
    Israel Richmond, Administrator, Petitioner, &c.
    An administrator cannot revive a debt due to himself from the intestate, which at the time of the intestate's decease was barred by the statute of limitations.
    An administrator who had made advances to the intestate in his lifetime, and since his decease had paid debts out of his own funds, and had rendered no account until after four years from the time of his taking out letters of administration, the delay having been occasioned in part by an attempt to collect a debt in South Carolina, had leave to sell real estate to reimburse himself, the application for license to sell having been made not long after the expiration of the four years, and the real estate having remained as it was at the decease of the intestate, without any partition among heirs or any conveyance.
    Interest for eighteen months was allowed on such administrator's private account, it being considered that the estate might reasonably have been settled within that period.
    The petitioner was appointed on the 6th of October, 1817, administrator of the estate of Elias Richmond deceased intestate ; and on the 19th of December following he returned an inventory. By an account settled in the probate office on the 3d of December, 1822, a large balance remained due to the administrator, after deducting the amount of the inventory of personal estate, the rents and profits of real estate, and moneys collected, from the amount of debts paid, disbursements, and expenses of administration.
    At the time of the intestate’s death, which was in June 1817, some items of the administrator’s private account against the estate, namely, one note for 400 dollars, and the sum of 164 dollars, 98 cents, for services and advances at Charleston, South Carolina, were barred by the general statute of limitations; and the guardian of the intestate’s heir contended before the judge of probate, that these charges should be struck out of the account. He contended also, that more than five years having elapsed after the administrator had taken upon himself the trust, before he settled any account in the probate office, the whole of his private account was barred by St. 1791, c. 28, requiring suits against an administrator to be commenced within four years from the time of his accepting that trust. Both of these items were included in the balance in favor of the administrator.
    The administrator claimed interest on his private account up to the time of settling his administration account; to which the guardian objected. The judge of probate thought it reasonable that he should be allowed interest until a proper time for settling the estate had elapsed, and therefore interest upon the note and upon the money advanced in the lifetime of the intestate was calculated to March 1819, allowing eighteen months in which the claims might have been adjusted and real estate sold, if necessary, for the payment of debts.
    At May term 1823, of this Court, the administrator presented this petition, praying leave to sell real estate of the intestate, to the amount of the balance mentioned and the expenses of sale, alleging that the personal estate was insufficient to pay the just debts of the deceased and incidental charges.
    And now W. Baylies contended, that the petition ought not to be granted. It was no part of the administrator’s duty to advance his own money for the benefit of the intestate’s estate. Storer v. Storer, 9 Mass. R. 37. Though it is competent for an administrator, by a new promise, to revive a debt barred by the general statute of limitations (of 1786, c. 52), he cannot make a promise to himself to take his own debt out of the operation of the statute. The whole of the administrator’s private account is barred by St. 1791, c. 28, the effect of which statute cannot be avoided by any new promise ; and he has been guilty of so gross negligence that he is not entitled to indulgence. Dawes v. Shed, 15 Mass. R. 6 ; Brown v. Anderson, 13 Mass. R. 201 ; Scott v. Hancock, ibid. 162 ; Ex parte Allen, 15 Mass. R. 58.
    
      M. Morton for the petitioner.
    This case differs widely from Scott v. Hancock and Ex parte Allen, as also from 
      Thompson v. Brown, 16 Mass. R. 172. Here a much shorter time has elapsed since the petitioner took out letters of administration, and the real estate remains in the situation in which it stood before the four years had expired, it being still in the hands of the heir. The administrator is bound to pay the honest debts of the intestate, although barred by the general statute of limitations, and the circumstance of a creditor’s being the administrator should not prevent him from doing justice to himself. Baxter v. Penniman, 8 Mass R. 133; Emerson v. Thompson, 16 Mass. R. 429. Cases might happen, in which, if the administrator omitted to plead the St. 1791, c. 28, the Court would nevertheless, in the exercise of its discretion, grant him leave to sell real estate ; as if the creditor should, from regard to the heirs, permit his debt to remain unpaid for five or six years without interest. In some instances, more than four years are required before the settling of an estate can be brought to a close. And the delay in the case before the Court was occasioned, in part, by the prosecution of a claim against a debtor in Charleston.
   Parker C. J.

said, in substance, that the Court were satisfied, that for so much of the balance due to the petitioner as was barred by the statute of limitations, at the death of the intestate, there should not be license to sell.* The petitioner could not avoid the presumption of payment, except by showing a renewal of the promise, and he cannot show that, being himself the administrator. If he were allowed to do so, it would be putting it in the power of any creditor to renew a promise by becoming administrator, and thus he would get an advantage over other creditors.

It is contended that the rest of the claim is barred by St. 1791, c. 28, and Scott v. Hancock and Ex parte Allen are cited in support of the position. In the first case the Court thought the administratrix ought not to be allowed to disturb titles acquired under the presumption that the debts due from the intestate had been paid. In Ex parte Allen the petitioner himself had incumbered the real estate which he prayed leave to sell; and the case of Thompson v. Broion is much of the same nature. The Court have a discretionary power, and unless extraordinary circumstances render it proper, they will not grant a license after the four years have expired. This case however comes within the exception. When the petition was presented a long time had not elapsed after the expiration of the four years. It may be presumed that the delay was occasioned by the attempt to collect the debt in Charleston ; and the real estate remains in the same situation that it was in at the death of the intestate, there having been no division among heirs and no sale to any person. The Court therefore think the petitioner should have leave to sell so much of the real estate as will be sufficient to pay that part of his claim which is not barred by the general statute of limitations, with interest as allowed by the judge of probate. 
      
       An executor will not be charged with interest, where the settlement of a testator's estate has been delayed a long time without any negligence on his part, and where he has not used or made any profit of the funds in his hands Lamb v. Lamb, 11 Pick. 371.
     
      
      
        Nowell v. Nowell, 8 Greenl. 220.
     
      
       In Scott v. Hancock, 13 Masa. R. 164, it is said to be settled, that an administrator is not bound to plead the general statute of limitations in bar to an action on a debt of his intestate. See also Smith's Estate, 1 Ashmead, 352. But in M‘Cullock v. Dawes, 9 Dowl. & Ryl. 40, it is held by Bayley J., that executors are bound to resist a claim barred by the general statute of limitations. “They have,” he says, “no right to waive any legal defence, and if they did and were to pay a debt against the recovery of which there was a legal bar, they would render themselves liable over to those who were interested in the testator’s property.”
     