
    NOVEMBER TERM, 1848.
    John Henderson, Executor of Valentine C. Ray, deceased, vs. Francis Ilsley, use of Duvivier Woodlief et al.
    Claims barred by the statute of limitations at the time of the death of the' original debtor, are not revived by the subsequent promise of the executor- or administrator to pay them ; where, in the case of an executor, no more-than ordinary powers are conferred by the will, j
    
      Semble, the same rule prevails where the bar was not complete at the debtor’s death ; as well as, where the statute had not commenced running when the debtor died.
    Whether an executor or administrator is or is not bound to plead the statute of limitations,— Query ?
    
    Where a witness in his deposition speaks of a fact as within his recollection, but to fix the time of its occurrence has to refer to letters in his possession, the circumstance that in his answer he speaks of having made such reference but does not produce the letters, will not exclude the answer from being evidence.
    
      The period of nine months after grant of lefters, within 'which suits against executors and administrators are prohibited, must be added to the time prescribed by the general statute of limitations, in order to constitute the required period for the bar of a claim.
    The time prescribed by the statute, within which claims must be presented to executors and administrators for allowance and payment, does not begin to run until after the expiration of the sixty days required by law for the publication of notice of the grant of letters.
    The presentation of a claim to an ex'ecutor or administrator to save the bar of the statute, need not be in any particular form, provided it be sufficient to give such notice to the executor or administrator of the existence of the claim, its character and amount, as will enable him with reasonable certainty to provide for its payment.
    In error from the circuit court of Warren county; Hon. George Coalter, judge.
    In March, A. D. 1843, Francis Ilsley, for the use of Duvivier Woodlief &, Co., sued John Henderson, executor of Valentine C. Ray, deceased, in assumpsit, upon two notes; one for $3637, due January 1, 1835, the other for $3666, due February 1, 1835; both dated October 10th, 1833; each payable to B. Hughes, and by him indorsed to R. H. Buckner, and by Buckner to the plaintiff. The declaration contained a count also for money had and received, and a promise by the executor. The defendant plead 1, non-assumpsit; 2, the statute of limitations of six years; 3, that the claim was not presented in eighteen months after the qualification of the executor; and 4, payment and off-sets. In April, 1845, the case was tried, and the jury found for the plaintiff the sum of $2434-08.
    From the bill of exceptions, sealed on behalf of the defendant, it appears that the plaintiff read the notes sued on and the deposition of Charles A. Lacoste, who proved that the originals of three letters, (copies of which were filed with the interrogatories to him,) written by him, signed by Briggs, Lacoste & Co., of which firm he was one, were sent by him to their respective addresses, either by mail or other safe conveyance. The first letter dated Natchez, June 23, 1837, directed to John Henderson at Warren-ton, Miss., called his attention as executor of V. C. Ray, deceased, to the account due them of $2033-73, duly certified by affidavit.
    
