
    James Spicer, Respondent, v. George Raplee, Individually and as Sole Acting Executor, etc., of Joshua Raplee, Deceased, Appellant.
    
      Executors cannot bind the estate to pay a claim ban'ed by the Statute of Limitations— waiver of the statutory bos'by the pas'ties in interest is good.
    
    Upon the trial of an action brought to enforce a claim against the estate of Joshua Raplee, of whom George Raplee was the sole acting executor, it appeared that in-November, 1888, the plaintiff’s assignor, Oliver Raplee,, presented the claim to George Raplee, a very large part of which was barred by the Statute of Limitations at the time when Joshua Raplee died; that George Raplee, as executor, accepted -the claim in writing as a valid and existing claim - against the estate of Joshua Raplee; that George Raplee subsequently borrowed ■ the account and acceptance and took it to his attorney, who removed the signa- , ture from the acceptance; that after such acceptance George Raplee paid Oliver Raplee a considerable sum upon the claim; that subsequently, and in May, 1890, “ the seven other heirs at law ” of Joshua Raplee signed an instrument requesting the executors to pay the claim in question,' and stating that if the executors-did so, they would not make any claim against the executors by reason of their action in the premises.
    
      Held, that while an executor cannot bind the estate by a consent that a claim, barred by the Statute of Limitations, be paid, and is bound to set up the Statute of Limitations whenever applicable, yet the statute may, with the consent of the parties interested in the estate, be waived;
    That as in this case George Raplee had admitted the validity of the claim, which was binding upon him personally, and as the other heirs and devisees had evidenced their wish that the claim should be paid, the Statute of Limitations ' must be deemed to have been waived.
    Appeal by the defendant, George Raplee, as executor, etc., of Joshua Raplee, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of- the. clerk, of the county -of Yates on the l;3th day of May, 18,95, upon the report .pf a referee.
    The .complaint in this action is against George Raplee, as sole executor of Joshua Raplee, deceased, and against.him individually. Joshua Raplee died on the 31st day of August, 1888, in the town of Barrington, Yates county, leaving a last will and testament in which he -nominated George Raplee -one of his. -executors. . The instrument was admitted to prohate about the 1st of October, 1888, and the complaint alleges that “the above-named defendant duly qualified as such executor and was at all the times hereinafter named the sole acting executor of said estate.” The complaint also alleges that “ On or about' the 21st day of November, 1888, one Oliver Raplee duly presented to said George Raplee, sole acting -executor as aforesaid, a claim in writing for $1,115.50 and interest from November 1st, 1888, against the estate -of Joshua Raplee, deceased,” on account -.of goods and materials sold- and furnished, and for work done at the request o.f -said -Joshua. Raplee-
    The referee finds “ 3... That the greater part of said -.claim, to wit, about the sum of nine hundred and seventy -dollars, was barred by the Statute of Limitations at -the time of the -death of the said Joshua Raplee. -4. That on. the day -of -the presentation -of the .account the -said George- Raplee,,,as such -executor, subscribed a written ¡acceptance .of -said -claim.'” The referee -finds that Oliver -Raplee relied upon the-acceptance and took no 'further steps to prove the claim against-the .estate. The referee also finds: “ 6. 'That after the -said George Raplee had., -as .aforesaid, subscribed his name to said written acceptance -of said .account, he -borrowed the-aceoimt and acceptance and took it to his counsel, -the late 'Charles S. Baker, and his -counsel removed the name' so subscribed to said acceptance"; that the defendant, .as such -.executor, prior to .and .including the ,21st day of December, 1888, paid to said Oliver, to -apply on. Ins .account, the.sum-of .$125.¡00”
    -On the 15th day of 'May, 1890, counsel for the .defendant -prepared a written request that the .claim he paid -by the executors, which was, “ within a few days of its preparation, subscribed by the seven ether heirs, at law of-said deceased.” On -the 1st. day- -of • September, 1-89-1, the said Oliver Raplee assigned to the. 'plaintiS said Aim, and-payment thereof was -demanded before this action was commenced. The deceased held a note made by Oliver Raplee for $200, which the defendant set up as a counterclaim .and which the referee allowed. The defendant, as sole acting executor, admits in his answer that the claim was presented to the executors.
    The answer .set up the six years’ Statute of Limitations. The referee dismissed the complaint as to George Raplee individually without costs. The referee allowed the counterclaim and deducted the payment of $425, and found a balance in favor of the plaintiff for $675 with costs.. The defendant appeals from the judgment.
    
      William S. Briggs, for the appellant.
    
