
    George G. Herd, Administrator of Josiah T. Delp, v. Eli R. Delp et als.
    
    1. ADMINISTRATION. Year’s support. Partnership. On a bill filed by tbe administrator of a deceased partner to set aside a sale of property claimed by the administrator as the individual property of the intestate, the property was held to belong to the firm, and the sale to be valid, but an account was ordered to ascertain what purchase money was due. The property was attached under the bill, and before replevy a portion of it was set apart for the year’s support of the widow of deceased. Held, that the amount taken for year’s support was a proper ■ credit to the purcraser, as against the administrator.
    2. Same. Limitation. Payment. The purchaser as part of the price, paid a judgment against the deceased partner. Held not to be affected by the statute of limitations, Code, 2874, as to administrators. It was a ' ' payment, not a mere debt acquired by the purchaser.
    
      3. Same. Same. Note. A note held by the purchaser on the deceased,- accepted by the surródng partner as part of the price, stands on the same footing.
    PROM HAWKINS.
    In the Chancery Court, at Rogersville, S. J. W. Lucky, Ch., presiding.
    This was a bill filed in the Chancery Court at Rogers-ville, 16th November, 1858, to attach 129 hogs, claimed by the complainant, administrator of J. T. Delp, as having belonged to his intestate, who died July, 1858, in his individuál right, alleging that they were in -the hands of the defendant, E. R. Delp, under color of a purchase from ¥m. Delp, who falsely claimed to be a partner of the .deceased. The property was attached, and while out of the possession of E. R. Delp, thirteen of the hogs were applied to the year’s support of the widow. It appeared in proof that Wm. Delp was a partner, and the sale was held good, but an account was ordered, to ascertain whether E. R. Delp had paid for the hogs, which was taken February 12, 1868. The Clerk and Master allowed a credit for the hogs applied to the year’s support. It was shown that Eli R. Delp had paid a judgment against the deceased to one Gillen waters, for $81.30, and this was allowed by the Clerk as a credit, it being shown that the payment of the judgment had been accepted by the surviving partner as a part payment on the purchase. E. R. Delp also held a note on the deceased for a balance,. which was taken by the surviving partner in' part payment of the price, of which note the Clerk and ■ Master allowed as credit $628.56. To these items exception was taken by complainant, that they were barred as claims against the estate of the deceased, being allowed some ten years after the intestate’s death, and the qualification of the administrator, in 1858. The Court below, sustained the exception, and the defendant, E. R. Delp, brought the cause to this Court by writ of error.
    F. M. Fulkebson, filed a brief for complainant.
    Jas. T. Shields, for defendant,
    E. R. Delp, insisted that there was a total misapplication of tbe statute of limitation. That these credits were allowed because the first was so much of the property purchased, which had been appropriated by the administrator to the use of the widow, while under his control, during the time the property was under attachment, which had not been returned, and so it was a payment as to them.,
    The others were payments accepted by the surviving partner, and not debts held by the purchaser against the estate.
   Deadebick, J.,

delivered the opinion of the Court.

The questions for determination in this case, arise upon exceptions to the Master’s report.

A partnership existed between the intestate and his father, ¥m. Delp. After the death of the intestate, Win. Delp, as surviving partner, sold 129 head of hogs belonging to the partnership, to respondent, Eli R. Delp.

This he had a right to do, and the respondent, Eli, acquired a good title to the hogs by virtue of the purchase. There is no proof that the price was inadequate or that there was fraud or unfairness in the transaction.

Nevertheless, the complainant attached the hogs, alleging in the bill that they belonged to his intestate, and they were replevied by defendant, Eli. A reference to the Master was ordered, to ascertain the state of accounts between the parties. And the Master’s report, dated February 12, 1868, shows that the said Eli had paid the price agreed to be given for the hogs, except the sum of $48, which, with interest thereon to the 1st of March, 1868, showed a balance due complainant of $75.89 at that date.

The complainant excepted to the three several credits allowed respondent, Eli.

1st. 1,384 pounds pork, at $6 per hundred, amounting to $83.04, paid to administrator, and set apart to intestate’s widow as part of her year’s support. ,

This exception was sustained by the Court. In this the Chancellor erred. The exception should have been disallowed.

2. Respondent, Eli, paid for intestate a judgment of $61.30, and also paid to 'Win. Delp, the surviving partner at the time of the purchase, $628.50, in a note, .or balance of a note, he, Eli, held on intestate.

These two credits last named, were allowed by the Master, and upon exception taken by complainant, were disallowed. We think they were proper credits to respondent, Eli, and the exceptions to the report were improperly allowed by the Chancellor. This was upon the erroneous supposition of the Chancellor that these several payments, as we regard them, towards the price of the hogs, were outstanding debts against the estate, and were barred by the statute of limitations of two years and six months, in favor of the administrators.

The decree of the Chancellor will be reversed, and a decree entered in conformity with this opinion; and the costs will be paid by the complainant in this court and in the Chancery Court.  