      The second letter to the same address, dated January 22, 1S38, states, that “ Mr. R. H. Buckner, of Clinton, informs us that you have made him the promise to settle immediately his and our accounts against the estate of the late Y. C. Ray. You have had our claim duly sworn to some time in your possession ; it is $2033-73 cash, 21st June, 1837, as you will perceive by reference to the statement rendered you last June.
    “ Mr. Buckner’s claim is for a balance due to him on three notes for $11,000 in the aggregate, and secured by mortgage on the plantation of the deceased; said balance due 4th January, 1835, is $1333, and bears interest from that date.” The letter requested early payment of these claims.
    The third letter dated January 22, 1838, was addressed to R. H. Buckner, at Clinton, Miss., and informed him that his and the firm’s claims against the estate of Ray had been forwarded to Henderson, the executor, for payment.
    This witness states further, that this balance, due on Mr. Buckner’s claim of $1333, was that referred to in the letter to Henderson of January 22, 1838; and was yet unpaid, unless it had been paid since the 29th of November, 1842, when he passed it off to a creditor of Briggs, Lacoste & Co.
    He continues, “on the 10th of July I wrote as follows to Robert H. Buckner over the signature of Briggs, Lacoste & Co., ‘John Henderson, of Warrenton, promises to pay your and our claims out of the coming crop of Ray’s estate.’ I take this quotation from the letter book of Briggs, Lacoste & Co., in which were recorded accurately copies of all letters written by or in the name of said firm, and which is now in my possession. I can therefore safely assert that I had, previously to the 10th of July, 1837, conferred with Mr. John Henderson, the executor of Y. C. Ray, on the subject ,of Buckner’s claim on the estate of Ray for the balance $1333, referred to above, (I have never known of the existence of any other claim of Buckner on said estate,) and that he (Henderson) promised me he would pay it out of the ensuing crop of the estate. The precise date of my interview with Henderson I cannot now fix positively; it occurred, I think, in his store or office at Warrenton. Miss.; I think that I then handed him a statement, showing said balance of ¡$1333, or perhaps I had previously forwarded him said statement; the debt was at all events then acknowledged by him, and payment merely promised out of the next crop of the estate.”
    He adds further, that this claim of $1333 was wholly distinct from the debt for $2033-73 due Briggs, Lacoste & Co., which had been paid by Henderson.
    On cross-examination he disclaims all interest in the debt sued for, and asserts positively that previous to the 10th of July, 1837, Henderson had full knowledge of its existence. It had been placed in Briggs, Lacoste & Co.’s hands by Buckner, as collateral security for a debt due by Buckner to them; and was held by them at the same time that they held, and Henderson paid, the other claim.
    The defendant objected to the admission of the answers of the witness; and the court below excluded that part of his answers referring to the copies of the letters, but admitted the residue and the defendant excepted.
    The deposition of R. H. Buckner was taken. He proved that he sold to B. Hughes and Ray a plantation and negroes, and took in part payment three notes amounting in all to $11,000; of which the two notes sued on were part. These notes he assigned to the house of Reynolds, Marshall & Co., or Briggs, Lacoste & Co., their successors, he could not not say positively which, as collateral for a debt he owed them. Ray or Plughes paid him $6000 at or about the maturity of these notes; leaving $5000 due the house. This was all that had ever been paid to him; and the residue of $5000 was still due, unless it had been paid to Briggs, Lacoste & Co.; but that he had understood Henderson had paid one of the notes to them. That in the year 1837, after Ray’s death, he informed Henderson of the $5000 being due on these notes; and Henderson promised him to pay them.
    It was then proved by the defendant that he was qualified as executor in January, 1837, and published notice thereof on the first of February, 1837, until the 8th of March, 1837.
    
      He then offered to read to the jury an agreement between B. Hughes and Ray, signed by the former, that B. Hughes was to pay Buckner $5000 on these notes for Ray. It was excluded and exceptions taken.
    He then offered to read an account sworn to by Lacoste of the indebtedness of Ray to Briggs, Lacoste & Co., showing a balance due of $2254-10 on the 1st of January, 1839. This was also excluded and exceptions taken.
    He then offered to read a receipt of Briggs, Lacoste & Co. for $1000, paid on account of their claim against Ray’s estate, dated January 31st, 1839; this was likewise excluded.
    A note of Ray’s for $7375, payable to, and indorsed by B. Hughes, and also indorsed by Buckner, and taken up by the executor, was also offered by the defendant of the same date with those sued on, and excluded. This being all the testimony, the plaintiff asked the four instructions as set out in the opinion of the Chief Justice. They were granted by the court below; and after the verdict the defendant sued out this writ of error.
    