      William T. Morris, for the respondent.
   Hardin, P. J.:

The appellant insists that there was an accord and satisfaction produced by the payment made by the executor to Oliver Raplee and the transaction accompanying the payment. He calls our attention to the testimony given by the defendant in respect thereto; and the defendant as a witness refers to an interview that took place at his home on the 30th day of December, 1888) when Oliver Raplee applied to the defendant for some more money upon the claim. The defendant testifies that in the interview with Oliver, Oliver consented to take $250 .upon the account in payment in full -thereof. He also testifies that a day following the conversation he met Oliver ,at one Afchain’s and paid him the $250, and took a receipt. The defendant’s wife was called as a witness ..and she testifies that in the interview spoken of by her husband they (the defendant and Oliver Raplee) finally decided on $2.50 ; she said there had been $150 paid .at one time .and $25 at another, and that the $250 was in addition thereto, and she testifies that they were to meet at Dundee .the next day when the $25.0 was to be paid. To meet .the evidence thus given by the defendant, the plaintiff called as -a witness Oliver Raplee, who testified that George did not say to him that,: “ If I would clear out and not bother any more he would give me $70 j no such word; George didnot tell -me that nor anything like it.”

(2) Hpon the trial the plaintiff produced an agreement purporting to -be -executed. by -the heirs at law of the deceased. It was offered in evidence after its execution was proven by. the plaintiff. Although some objection was taken to its reception as evidence and overruled, there was no exception taken to the ruling receiving it. The paper was received in evidence and read as follows:

■ “ "We, the undersigned, heirs at law, devisees and legatees of Joshua Raplee, deceased, hereby request Daniel Raplee and George Raplee, the executors of the last will and testament of the said deceased, to allow and pay the claim presented against the estate of said deceased by.Oliver Raplee, and if such allowance and payment is-made by said executor, no claim whatsoever will be made by us, or either of us, against the executor * by reason thereof, but the same shall be credited and allowed to them on the settlement of their accounts as such executors.
“ Dated May 15th. 1890. E. RAPLEE.
“MART FITZ WATER.
“HIRAM RAPLEE.
“ELIZABETH WALLING.
“ JANE ARWINE.
“ CELESTIA WALLING.
“DANIEL RAPLEE.”

The paper seems to have been procured at the instance of the defendant by Oliver Raplée, and it seems to have been drawn by the attorney for the defendant for the purpose of relieving him from and objection that.might otherwise be made by the heirs at law upon the settlement of his accounts before the surrogate. Apparently the game was procured for the purpose of avoiding all questions that might be made as" to the propriety of the defendant’s action in having accepted the account and promised to pay it, and for the purpose of waiving all questions as to any supposed defense, of the Statute of Limitations. The account of Oliver Raplee, containing items amounting to $1,145.50, was verified by him by the usual oath on the 21st of November, 1888, and presented to George Raplee as the executor of their father’s will, and he thereupon accepted that accoiint apparently in the following language: “ The foregoing account having this 21st day of November, 1888, been presented to me, one of the executors of the estate of Joshua Raplee, deceased, by Oliver, as a demand due and owing to him from said estate, I ■hereby, as such executor, accept the same as a valid and existing demand against said estate, due and owing said Oliver Raplee, and as such executor agree to pay the same out of the avails of said estate. ■ :

“ Dated November 21s¡5, 1888.

_ ?

“ Exeoutor.”

It appears by the evidence that subsequently George Raplee borrowed the paper from Oliver to take it to his attorney, Mr. Baker, and that while Mr. Baker had it in his possession the signature of George was torn therefrom, and when the account and paper ivere returned the paper was in a mutilated condition. There is no evidence in the case tending to show there was any assent or authority given by Oliver that the signature of George should be erased or detached from the agreement signed by him. Subsequently, and apparently on May 15, 1890, the heirs at law and devisees and legatees signed the instrument wherein they requested the executors “to allow and pay the claim presented against the estate of said deceased by Oliver Raplee, and if such allowance and payment is made by said executor, no claim whatsoever will be made by us, or either of us, against the executor by reason thereof, but the same shall be credited and allowed tó them on the settlement of their accounts as, such executors,”

The referee has found that the persons signing the instrument from which the quotation has just been made are “ the devisees and legatees under his (deceased’s) last will and testament.” There is no specific exception to that finding of fact, nor do we find any exception in the case which warrants the appellant in insisting that that finding of fact was erroneous. It is found that the executor has property enough of the estate of the "testator in his hands to pay the claim. The referee allowed the defendant the benefit of the payments which had been made on the claim, and also allowed him the counterclaim,' the note for $200 which the deceased held at the time of his death against Oliver, and reported the balance to be $675. The referee, upon the facts found by him, stated as conclusions of law, viz.: “ That the written request signed by the seven heirs at law of the said Joshua Raplee, deceased, for the executors to pay said claim, and the active part taken - therein by George Raplee, relieved the claim .of bar of the -Statute of Limitations, ¡-and the .said. George Raplee thereon became bound- to pay the same out of the assets of ■paid estate in Ms hands as such executor.” In the judgment-entered upon the report, of the referee the following language is used: “ It is adjudged by the court that said plaintiff recover of the said defendant, as such executor, the said sum of $675.00.” -

1-t seems to be settled that it is the duty of an executor or administrator to set up the bar of the Statute of Limitations to a claim presented, and that if he omits to do so, he will not be allowed in his accounting any sum paid • upon.a debt which, ..at the time of its payment, by him, was barred by such statute., (Willcox v. Smith, 26 Barb. 317; Gilbert v. Comstock, 93 N. Y. 484; Butler v. Johnson, 111 id. 204.)

