
    FULENWEIDER’S CASE. Joseph F. Johnston, Administrator, &c., v. The United States.
    
      On the Proofs.
    
    
      A mail conti'actor dies shortly before the rebellion. Some one, not shown, continues the service. A balance is struck, by the Treasury and appears'to be due. Ihe administrator brings suit more than eleven years after the service ivas performed. The defendants plead the statute of limitations. It appears that there was no administration till shortly before the suit was brought.
    
    The Statute of Limitations, (12 Stat. L., § 10, p. 765,) which provides that claims against the Government shall he forever harred unless suit he brought “within six years after the claim first accrues,” does not begin to run if there he no person in existence when the claim, accrues who is qualified™to sue upon it. Therefore, where the contractor dies before the claim accrues and administration does not take place until afterward, the statute will not begin to run till an administrator be appointed, and he may bring his action more than six years after the claim accrues, notwithstanding the provision that “no other disability than those enumerated shall prevent any claim from being barred.”
    
    
      The Beporters’ statement of the case :
    In this case the court found the facts to be as follows :
    I. The contract sued on was executed as alleged in the petition.
    II. Henry Fulenweider, the claimant’s intestate, performed the service stipulated for in said contract up to the time of his death, which occurred on the 25th of February, 1861.
    [II. On the 19th of December, 1870, letters of administration were granted by the probate court of Shelby County, Alabama, upon the estate of said Henry Fulenweider; and it does not appear that any previous administration on his estate was granted.
    IY. For the service under said contract up to March 31,1861, payment has been made by the Post-Office Department, and no claim therefor is involved in this suit.
    Y. On the 27th of May', 1861, the following order was issued by the Postmaster-General:
    
      “ POST-OEEICE DEPARTMENT,
    “ Washington, May 27,1861.
    “All postal service in the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas, and Texas, will be suspended from and after the 31st instant.
    “Letters for offices temporarily closed by this order will be forwarded to the dead-letter office, except those from West Virginia, which will be sent to Wheeling.
    [l. s.j “M. BLAIR,
    ‘ ‘ Postmaster- General.”
    VI. From the 1st of April to the 31st of May, 1861, the United States mail-service was performed on the route specified in said contract, but the testimony does not show by whom said service was performed,
    VII, The Auditor of the Treasury for the Post-Office Department audited and adjusted the account of claimant’s intestate for services under said contract, and stated the same on the books of his office, as follows:
    Route 7002 — Alabama!
    Dr. • Senry JPtdenweider, contractor, in account with U. S. Cr.
    To collection 1st qr. 1861. To warrant No. 6530, dated May 14, 1861, on New York. To draft No. 8371, May 14,1861, on P. M, Selma, Ala. §115 68 14,734 32 400 00 Py transportation from Jan. 1 to ‘March 31, 1861, at §65,000 per annum.. §16,250 00
    To draft No. 8372, May 14,1861, on P. M., SmnmerJield, Ala . To draft No. 8373, May 14,1861, on P. M., Tuscaloosa, Ala... 500 00 500 00
    16,250 00 By transportation from April 1 to May 31,1861, at $65,000 per annum.. 16,250 00 10,892 85
    
      Mr. T. J. I). Fuller for the claimant:
    Letters of administration on the estate of Henry Fulenweider were committed to plaintiff December 19, 1870.
    Application for payment of the amount due the plaintiff was then made to the Post-Office Departmen fc. The account was audited by the Sixth Auditor, and the sum of $10,892.85 found due the estate, and would have been paid but for the passage of tlie law of July 12,1870, covering into tbe Treasury all un-expended moneys of more than two years’ appropriation. The contract is the same as in the case of Éeeside, once before this court, and its decision reversed by the Supreme Court, (8 Wall., p. 38.) And upon the point of the one month’s extra pay being due, that case seems on all fours with the case at bar; the service being in one of the so-called Confederate States, the order and the contract and the time — the circumstances and all the facts the same, identically the same. The universal rule of law is, that heirs or next of kin cannot bring suit to' recover demands or debts due their ancestor or the possession, of personal property. The suit must be instituted in the name of the administrator, duly appointed and properly qualified. (13 Wend., p. 453; 4 Paige Oh., p. 47; 9 Ala., p. 908; 11 id., p. 609 ; 14 id., p. 76.) The statute of limitations never commences to run unless there is some one in existence capable of suing. (Murray v. Hast India Company, (5 Barn. & Adol., p. 204; 18 Ala., p. 831; 24 Ala., p. 184; 29 Ala., p. 510; Angelí on Lim., p. 55.)
    
