
    *Seig, Adm’r v. Acord’s Ex’or.
    August Term, 1871,
    Staunton.
    i. Statute oí Limitations — Barred Claims — Promise of Personal Representative.
      
       — A debt which is barred by the statute of limitations at the death of the debtor, can not be revived by the promise of the personal representative to pay it.
    2. Same — Same—Same— Case at Bar. — Where there are two joint administrators or executors, to one of whom the deceased was indebted in his lifetime, for money loaned so long' before the death of the debtor, that at the time of his death it was barred by the statute, the debt cannot be revived by the admission of the other administrator or executor that the money had been loaned and was due.
    John Falls, of Augusta county, died intestate in the year 1825, leaving a widow and several infant children ; and Mrs. Falls and her father, Jacob Acord, qualified in the County court of Augusta, as adminis-tratrix and administrator on his estate. Acord seems to have been the acting administrator, and he settled his first administration account before commissioners appointed by the County court in 1832. The last item of credit in this account is: “Lent money to John Falls by Jacob Acord, no interest charged, 1409. He again settled his account in 1843, when the commissioner ■ reported the estate of Falls to be indebted to him on the 1st of April 1843, in the sum of $1,029.93.
    In 1845 Acord filed his bill in the Circuit court of Augusta county, against the heirs of John Falls and Paul Seig, a purchaser of the interests of one of the heirs of Falls, to subject the land of which Falls died possessed, to the payment of the amount reported to be due him. This bill was taken for confessed as to all the defendants ; and in June 1850, a decree was made directing a commissioner to take an account of the amount due to the plaintiff ; and also appointing commissioners to sell the land. And in November 1848, the commissioners reported the sale at the price óf $2,900.
    Paul Seig having died, Henry B. Seig, his administrator, and one of his heirs, in May 1850, filed his answer, in which he claims to surcharge and falsify the accounts of Acord, settled before the County court; and among other credits in said accounts, he objected to the item of credit for $409, money lent; on the grounds that there was no evidence to sustain it, and that it was barred by the statute of limitations.
    in October 1850, Commissioner Hendren made his first report upon the accounts of Acord. He made two statements, in one of which the credit of $409 was allowed. This report was excepted to by Seig on this and other grounds.
    In February 1853, the report was by consent of parties recommitted to Commissioner Hendren; and in September 1853 he filed his report spoken of in the proceedings as No. 2. In the account stated in this report, he makes Acord creditor of Falls’ estate, on the 1st of November 1850, in the sum of $1,387.08, of which $1,223 was principal ; and the credit of $409 is allowed in this account. The defendant Seig filed exceptions to this report, and among others to this credit for $409. As to this credit, one of the commissioners who settled the account of Acord in 1832, testifies that the charge of $400 was stated by Acord to have been money loaned by him to his son-in-law, Falls, to aid him in the purchase of the tract of land he had bought from the heirs of George Falls; that he had never taken his note for it, but had merely charged him with it on his books; that Mrs. Falls, who was present during the settlement of the account, and heard the statement of Mr. Acord, said that she knew of her husband having borrowed *such a sum, and that the charge was correct. The witness further stated that the voucher 37, which. was for this credit, he believes was cut from the book of the plaintiff; and that that, and the admission of the administratrix, was the only evidence upon which the credit was given. The voucher referred to by the witness charges John Falls with $400 lent him by Acord on the 26th of August 1819.
    On the 9th of February 1855, the cause came on to be heard, when the court held that the right of the plaintiff to have a credit for the $400 loaned to Falls, depended upon whether five years had elapsed from the time it was demandable to the death of said Falls ; and as this did not satisfactorily appear, the cause was recommitted to Commissioner Hendren to take an account of the debts paid by Acord for Falls, or for his estate, which bound his land, and also to ascertain whether the time when the loan of $400 was to have been returned, was or was not more than five years before Falls’ death.
    In June 1855, Commissioner Hendren filed his report No. 3, based upon the decree of the 9th of February 1855. He reports that the credit of $409 was demandable more than five years before the death of John Falls, which occurred in August or September 1825; and that credit is therefore rejected from the account; and he reports the balance due to Acord on the 1st of November 1850, to be $208, of which, $183.39 was principal. This report was excepted to by the plaintiff.
    Acord having died during the pendency of the cause, it was revived in the name of his executors, and they presented what the court calls an informal petition, for a rehearing of the decree of the 9th of February 1855; and the cause came on to be heard on the 29th of November of the same year, when the court confirmed the report of the sale of the land, allowed the petition for a rehearing to be filed; and adopting Commissioner Hendren’s report No. 2, decreed that the decree of the 9th *of February 1855 be set aside; that the exceptions by plaintiffs and defendants to the report So. 2, be overruled, and the report confirmed; that the commissioner collect the purchase money and convey the land to the purchaser; and out of the money collected pay to the plaintiffs the sum of $1,387.08, with interest on $1,223 part thereof from the 1st day of November 1850, till paid. And, thereupon, Seig- obtained an appeal to the Court of appeals.
    Michie & Michie and Young, for the appellant.
    Baldwin and Fultz, for the appellee.
    
