
    McLAREN against McMARTIN.
    
      Court of Appeals,
    
    
      January, 1867
    Statute of Limitations.—New Pbomise.
    An indorsement made upon a note, by the payee, admitting receipt of part payment, is not sufficient, by itself, to prove a part payment for the purpose of removing the bar of the sSfctute of limitations, and enabling the payee to maintain an action for the balance. When so offered, the indorsement must be regarded as a mere declaration, by the payee, in his own favor.
    A demand which has already been outlawed at the death of the original debtor, cannot be revived by a part payment made by his administrator. If an administrator has power to revive such a demand at all, without the consent of those interested in the estate, it can only be done by his express promise to pay.
    Appeal from a judgment of the Supreme Court.
    The action was brought by Peter McLaren, against Martin McMartin, as the administrator ©f Daniel McMartin, Jr., upon a promissory note for $100, made by Daniel. The note was made April 19,1835, and was drawn payable one' year from date. The action was commenced September 23d, 1854; eighteen years after the maturity of the note, and seven years after the death of the maker and the appointment of the defendant as his administrator.
    To meet the defence of the . statute of limitations, the plaintiff relied upon partial payments. Two such payments were alleged to have been made by the maker in his lifetime; these were denied by the answer. A third was alleged to have been made by the administrator on March 3, 1848. This allegation was admitted by the answer.
    On the trial the note was produced, and bore indorsements, in the handwriting of the payee, admitting receipt of partial payments at dates during the maker’s lifetime. No other proof was offered that such payments were in fact made.
    The note also bore an indorsement: “ March 3, 1848. Deceived fifty dollars on the within, by the hands of Martin McMartin.” In addition to this evidence of the payment, the son of the plaintiff testified to such payment having been actually made; but that the payment and the indorsement were made on March, 3, 1849, instead of 1848, as erroneously stated in the indorsement.
    The justice before whom the cause was tried, upon these facts directed a verdict for the plaintiffs, subject to the opinion of the court at general term. The plaintiff moved at general term in the Fourth District for judgment; but the court ordered judgment for defendant; from which the plaintiff now appealed.
    
      A. McFarlan, for the appellant.
    
      M. McMartin, for the respondent
   Porter, J.

The demand, for the recovery of which the action was brought, was extinguished on April 12, 1842. It was neither continued nor revived by any act or admission of the maker. The indorsements written by the payee were mere declarations in his own favor, wholly unsustained by the proof. The fact that they were shown to the defendant, after the death of the maker, does not change their nature, nor impart to them the force of legal evidence. The underwritten indorsement proves the fact it states, but nothing as to antecedent payments or indorsements.

If, then, the extinguished demand was ever revived, it was by the act of the administrator, two years after the death of the maker, and seven years after the claim was barred. The statute of limitations having attached before the enactment of the Code, the contract could not be reinstated by any subsequent acknowledgment or promise, unless “ contained in some writing signed by the party to be charged thereby.” (Code, § 110; Esselstyn v. Weeks, 2 Kern., 635.)

The indorsement relied on by the appellant is in these words : “ March 3d, 1848, received fifty dollars on the within, by the hands of Martin McMartin.” It does not constitute a new contract, either in form or in legal effect. It is precisely what it purports to be, a statement in his handwriting, of the fact, the date and the amount of payment, and the name of the person from whom it was received. It proves this, and nothing more. It is not signed by the administrator; it contains no undertaking in behalf of the estate, and it neither affirms nor denies the existence of facts of which he had no personal knowledge. Thé indorsement shows precisely what the pleadings admit, that this payment was made by the defendant; and the debt was not thereby revived, unless such payment was sufficient to revive it. The proof corrects the error in the date, and shows that the indorsement was in fact made a year after it purports to have been written.

The Code provides that th» section above referred to shah not alter the effect of any payment of principal or interest. (Code, § 110.) The appellant .erroneously assumes, that, -under the antecedent rules of law, the effect of a partial payment by an administrator was to revive a demand extinguished in the lifetime of the intestate. Payment by the debtor personally, or by his direction and authority, is evidence now, as heretofore, from which an acknowledgment of the residue of the debt may be implied. It does not, however, even in that case, constitute an express promise, nor amount, per se, to a revival; but it is evidence from which an intention to renew the original promise may be inferred. (Shoemaker v. Benedict, 1 Kern., 185.) So, in the case of a demand existing at the death of the intestate, and which the administrator is bound to pay, it would be legitimate to infer, from a subsequent partial payment, an acknowledgment of his continuing the obligation.

But, in respect to demands barred at the death of the intestate, the administrator is under no such obligation. The immunity of the estate is absolute. His position is purely fiduciary. It is Ms right and his duty to apply the funds in Ms hands to the satisfaction of all legal demands; but he has no retrospective authority to contract debts in the name of the intestate, or to revive those which were extinguished by law in his lifetime. There is a moral obligation on the debtor to pay demands which he knows have never been satisfied; but there is none on his executor or administrator to pay claims which the statute has barred. He is not at liberty to misapply assets which the law awards to the creditors and next of kin.

It has been questioned by eminent jurists, in this country as well as in England, whether a demand barred by the statute can be revived, even by an expressed promise of the personal representative, unless with the consent of those interested in the estate; and it is well settled that, without an express promise, there can be no revival,' by an executor or administrator, of a debt extinguished in the lifetime of the decedent. This is the only mode in which he can give to the holder of an outlawed demand against the estate the status of a legal creditor in the courts; if, indeed, it can be given in that mode, within the principles settled by the more recent decisions. There was no such express promise in this case, and the defendant was therefore entitled to judgment. (Tullock v. Dunn, Ry. & M., 416; Thompson v. Peter, 12 Wheat., 565; Blood-good v. Bruen, 4 Seld., 362, 369.) In Bloodgood v. Bruen, Judge Gardiner, in delivering the opinion of the court, said: “But if we assume, with the court below, that Bruen, as executor of the estate of T. H. Smith, admitted this demand, an admission in that character cannot, it seems to me, in the nature of the case, amount to a contract which will bind the estate of the testator. It is no part of the duty of an executor to subject the estate of his testator to a demand from which it was by law exempt. If he can do it in any manner, it must, at all events, be by a positive contract. It has accordingly been held, even in England, that there must be an express promise, and that all the executors must unite in it.”

The doctrine which at one time prevailed, that an outlawed demand might be revived by a partial payment, not made by the immediate debtor, but by a joint contractor, an assignee or a trustee, is no longer recognized in our courts. (Roosevelt v. Mark, 6 Johns. Ch., 267, 292; Pickett v. King, 34 Barb., 193; Bloodgood v. Bruen, 4 Seld., 362 ; Shoemaker v. Benedict, 1 Kern., 176, 185 ; Winchell v. Hicks, 18 N. Y., 558; Pickett v. Leonard, 34 Id., 175.)

It follows, from these views, that the indorsement in the handwriting of the defendant should be treated as the mere statement of the fact of payment, by one who had no authority in this form-to bind the estate; and that, even if it had been authenticated by his signature in his representative capacity, it would have proved nothing but the making of such payment, and would have amounted neither to a renewal of the note, nor to an express promise to pay the residue of a claim, which did not constitute a legal debt of the intestate.

The judgment of the Supreme Court should be affirmed

All the judges concurred in the foregoing opinion, except that Grover, J., read an opinion for reversal, in which Hunt, J., concurred.

Judgment affirmed  