      Murray v. East India Company was a case where the action was in the name of the administrator, upon a bill of exchange drawn in favor of the intestate before his death and accepted afterward, the death not being known to the acceptor. It was held the statute of limitations began to run from the time of granting letters, and not from the time the' bill became due. As no administrator was appointed until December 19,1870, the statute commenced to run from that date. The contract to perform the service being made by Fulenweider in his lifetime, and having been partly performed at his decease, the obligation still rested on the estate. The heirs caused it to be performed, to save the bondsmen primarily and the estate ultimately from liability. There was no assignment of the contract; there could be none without the assent of the defendants. No implied obligation could arise, outside of the contract, in favor of any person who may have performed the services as against the defendants. The testimony shows the service was regularly performed under the contract until it was suspended by the defendants.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants.
   Drake, Ch. J.,

delivered the opinion of the court:

The first question arising in this case is, whether the claim, was, when this suit was brought, barred by the tenth section of the Act March 3,1863, ( 12 Stat. L., p. 765,) which is as follows:

“Sec. 10. And he it further enacted, That every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement of the claim be filed in the court or transmitted to it under the provisions of this act within six years after the claim first accrues : Provided, That claims which have accrued six years before the passage of this act shall not be barred if the petition be filed in the court or transmitted as aforesaid within three years after the passage of this act: And provided further, That the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accruing during minority, and of idiots, lunatics, insane persons, and persons beyond seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court, or transmitted, as aforesaid, within three years after' the disability has ceased j but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively.”

As the services which constitute the foundation of this claim were rendered between April 1 and June 1,1861, and .the claimant’s petition was not filed until March 17,1873, the prima-facie conclusion would be that the claim was barred when the petition was filed. But the contractor, Henry Fulenweider', died before any of that service was rendered, and no administration on his estate was granted until December 19, 1870. This changes the aspect of the case. It is a well-settled rule, that if, when the right of action would otherwise accrue and the statute begin to run, there is no person in existence who is qualified to sue upon that right, the statute does not begin to run till there is such a person. (Angelí on Lim., §§ 54-63.) For this claim none but a personal representative of Fulenwei-der could sue; and there was no personal representative until December 19,1870, when the statute began to run, less than three years before this suit was brought.

It was suggested that the words of the second proviso, declaring that “no other disability than those enumerated shall prevent any claim from being barred,” would prevent the operation of the rule of law; but this does not seem to be a proper view of the matter. The disabilities specified in the proviso are personal, and of course imply the existence of a person subject to them; while in this case there was, until administration granted, no person qualified to institute a suit. The delay in suing was not, therefore, from the existence of a disability of a party, but from the want of a party capable of asserting the claim. Hence those words of the proviso are no barrier to the claimant’s recovery.

Such being the case, there remains no question of law to be discussed. The estate of Fulenweider is entitled to receive the stipulated compensation, at the rate of $65,000 per annum, for the months of April and May, 1861, as ascertained by the Auditor, amounting to $10,892.85; and under the decision of the Supreme Court in Reeside’s Case, (8 Wall., 38,) which is the counterpart of this, we can do no less than allow the one month’s additional pay, which the contract stipulates should be paid if the Postmaster-General discontinued the service before the end of the contract.

Judgment will be rendered in favor of the claimant for $16,309.51.  