      A Burwett, for plaintiff in error, insisted,
    1. That the probated account of Briggs, Lacoste & Co. should have been admitted to the jury as legitimate evidence, from which they might fairly infer that on the first of January, 1839, they had no other claim against Henderson than what was embraced in that account.
    2. That it was admissible as a link in the chain of testimony, by which Henderson might, in connection with other proof, strengthen the presumption of payment growing out of the great lapse of time before institution of suit.
    3. That the reference to the letter to Buckner by Lacoste, and" the quotation from it were illegal, and rendered his answer incompetent evidence.
    4. That the deposition of Lacoste was too vague and uncertain to constitute notice of the nature and amount of the claim held by Briggs, Lacoste & Co., and alleged to be due Buckner ; and that Buckner’s testimony did not establish presentation of a claim due Briggs, Lacoste & Co., by whom it was held when Buckner had his conversations with Henderson.
    5. The receipt for $1000 was clearly admissible; it was directly between the parties, and touching the subject-matter; its rejection was manifest error.
    6. The note offered by the executor was clearly competent. It was between the same parties, and in relation to the same purchase; and, if allowed to go before the jury, would have shown that there was some error as to the aggregate amount of the notes, and would have required explanation at the plaintiff’s hands, before he could have recovered. It would have demonstrated a mistake as to the supposed balance due by the executor.
    7. The agreement of Hughes should have been admitted, to show that Hughes had paid the $5000, which, with the $6000 paid, would complete the $11,000 to be paid. It was competent to show first the agreement to pay, as the foundation for the subsequent payment.
    8. A sufficient degree of suspicion is thrown around this very stale demand to exact the most rigid proof of a promise to pay, by the executor, the very identical claim sued on, in order to take it out of the statute. Without such proof the bar must prevail. I think no such proof exists, or is made to appear. Mr. Burwell reviewed the testimony at great length on this point.
    9. The instructions asked and given were mere abstract propositions of law, not warranted by, or based on, the evidence.
    
      John M. Chilton, for defendant in error, in reply, contended,
    1. That the reference by Lacoste to the letter to Buckner was merely to fix the time and refresh his memory as to that. His testimony as to the fact of the promise was positive, and independent of the letter.
    2. The deposition of Lacoste, so far from being vague, is definite and to the point, and clearly establishes the promise to pay, and the admission of, the debt.
    3. The presentation need not be formal; any thing which amounts to notice of the claim is sufficient. 2 S. & M. 424.
    
      4. The only question really involved is, does a promise by an executor take the case out of the general statute of limitations ? Mr. Chilton argued at length that it did, and cited 2 Lomax, Ex.-, citing 1 Hen. & Munf. 563; 1 Harrington, 129, 130; 13 Mass. 164; 4 Cow. 493; Ballantine on Lim. 188; 15 John, Rep. ; 1 Halstead, 403 ; 4 lb. 247; Alab. Rep. 353; Com. on Con. 83; 8 Mass. 134; 16 lb. 429 ; 13 lb. 164; 11 Wheat. 310; 8 Cranch, 72; 4 Johns. 469; 11 Wheat. 314; 14 Wend. 90.
    5. The agreement of Hughes with Ray was wholly irrelevant. The account and receipt of Briggs, Lacoste & Co., as proved, referred to a different claim, and were inadmissible; the note •for upwards of $>7000, excluded, was of the same date with those sued on, and could not therefore be in payment of them. Buckner says the three notes for $J11,000 were in part payment for the land and slaves; this large note may have been for the residue; at all events, it was not relevant to the issue, and was properly excluded.
    6. The other instructions are sustained by repeated decisions of this court. 2 S. & M. 452; lb. 424; How. & Hutch. 410.
    
      Smedes and Marshall, on same side,
    To show that an admission of the correctness of a debt, and a promise to pay it by an executor or administrator, will 'take the case out of the statute of limitations, referred to the following authorities. Emerson v. Thompson, 16 Mass. R. 431; Forsyth v. Ganson, 5 Wend. 561; James v. Hackley, 16 John. R. 277; Cobb v. Lunt, 4 Greenl. R. 507 ; 2 Greenl. on Evid. § 352 ; Forbes v. Perrie, 1 Har. & John. 109 ; Chapman v. Dixon, 4 lb. 527; Head v. Manning, 5 J. J. Marsh. 255.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

This action was brought by defendant in error to recover a balance alleged to be due on two promissory notes which had been given by Ray, the plaintiff’s testator, to R. H. Buckner. The executor pleaded the limitations of six years; and also that the claim was barred because it had not been presented within eighteen months after publication of notice by the executor. From the date of the notes it was evident the statute had created a bar; but the plaintiff sought to avoid it by relying on the promises of payment made by the executor within six years next before the commencement of the action; and the effect of such a promise by an executor constitutes the main question in the case.

