
    JOHN H. CRINER ET AL. v. F. M. CHERRY, ADM’R. ROBT. LONG ET AL.
    Jackson,
    September Term, 1875.
    1. STATUTES OF LIMITATIONS. Suspension on account of war applied to decedents as well as the living'.
    Wherever the courts were closed during the war between the states, the operation of the statutes, of limitations was suspended. Before the courts were reopened, and the statutes of limitations again begun to operate against the claim, the statutes and the constitution suspended the operation of the statutes of limitations from, the sixth day of May, 1861, to the first day of January, 1867. This suspension operated against estates of decedents as well as against the living. [See Code, secs. 4454.]
    Cited with approval.: Yancy v. Yancy, 5 Heis., 364; Harrison v. Henderson, 7 Ileis., 315.
    Cited and construed: Acts 1865, ch. 10.
    2. SAME. Same'. Case in judgment.
    A claim is not barred by the statutes of limitations under, the facts as follows: Claim due Aug. 26, 1856; debtor’s death Sept., 1866; administration granted Nov., 1866;. insolvency suggested March, 1867; claim filed October, 1867; bill filed by creditors Jan. 24, 1872, to. sell land to pay decedents’ debts.
    3. SAME. Suspended by sugg-estion of insolvency and filing ' claims, when.
    After the suggestion of the insolvency of an estate, the filing of claims not then barred by the statutes of limitations, in the county court, preserves them from the bar until the filing of a bill to sell land to. pay decedent’s debts five years after his death. [Such claims would be barred if bill not filed to sell land within seven years after filed in county court and allowed. See Code, sec. 4014, and not© 15, and other notes.]
    4. SAME. CHANCERY PLEADINGS AND' PRACTICE. Suspension of statute of limitations shown without direct issue as to suspension.
    Where a creditor files a bill in chancery court to. sell land to pay a decedent’s debts, charging the existence of his debt against the estate, which the answer denies and relies upon the statute of limitations, either party may show by evidence any fact or law which would tend to support his claim, and though the years of the statute had passed, complainant might' show his claim not barred, by showing the suspension of the operation of the statute: (1) by the closing of the courts during- the war; (2) by statute; (3) by suggestion of insolvency of decedent’s estate; (4) by filing claim; or (5) bring' suit thereon.
    5. ADMINISTRATION. Proof of suggestion of insolvency.
    The suggestion of insolvency ■ of a decedent’s estate may be proven without record evidence by depositions where there are no exceptions.
    
      6. CHANCERY PLEADING AND PRACTICE. Same. Same. Allegations of bill proven though no- issue by denial of answer.
    Where the creditor’s bill filed in chancery court to sell decedent’s lands to pay debts, alleges that the insolvency of tire estate had been suggested by the administrator, and the answer is silent as to this allegation, the same ma.y be proven, as it was not necessary that an issue should have been made by the answer as to this question. [See note 4 under see. 6125 of the Code.]
   Deaderick, J.,

delivered the opinion of the court:

The bill in this case was filed on the 24th of January,. 1872, by creditors of Robert Long, deceased, against his administrator, his heirs at law, and distributees, in the chancery court of McNairy county.

Robert Long died in September, 1866, and administration was granted upon bis estate by the county court of McNairy county, to A. M. Burton, at the following November term, and in 1871 said Burton resigned, and det-fendant Cherry was appointed administrator in his stead.

The hill alleged that the said Burton, at the March term, 1867, of the said county court, suggested the insolvency of the estate, and that the personal estate had been, exhausted in the payment of debts, and intestate owned at his death a tract of land described in the bill, which complainants pray may he subjected to the payment of their debts.

The answer contests the claims of the complainants chiefly upon the ground that they are barred by the statute of limitations of 2 1-2 and 6 years, and, as to part of them, that they are unjust and not proved. The answer is silent as to the allegation of the hill that Burton, the first administrator, had suggested the insolvency of the estate, but admits that some part of the land would have to he sold for payment of the debts.

