to obtain contribution.

Defendant’s first plea adjudged good.  