      
       Statute of Limitations — Barred Claims — Promise of Personal Representative. — Nor the proposition that a debt which is barred by the statute of limitations at the death of the debtor, cannot be revived by the promise of the personal representative to pay it, the principal case is cited and followed in the following- cases: Brown v. Rice, 26 Gratt. 473; Brown v Rice, 76 Va. 659; Smith v. Pattie, 81 Va. 663.
      In Switzer v. Nofisinger, 82 Va. 524, citing the principal case, the court said: “It is not pretended that there was any promise by the administrator, before the debt was barred, whereby the operation of the statute was prevented, as, according to Braxton v. Harrison, 11 Gratt. 30, and other cases, it was competent for him to do. Nor is it denied that a demand once barred cannot be revived by any acknowledgment thereof, as a charge against his decedent’s estate, by a personal representative. Code 1873, ch. 146, § 11.”
    
   ANDERSON, J.,

delivered the opinion of the court.

The only question raised upon the record, in the argument of this cause, is with regard to the credit of $409, allowed Acord, the appellant’s intestate, in the settlement of his administration account, with the estate of John Falls, deceased.

John Falls, the intestate, died in September 1825. Betters of administration on his estate were granted to his widow and Acord jointly. In 1832 Acord made a settlement of his administration accounts, with commissioners of the county court, appointed for the purpose, on his motion. In said settlement Acord was allowed to retain, out of the assets which came to his hands, his account of $409, against the intestate, for money loaned, dated August 26th, 1819. There was no bond or note, or other evidence of the debt, except the statement or admission of the administratrix, (proved by one of the commissioners), that it was correct. It thus appears that right of action accrued upon this account more than five years before the death of the intestate, and consequently, that it was barred by the statute of limitations. The whole case is therefore narrowed down to the single inquiry, where one of two joint administrators has an account against his intestate, which was barred by the ^'statute of limitations before the death of the intestate, can the bar be removed and the debt revived by the statement or admission of his co-administrator, that the account is correct?

It has been a question whether the bar could be removed and the debt revived by the promise of a sole administrator, to pay an account against the intestate which was barred by the statute of limitations in his lifetime. We are of opinion that it could not. By the revised Code of 1819, vol. 1, p. 492, sec. 16, it is made the duty of the court, in a suit against a personal representative, “for the recovery of a debt upon an open account,” “to cause to be expunged from such account, every item thereof which shall appear to have been due five years before the death of the” decedent. Mr. Robinson, in his new work on Practice, says, “to allow items due live years before a decedent’s death to become a charge upon his estate because of an acknowledgment or protnise made by his personal representative, would not have been very consistent with the legislative intent manifested” in this act. 1 Rob. Prac. (new) p. 577. In Tunstall & al. v. Pollard’s adm’r, 11 Leigh. I, 38, Judge Tucker says, “I incline to think an executor is always bound to make this defence; that is, the statute of limitations, unless it be waived by those who are interested.” And he cites with approbation McCulloch v. Davis, 22 Eng. C. L. R. 385, in which J. Bailey says, “Executors have no right to waive any legal defence to such an action. And if they did, and were to pay a debt against the recovery of which there was any legal bar, they would lay themselves liable over to those who were interested in the testator’s property. ’ ’ Also it was held in Rogers v. Rogers, 3 Wend. R. 503, that an executor cannot be allowed in his accounts a charge for retaining a debt barred by the statute of limitations. In Delaware it is considered, that if a debt was not barred at the decedent’s death, his administrator may, *by his promise or acknowledgment, keep it alive and free from the operation of the act. 1 Rob. Prac. (new) 575, citing Parkins’ adm’r v. Bennington, 1 Harrington’s R. 209. The Supreme court of Connecticut has decided that an acknowledgment by a personal representative that a stale demand is due, shall not be allowed to defeat the operation of the statute; he whose duty it is to settle the estate according to law, shall not subject it to debts by his declarations or admissions. Peck v. Botsford, 7 Conn. R. 172. While there is some diversity of opinion on this subject in some of the States, it is believed that no case can be found in Virginia where a different doctrine has been held. Tn the case referred to, supra, J. Tucker, in whose opinion Judges Cabell and Brooke concurred, was evidently inclined to sanction the doctrine as held in Rogers v. Rogers, and as expounded by Justice Bailey in McCulloch v. Davis.