Without detailing the specific facts proved in the record going t'o show that such suggestion was in fact made, we are of opinion that it does sufficiently and incidentally appear to have been made, and is treated in the progress of the canse as a conceded and uncontested fact. While the fact of the appointment of each of the said administrators is distinctly admitted in the pleadings, the parties have taken the trouble to prove such appointments by the introduction of the records thereof, but have wholly omitted to .furnish any record evidence of the suggestion of insolvency, or steps thereafter taken upon such suggestion. As before stated, however, from the deposition of the clerk of the county court and others, to which no' exception was taken, we conclude that that suggestion was made, and claims filed for payment in said court from time to time, and that no active steps were taken to provide a fund for the payment of these debts until after the resignation of the first adminstrator, in 1871, and the appointment of the defendant, Cherry, as administrator de bonis non, and the filing of the bill in this case in January, 1872, for the sale of land.

The chancellor directed an account and report to be taken and made by the master as to the amount of indebtedness of the estate, the assets in the hands of the administrator, and the necessity of a sale of the land, etc.

The master reported some sixteen claims as valid and subsisting against the estate, but on exception taken, his report was recommitted, and the administrator excepted again to each claim allowed, separately, upon grounds stated in the several exceptions.

The first claim allowed and excepted to is an accepted order of 26th of August, 1856, for $650. The objection taken to this claim is that it is barred by the statute of limitations of 2 1-2 and 6 years, and was not properly filed and authenticated.

The evidence shows that the circuit court was closed after July, 1861, and chancery court after February, 1861, and reopened, respectively, in September, 1865, -and in 1866; that in March, 186T, the insolvency of-the estate of Long was suggested, and the claim in question; with others "belonging to the same creditor, was filed with the clerk of the county court, 31st of October, 1867.

It has been several times held by this court, in substance, that the closing of the courts during the late war suspended the operation of the statute of limitations [Yancy v. Yancy], 5 Heis., 364; [Harrison v. Henderson], 7 Heis., 315.

Tbe courts closed in MbHairy, say July, 1861, less than five years after the acceptance, of the order, and, in 1865, the act [acts 1865, ch. 10] was passed, still further suspending their operation until January, 1867, and in October, 1867, the claim was filed, and demand of payment made, being less than sis years from the time the cause of action arose, excluding the time during which the statute of limitations did not operate, and less than one year after the grant of admins tration of Burton. The time was shorter as to each of the other two claims of the same creditor, Oriner, but Ho: 3, for $1,360, for other-reasons, was properly rejected as a debt due from the estate. The other claims excepted to were filed in due time, and established by sufficient evidence and exceptions thereto^ except Ho. 3, for $1,360, and Ho. 6, for $125.37, were overruled by the chancellor.

The decree of the chancellor in overruling the exceptions to the master’s report (except, the exception to Ho. 3, as above stated, and Ho. 6, amounting to $125.37, which were allowed), is affirmed, and the cause will be remanded to the chancery court that the chancellor’s decree may be carried out by such further orders and decrees as may be necessary for that purpose. .

The costs of this court will be paid by Cherry, the administrator, out of the assets of the estate.

Opinion on petition to rehear.

This is an application for a rehearing. If the facts are assumed to be as stated by the defendant’s counsel, he is unquestionably right in his conclusions.

But we interpreted them differently upon the question of the statute of limitations upon the evidence in the record. We cited former adjudications of this court, holding that the statute of limitations ceased to* operate upon the closing of the courts.

We referred to the evidence showing the time at which the circuit and chancery courts of the county in which the parties to this cause lived, were in fact closed, and upon the facts thus ascertained, we held that the statute ceased to run at a given time, and that before it agaiu began to run it was further suspended until the 1st of January, 1867, by the act of Í865.

Then we held that the suggestion of the insolvency of the estate, in March, 1867, further suspended its operation, and that the filing of the claims in the county court, before two years from the death of intestate preserved them from its bar until the filing of the bill in this case.

It was not necessary to this result that the bill and answer should have made a distinct issue as to' the facts of such suggestion. It was so alleged, and was uneontro-verted, and as a fact, as we concluded, established by proof. The saving the bar of the statutes might have been established by any evidence sufficient for the purpose, whether denied cr not by the answer.

The bill charges the .existing indebtedness; the answer denies it, and relies upon the statute of limitations. The years of the statute had passed, but defendants: or complainants might show by evidence any fact or law .which would tend to support his claim. And complainant may show his claim not barred, whether it be that the statute was suspended by the closing of the courts, or by having filed his claim in court, or suit brought thereon in due time.

We are of opinion that the conclusions in the case heretofore announced are correct, and dismiss the petition for rehearing.  