There were other questions raised during the progress of the trial, which may be passed with but a few remarks. The answers of the witness Lacoste, which were objected to, seem to be entirely free from just cause of exception. They fall within the rule that a written memorandum may be resorted to for the purpose of refreshing the memory. The witness spoke of the fact as a matter within his recollection. The letter-book was resorted to for the purpose of enabling him to fix the time of Henderson’s promise. The matters of evidence offered by defendant and rejected, were properly rejected.

As a promise to pay had been made by Henderson, and was fully established by the proof, the plaintiff’s counsel requested the court to charge the jury,

1st. That if, after Ray’s death, the executor acknowledged the debt claimed in the declaration, and promised to pay the same, such promise was sufficient to take the case out of the statute of limitations (six years), so as to entitle the plaintiff to recover in this action.

2d. That out of the time necessary to constitute the bar prescribed by the general statute of limitations must be deducted the time within which the statute forbids suits against executors, (nine months.)

3d. That if the claim was presented to the executor within eighteen months after publication of notice, from which must be deducted the sixty days required by law for continuing such publication, it was sufficient to take the case out of the special statute of limitations, (eighteen months.)

4th. That such presentation need not be in any particular form, but only sufficient to give such notice to the executor of the existence of the claim, its character and amount, as would enable him, with reasonable certainty, to provide for its payment or security.

The foregoing charges were given, and present the questions of law to be considered.

The point raised is, does the promise of payment made by an executor, take the case out of the operation of the statute of limitations? Courts of high respectability seem to have held different opinions on this question. We must, therefore, compare their respective claims to merit as authority. Expressions of opinion in the affirmative of the question have been thrown out in cases where the point was not presented, and consequently where no expression of opinion was called for. In other cases it seems to have been taken for granted, that a promise by an executor or administrator was the same in effect as a promise by the original debtor, without any examination of the question. ; The cases in Massachusetts are referred to with great confidence!, as decisive of the question. In Emerson v. Thompson, 16 Mass. R. 429, the court said, “ we consider it well settled that such a promise by an executor or administrator, avoids this bar.' He may even omit or refuse to plead this statute, when there, has not been a new promise, if the debt is justly due.” It was on the authority of Baxter v. Penniman, 8 Mass. R. 133, that the question was regarded as being so well settled. But in truth no such question was raised in Baxter v. Penniman. The'action was assumpsit by an administrator against the original debtor, who pleaded the statute of limitations. To avoid the plea, the plaintiff introduced proof of a new promise by the debtor. The question, therefore, was, whether a promise to an executor or administrator was sufficient, and not whether a promise by an executor or administrator would have that effect. The distinction is very apparent, but it was not noticed by the court in Emerson v. Thompson, or in Baxter v. Penniman, in which the court said, “ When the parties are living, an admission of a promise or contract, as undischarged within six years before action brought, takes it out of the statute of limitations. For' the same reason, such an admission made by or to an executor or administrator after the six years, ought to be considered as having the same effect” The effect of an admission by an executor or administrator was not the question before the court; its remark was, therefore, but an obiter dictum,. Still this remark was afterwards considered as having settled the question.

In Johnson v. Beardslee’s heirs and devisees, 15 Johns. 3, the effect of a promise by an executor or administrator was not considered. The defendants were sued as heirs and devisees. Two of them, it is true, were also executors; but it was as joint debtors that the effect of their promise was considered.

In Hammon v. Huntley’s exec., 4 Cow. 493, the question was not as to the effect of a promise by an executor in avoiding the statute of limitations; the statute was not pleaded, nor was such a question raised. The question is, (said the court,) whether an admission by one of the executors, that a certain sum was due from the testator to the plaintiff, is sufficient evidence to authorize a verdict against all the executors. It would undoubtedly be sufficient to take the case out of the statute of limitations.” By the statement of the question, the court showed conclusively that this broad declaration was an obiter dictum, and it is quite as evident that it was thrown out without consideration. It would have been quite enough if the court had said what the effect of the promise was in the case before it, without giving an opinion on its effect in a case not before it. This is therefore not a decision on the point.