But Bishop v. Harrison’s adm’r, 2 Leigh 532, decided by this court, is relied upon’ by the appellee’s counsel, as an authority to the contrary. We do not think it is. The opinions of the judges were evidently given in reference to a case where the debt had not been barred in the lifetime of the testator, and the promise by the executor was not relied on to remove an existing bar, but to exempt the case from the statute of limitations. This clearly appears from the language of Judge Carr, in his opinion, delivered in the case. “Here (he says,) was a debt claimed of the testator; to whom was the creditor to look? To the representative. He applies to the executor while the debt is yet untouched by the statute of limitations, and tells him here is a debt due me by your testator, and here is the proof of it. It is a debt due by simple contract, I must sue at once. The executor replies, I see the debt is just, and I tell you before this witness, I will'pay it; therefore, you need not bring suit.” It is evident, that all the judges in this case were speaking with reference to a promise of the executor to *pay a debt which had not been already barred — a debt which had been “untouched by the statute of limitations;” and Judge Carr seems to rely upon that, as a warrant to thé executor for his promise to pay the debt. It seems to me, therefore, that as the law then stood, as well as now, a debt against the decedent barred by the statute of limitations in his lifetime, could not be revived and made a charge upon the estate by the promise of the executor or administrator to pay it. And consequently, if it was a debt due to the personal representative, in his own right, he could not retain it out of the assets, and charge the estate with it.

But in this case, there is no promise of the administratrix to pay. It is only an admission, by one of a joint administration, that the account was correct. And where there is a joint administration, if the admission of one could bind the estate, which is, to say the least, problematical, (Tullock v. Dunn, Ry. & Mood. 416, 21 Eng. C. L. R. 478; Scholey v. Walton, &c., 12 M. & W. 509, cited 1 Rob. Pr. (new) p. 573,) it seems to be well settled, that the acknowledgment by a personal representative, that the dlaim is just, does not imply a promise to pay, as it would, if the acknowledgment had been made by the decedent himself; and, therefore, does not create a charge against the estate. C. J. Abbott, in Tullock v. Dunn, supra; Thompson v. Peter, 12 Wheat. R. 565; Oakes v. Mitchell, 15 Maine R. 360; Bunhur v. Athedyn, 35 Id. 364; cited 1 Rob. Pr. (new) p. 575; Head’s ex’ors v. Manners’ adm’rs, 5 J. J. Marsh. R. 255. We are of opinion, therefore, that the decree of the Circuit court is erroneous in overruling the exception to this item in the account of the commissioner, designated as report No. 2, and in allowing the same as a debit against the estate of John Palls, deceased. But as the report of commissioner No. 3, filed the day of June 1855, ascertains what is the true state of account, omitting this item as a debit against the estate, we are of *opinion that the Circuit court erred in adopting the report No. 2 of Commissioner Hendren, and in not adopting report No. 3 of said commissioner. The court is of opinion, therefore, that the decree of the Circuit court, so far as it is in conflict with this opinion, should be reversed, with costs to the appellants, and in all other respects, should be affirmed.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that report No. 3, instead of report No. 2, of Master Commissioner Hendren, shows the correct balance due to the plaintiff’s testator, for which he is entitled to satisfaction out of the proceeds of the land sold under a decree made in this cause; and that the commissioners who sold the said land, out of the money to be collected by them according to the decree appealed from as aforesaid, should have been directed to pay over to the plaintiff or his counsel the sum of two hundred and eight dollars, with legal interest on one hundred and eighty-three dollars and thirty-nine cents, part thereof, from the 1st day of November 1850, till paid, instead of the sum of $1,387.08, with legal interest on $1,223, part thereof, till paid; and that the said decree is erroneous in the respect aforesaid but no other; therefore, it is decreed and ordered that so much of the said decree as is above declared to be erroneous be reversed and annulled; and the residue thereof affirmed; and that the said appellee, James Wilson, surviving executor of Jacob Acord, deceased, out of the estate of his said testator, do pay to the appellant his costs by him expended in the prosecution of his appeal here; and the cause is remanded to the said Circuit court for further proceedings to be had therein in conformity with the foregoing opinion and decree; which is ordered to be certified to the said Circuit court of Augusta county.

Decree reversed.  