
    Hiram Emerson versus William Thompson and Another.
    A new promise by an executor or administrator, within six years, takes the case out of the statute of limitations ; as well in an action against an administrator de bonis non, as against the original executor or administrator, who made the promise.
    An executor ur administrator, who has given notice of his appointment, pursuant to the statute of 1788, c. 66, cannot waive the bar thence arising; as he may the general statute of limitations.
    Entry sur Disseizin. The demandant counts on his own seisin within twenty years, and on a disseisin by the tenants ; who plead the general issue, which is joined.
    At the trial of this issue, before Putnam, J., at the sittings here after the last November term, the demandant claimed title in virtue of the extent of an execution upon the demanded premises on the 30th of March, 1818, as the estate whereof John Harris died seised. The judgment, upon which the said execution issued, was recovered by the demandant against Richard D. Harris and Thomas Harris, administrators of the goods and estate of the said John, not administered by Thomas and Jonathan Harris, both deceased, who were executors of the last will of the said John.
    
    The tenants claimed title in virtue of the levy of an execution against the said Jonathan Harris, in February, 1813, the premises having been attached in the same suit on the 11th of March, 1812.
    The said Thomas and Jonathan, executors as aforesaid, were also devisees of the residuum of the estate of their testator, and gave bond in the sum of 200,000 dollars, for the payment of his debts and legacies. The said testator died on the 17th, and his will was proved on the 25th of October, 1804. On the 2d of October, 1805, the said residuary devisees divided the real estate of 
      their testator, and the demanded premises were conveyed by Thomas to Jonathan Harris._
    [ * 430 ] * The demandant was required by the tenants to prove the consideration of his judgment against the administrators de bonis non, upon which his execution issued. The demandant objected; but the judge ruled that he was bound to prove it. It consisted of two promissory notes signed by John Harris, and of labor performed. Judgment was rendered in this Court, in the year 1817. The administrators, defendants in that suit, pleaded, 1st, That the testator never promised. 2dly, That he never promised within six years. 3dly, That the executors of John Harris gave due notice of their appointment within three months from the time it was made, and that the plaintiff did not present his claim within four years. Issue was joined on all the pleas
    The demandant proved, at the trial of the present action, that the testator made the promises; and that the executors acknowledged the debt, and promised to pay the same, within six years next before the suit was brought against the administrators de bonis non; which was in February, 1816.
    The tenants objected that the acknowledgment of the executors did not revive the promise of the testator, or take the case out of the statute of limitations. But the judge was of a different opinion, and so instructed the jury.
    The third issue was found for the demandant, viz. That the executors did not give notice of their appointment, &c. These issues were found in the same way, on the trial between the demandant and the administrators de bonis non.
    
    The tenants also contended that the demandant ought not to prevail, by reason of the delay in commencing his suit against the administrators, which was for several years after the said Thomas and Jonathan were appointed executors, and after the tenants had taken the land, as the estate of Jonathan, in execution. But the judge was of a different opinion, and so instructed the jury. A verdict being returned for the demandant, the tenants moved [*431 ] for a *new trial, on account of the opinions and instructions of the judge, expressed as aforesaid.
    The cause was argued at this term by Ward and Parker, for the demandant, and by Stearns, for the tenants; and at the following March term at Concord,
    
   Jackson, J.,

delivered the opinion of the Court. The land in dispute was part of the estate of John Harris, at the time of his decease, and of course charged with all the deb is that he then owed. His devise of it could not divest it of this charge or lien. The present demandant was one of his creditors, and has since recovered judgment for the debt, against his administrators de bonis non, and has levied his execution upon this land. The tenants claim under the devisee of the same John Harris. On this statement of the case, the demandant would be entitled to recover; and we have only to consider, whether any of the objections suggested by the other party are sufficient to bar him.

The first objection is, that the demandant’s cause of action against the administrators of John Harris was barred by the statute of limitations. His action was brought against the administrators, more than six years after it accrued ; and they pleaded the statute in bar. He replied in the usual form, and on the trial proved a new promise by one of the executors within six years, and had a verdict on that issue. The form of the present action did not require, nor permit the tenants to make such a plea; but they made the same objection to his right to recover that debt against the administrators; and he again proved, at the trial of the present action, the new promise by the executors within six years.

We consider it well established, 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 . We are also satisfied, that such a promise by the former * executor is as effectual for [*432 ] this purpose, as a promise by the administrator de bonis non .

The other objection, that the statute of 1788, c. 66, limiting such actions to four years, after accepting the trust and giving bond as executor, was answered by showing that the executors did not give notice of their appointment, in the manner provided by the same statute. The bar arising from this statute could not have been waived by the executor or administrator ; because it is provided not for his benefit alone, but for that of heirs and devisees also ; in order to discharge their estates, within a reasonable time, from the lien for the debts of the deceased. But although the executors could not waive this bar, after it had accrued, or destroy its effect to the prejudice of heirs or devisees, yet they might, by their negligence, prevent its ever accruing; and in such a case, if either of the other parties suffers a loss, it must be the heir or devisee, and not the creditor. It is contrary to the plain words of the statute, to bar the creditors, unless the notice is given, as there prescribed. Whether the heirs or devisees, in such a case, would have any legal remedy, against the executor or administrator, for the consequence of this negligence, we are not now called upon to consider.

The case of Thomson vs. Brown & Al. , which arose out of this same transaction, and which was cited in the argument, differed materially from the present. It was there stated as a fact, that the executors had given notice of their appointment, in the manner prescribed by the statute; and although it was said that the mistake in this particular was discovered before judgment, yet it does not appear to have been rectified, nor was it admitted by the parties in that suit to have been a mistake, as appears by the papers on file in the action.

In that case, Brown & Al. claimed under a sale and conveyance by the administrators, pursuant to an order of the Court of Common Pleas; in the present case, Emerson, the demandant, [ * 438 ] claims under an execution. The Court * might, in some cases, justly refuse to give such an order or license, on the petition of the executor or administrator, and for his accommodation and benefit, although they could not prevent the creditor from taking the land in execution, according to the right secured to him by the statute.

When executors give bond to pay all debts and legacies, and omit to return an inventory, as they may, and as they did in the case at bar, they cannot obtain from the judge of probate the certificate which is a prerequisite to the order or license for sale. That certificate ought to contain, among other things, a statement Of the value of the personal estate of the deceased, to enable the other courts to determine whether any, and how much, of the real estate ought to be sold. But if no inventory is returned, the judge of probate has no means to ascertain, regularly and judicially, the value of the personal estate.

We are, therefore, satisfied with the judgment in the case oi Thompson vs. Brown Al.; and without meaning to disturb that decision, we are of opinion that, in the present case, the demandant is entitled to recover.

Judgment according to the verdict. 
      
       8 Mass. Rep. 133. —Finch Prec, in Chane. 385
     
      
      
         1 Atkyns, 526.
     
      
       15 Mass. Rep. 374. -7 D. & E. 182.
     
      
       [There is nothing in the act or in the justice or equity of" the case, which require such a construction of it. The preamble of the act shows it was made for the benefit of administrators and executors only. The heirs and devisees have, and ought to have, no rights until the creditors have been paid. It is difficult to account for the favoi which the Court on several occasions have shown to heirs and legatees.—En.]
     
      
       Ante 172
     