The case of Mooers v. White, 6 John. Ch. R. 360, is very far from establishing the position for which it has been cited. On the contrary, it goes far to prove the reverse. It holds that the promise of an executor will not avoid the statute as against the real estate in the hands of the heir; and yet if an executor or administrator dan revive a barred debt, he thereby binds both personal and real estate, for both are liable for the satisfaction of judgments against the estate. Chancellor Kent .only considered the effect of such a promise, in its application to the case before him; but his reasoning will hold as well in regard to personalty as realty. Creditors and heirs are entitled to both; and both are reached through the executor or administrator.

No case, then, has been cited, which is entitled to be considered a decision on the point, in which a promise by an executor or administrator has been held sufficient to avoid the statute of limitations. Let us see whether the question has not been decided the other way.

The case of Thompson v. Peter & Johns, adm’rs., 12 Wheat. 565, was an action on an account barred by the statute in the lifetime of the intestate. To avoid the plea of the statute, the promises of the administrators were relied on. The promise was not sufficiently established. But we infer that it would have been unavailing, if it had been proved. “ But (said Chief Justice Marshall) this is not a suit against the original debtor. It is brought against his representative, who may have no personal knowledge of the transaction. Declarations against him have never been held to take the promise of a testator or intestate out of the act. Indeed the contrary has been held.”

The precise point arose in the case of Peck v. Botsford, 7 Conn. Rep. vol. 2, 2d series, p. 172, in which it was elaborately discussed and considered by the court, and the authorities, both English and American, were reviewed. After a just course of reasoning, the conclusion was, that the statute of limitations is not avoided by the subsequent promise of the executor or administrator.

The same question came before the Supreme Court of Pennsylvania, in a late case (Fritz v. Thomas, 1 Whart. Rep. 66,) in which the former cases on the subject, in that state, were overruled, and, after a very full investigation, it was determined that the subsequent promise of an administrator does not preclude him from interposing the statute of limitations.

The same principle is recognized in Ciples v. Alexander, 2 Constit Rep., 768, where it was held that an administrator cannot bind the estate by acknowledging the justice of the debt.

These cases seem to accord with principle, and are deemed conclusive. An executor or administrator can only discharge existing legal obligations against the estate. He is the trustee or agent appointed by law, for the benefit and protection of creditors and distributees, who stand upon their strict legal rights, which cannot be prejudiced by the voluntary and unauthorized acts of the administrator. His duty is prescribed by law, and that is the limit of his power. The law determines the extent of the estate’s liability, and he cannot enlarge it. He can make no contract, except such as may be necessary in the course of his administration. If he can make no new contract, how is he to make an admission which shall operate to revive an obligation which is extinct? To admit that he has such power would be to place the estate entirely at his arbitrary discretion. Old debts might be revived without limit, and the whole estate swept away in their liquidation. It is no answer to say that the deceased might have done this. The law makes the administrator the agent to do what the deceased was bound to do in reference to his debts; but it does not clothe him with the discretion which the deceased had a right to exercise. In some of the cases it is said the executor or administrator may or may not plead the statute of limitations. This doctrine seems to militate against the view we have taken. When such a question arises, it may be found worthy of a reconsideration, and we only glance at it to leave it open.

In regard to claims’barred at the time of the death of the original debtor, we can have no hesitancy in holding, both on reason and authority, that they are not revived by the subsequent promise of the executor or administrator, assuming that nothing more than ordinary powers are conferred by the will, in the case of an executor. Is the same rule to prevail where the bar was not complete, or where the statute had not commenced running at the death of the debtor 1 There may seem to be some reason for a distinction. It cannot be made, however, without putting a new clog on a statute, the utility of which has been greatly lessened, and litigation thereby increased, by engrafting on it, by construction, an exception which is at war with its letter as well as its spirit. The safest rule seems to be to hold, that no promise by an executor or administrator will take a case out of the statute. Whether an individual liability may or may not arise in certain cases, where promises have been made, is another question. The charge of the court, therefore, on the first point, was wrong.

As regards the other charges, they are sustained by previous decisions. 2 Smedes & Marsh. 452; 10 Ib. 100; 3 How. 216; 4 Ib. 242.

Judgment reversed, and cause remanded.  