It has. been repeatedly held that the defense of the Statute of Limitations is a personal privilege, and' that no one can compel any one to take .-advantage-of it,if he chooses .not to.-' “He may interpose the Statute of Limitations, but he may waive it also. The law •does not compel him to resort to this defense, nor can ethers insist upon it for him.” (Brookfield Nat. Bank v. Kimble, 76 Ind. 195.) And in Halliburton v. Carson (100 N. C. 99) it was held “ That the law does not require, an executor to make Ms testator ‘sin in Ms grave ’ by setting u'.p.-an uneonscieiitious defense,”

It kás been held in several of the States, that an admimstrator or . •executor represents the testator, so far. - as .-the personal property is concerned, and that from the personal property he can pay a claim that is well founded, although, it is hatred, without being obliged to. take advantage of the Statute of Limitations. The rule seems to be. otherwise in this State, as.appears by the doctrine laid- down in Gilbert v. Comstock (93 N. Y. 484) and Butler v. Johnson (111 id. 204).

• In Webber v. Williams College (23 Pick. 302) there was a proposition that, .if a ■ creditor would forbear bringing an action for.» year, lie should have the sanie rights that he then had. The creditor did forbear- until after -six years’ time had run, and the. court held that the agreement made was “a.good waiver of the Statute, of Limitations,”- There seems to he no foundation for the-applioa-, tion of the doctrine of estoppel to the facts as presented in this case. (Crawford v. Lockwood, 9 How. Pr. 547; Shapley, v. Abbott, 42 N. Y. 447.)

The evidence disclosed at the trial warrants' us in supposing that funds-sufficient, resulting from the personal property of the deceased, were in the hands- of the defendant for the payment of the indebtedness presented by the- claim of the plain tiff,' and that the owners of that fund consented and requested that the- claim in question be paid therefrom. Although the defendant had no power to bind the other heirs at law at the time he signed- the instrument consenting, that-the claim be paid out- of' the funds of the estate,, it was- competent for him to bind himself as one- of the parties interested in the fund, and, when he attached his signature to- the- instrument- consenting that the claim be paid, it is fair to- presume that it was his- intention then to assent, so- far as he was interested in the estate, to- the payment of the claim out of the fund's of the estate. He never obtained the consent of his brother, the owner--of the claim, to Withdraw Ms name from the instrument which evidenced the consent; It,, therefore, was efficient and binding upon him. The other instrument, executed by the other heirs and devisees, became obligatory upon them and evidenced their consent, as well as desire, that the claim should be paid out of the fund in' which they were interested. It-seems to have been assumed by Portee, J., in McLaren v. McMartin (36 N. Y. 91) that a demand barred by the statute can be revived “ with, the consent of those interested in the estate.”

We see nothing in Matter of Van Slooten v. Dodge (145 N. Y. 330) helpful to the appellant in this case. In that case there was no-original debt or liability of the deceased,, and an expression was used in the opinion as follows: “ An executor cannot subject the estate in Ms hands fbr administration to Some new liability, either by his contract or by bis wrongful act.” Under such circumstances, it seems that the conclusion of the referee, .“ that- the- heirs at law of Joshua Raplee relieved the claim of bar of the Statute of Limitations, and the said George Raplee thereon- became- bound to pay the same out of the assets 'of said' estate in his hand's as such executor,” is reasonable and should he sustained. . It is well, settled now that the Statute, of Limitations acts only upon-the remedy, and. that it- does not impair the obligation of a- contract,■ or pay a- debt or produce a presumption' of payment, “ but is- merely a statutory bar to a recovery.”, (Johnson v. A. & S. R. R. Co., 54 N. Y. 416; Hulbert v. Clark, 128 id. 298.)

In Utica Insurance Company v. Bloodgood (4 Wend. 652) there was a stipulation in the note in the following words : I hereby agree not to plead the Statute of Limitations in a prosecution for any balance that may be due on said note.” In the course of the opinion delivered by Southerland, J., he remarked: The defendant is estopped by his stipulation from availing himself of the Statute of Limitations. This stipulation is not confined to an action upon the note itself; it was undoubtedly intended to apply to the debt or loan of which the note was the evidence,” and in that case the defendant was not allowed to avail. himself of the Statute of Limitations.' (See 13 Am. & Eng. Ency. of Law, 717.)

. If the1 foregone views are adopted they will result in the affirmance’ of the judgment entered upoir the report of the referee awarding the plaintiff a recovery for the sum of $675, the balance remaining unpaid unon the claim-; ■

AH concurred.

Judgment affirmed, with costs. 
      
      
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