
    JULY TERM, 1811.
    
      Hollowell v. The Devisees of Pope.
    
    The special verdict found that the bond declared upon is the act and deed of John Pope, the devisor of the defendants, and that they have lands by the devise sufficient to discharge the same: That the executors of John Pope did duly advertise the death of their testator according to the directions of the act of 1789; and that the plaintiff is and has been an inhabitant of the State; and that the suit was not instituted within two years from the qualification of the executors :—And they also pray the advice of the Court, whether the plaintiff is barred from a recovery by the said act of 1789. If the said act is to be considered as extending to claims against heirs and devisees, they then find for the defendants; but if the act is to be confined only to suits against executors and administrators, they then find for the plaintiff: And that the bond was not paid at or after the day.
    The case was argued at a former term, by Harris for the plaintiffs, and Gaston for the defendant; and now the opinion of the Court was delivered by
   Taylor, C. J.

It is very clear that the words of the act of 1789, c. 23, do not prescribe any time of limitation to suits brought against devisees; nor can the Court, after an attentive consideration of its equity and spirit discern any satisfactory ground upon which such a construction can be rested.

The creditors are required by the act to make demand within the time limited, against the executor or administrator, from whose qualification the period is computed; a provision necessarily implying that the claims must be of that description, which the representatives of the personal estate are, in the first instance, liable to pay; but where a creditor having a direct remedy, which he chuses to enforce against the heir or devisee, from a belief that the real fund is either more solvent, or more accessible than the personal one, it is difficult to imagine a reason why he should be compelled to make a demand of the executor or administrator; or why it is necessary for him to take notice of the time of their qualification.

The whole act relates, either to the proving wills and granting letters of administration, or to the recovery of such debts as are to be paid out of the personal estate; it points to the convenience of that class of creditors, and to the safety and protection of executors and administrators after a certain period, provided they perform specified duties, intended to apprize creditors of the death of the testator or intestate, and to secure the personal assets, so that they may be forthcoming to their demands. It is worthy of remark, that at the very same session, a law was passed, which, for the first time, rendered devisees liable to the payment of debts; so that had the Legistature designed to extend the limitation to them and heirs, they would probably have done so in express terms; and as the whole subject was then brought under view, as well the alteration of the law in such a material part, as the time of limitation prescribed by the act of 1715, the omission can scarcely be ascribed to inadvertence.

The act under consideration professes to supply the deficiency of the act of 1715; in which the limitation is expressed in terms essentially different. It fixes the death of the debtor as the period from which the time is to be computed; nor does it, like the act of 1789 require the demand to be made of the executor or administrator, thereby confining the operation of the law to such debts as they are liable to be sued for. From whom the demand is to be made must, under the act of 1715, be determined by the nature of the debt itself; it may be made of the heir, if he is liable by the nature of the contract; it may be made of the executor or administrator, if the creditor will not or cannot pursue the heir in the first instance. So that, in this view of the subject, there is no conflict between the two laws, which being intended to promote different objects, may well stand together. The act of 1715 was designed to protect the heir, and every part of the estate, from demands of whatsoever kind or nature; the act of 1789 was intended to protect the executor and administrator, from such demands as they alone are liable to in the first instance, or such as the creditor may elect to enforce against them.

That there should be a diversity of opinion as to the repeal of the act of 1715, between this Court and the Supreme Court of the United States, we cannot but regret; and if authority were a proper article on such a question, there is none to which we could submit with more pleasure, because we highly estimate the talents and integrity which adorn that bench. But the exposition and construction of the legislative acts of this State, will be sought for and expected in this tribunal by the citizens of the State, and we are bound to give that judgment which the best exercise of our own understandings will enable us to pronounce. Let there be judgment for the plaintiff.  