
    Pease against Phelps, administrator de bonis non of the estate of Samuel Stebbins, deceased.
    
      Hartford,
    
    June, 1834.
    
      A having taken B into his family, gave his promissory note to B for 1000 dollars, dated January 7th, 1818, payable when B should arrive at the age of twenty-one years ; to which note was annexed a condition, that B should continue with A until he (B) should arrive atthe age of twenty-one years, and should not leave him (^1) or his wife C, without their consent. A died in January, 1821, having appointed C his executrix. The court of probate limited six months from the 6th of February, 1821, for the exhibition of claims against the estate of A. B continued with A until his death, and afterwards with C until March, 1821, when she gave him leave to depart, and he thereupon left her. Soon afterwards, and within the time limited for the exhibition of claims, but before B became twenty-one years of age, he exhibited said note to C as executrix, and demanded payment. In an action on such note, brought by B against D, administrator de bonis non of the same estate, it was held, 1. that this claim accrued and became absolute when C dispensed with the further performance of the condition, and consequently, that the exhibition so made was sufficient, without any subsequent presentation alter B became twenty.one years of age ; 2. that if otherwise, still the claim having been once exhibited, and its true character and amount made known to the executrix, so that it might have been paid out of the general assets, it was not necessary to exhibit it again after the time of payment arrived ; 3. that the admissions of C were inadmissible against the defendant, there being no privity between him and the executrix.
    Though a demurrer admits facts well pleaded, with a view to a determination of their legal sufficiency ; yet it is strictly confined to this office, and cannot be used as an instrument of evidence on an issue in fact.
    This was an action on a promissory note, made by Samuel Stebbins, deceased, in these words : “ Simsbury, January 7th, 1818. I promise to pay John Wood Pease, when he shall arrive at the age of twenty-one years, the sum of one thousand dollars ; value received. Samuel StebbinsOn the back of the note there was a writing in these words : “ The conditions of the within note are as follows : First, provided the within named John Wood Pease shall continue with the within named Samuel Stebbins until he arrive at the age of twenty-one years, and shall not leave him, or his wife Ursula, without their consent, then the within note to remain in full force: Secondly, provided the said John Wood Pease shall die before he arrives to the age of twenty-one years, he shall receive in exact proportion of the within note according to the time he lives with the within named Samvel Stebbins, or his wife Ursula: Thirdly, provided the within named Samuel Stebbins and his wife Ursula shall decease before the within - named John Wood Pease shall arrive at the age of twenty-one years, he shall be liberated from all obligations to them, and the within note to remain in full force.
    
      Samuel Stebbins
    
    The defendant pleaded in bar, That Samuel Stebbins died in January, 1821, leaving his last will and testament, whereby he appointed his wife, Ursula Stebbins, and Samuel S. Steb-bins, executors thereof, who accepted the trust and proved the will; that the court of probate limited and allowed six months from the 6th of February, 1821, to the creditors of the estate of the deceased to exhibit their claims; that the executors gave due notice of this order; that the executors paid the debts against the estate and the legacies given by the will, and on the 8th of June, 1825, settled their administration account with the court of probate ; that the plaintiff became twenty-one years of age on the 5th of December, 1827 ; that the persons named as executors in the will, continued to be executors until more than one year had elapsed from this time, viz. until the 10th of March, 1831, when said Ursula Stebbins died ; that ■on the 15th of October, 1832, said Samuel S. Stebbins was removed, by the court of probate, from his trust; that the' plaintiff was living with said Samuel Stebbins, deceased, at the time of his death, and continued to live with said Ursula for a long time thereafter, and the plaintiff’s right and claim accrued after the death of said Samuel Stebbins, viz. on the 5th of December, 1827, and was not exhibited to said executors, or either of them, by the plaintiff, within twelve months after the right of action accrued, and is the same for which this suit is brought.
    The plaintiff replied, that he continued in the service of said Samuel Stebbins until his death, and afterwards in the service ■of said Ursula, according to the condition of the note, until some time in the month of March, 18^1, when said Ursula gave to the plaintiff leave to depart from her service, and no longer to continue in her employment; that the plaintiff did then depart therefrom, and has ever since continued absent therefrom, with the consent of said Ursula ; that on the day of March, 1821, and before the expiration of the time limited for the exhibition of claims against said estate, and after the plaintiff was so discharged from the service of said Ursula., the plaintiff caused said note to be exhibited to said Ursula, and the same then was exhibited to and demanded of said Ursula as executrix ; and that the existence of said note has, at all times since, been known by her and by said other executor.
    The defendant, in his rejoinder, averred, that said claim was not exhibited to said executors, or either of them, by the plaintiff, within twelve months after the plaintiff arrived to the age of twenty-one years ; and demurred to the residue of the replication. The plaintiff joined issue; and thus the pleadings terminated.
    The cause was tried, on the issue in fact, at Hartford, September term, 1833, before Church, J.
    The plaintiff claimed, that the note in question was duly presented to Mrs. Stebbins within the period of twelve months after the plaintiff came of full age ; and for this purpose, offered Amariah Kibbe and others, to prove, that Mrs. Stebbins, while she was executrix, admitted and acknowledged the fact to him. This testimony being objected to, by the defendant, was rejected, by the court. The plaintiff likewise claimed, and requested the court to instruct the jury, that upon the facts conceded on the pleadings, by the demurrer, they should find, that the note was duly presented within one year after the plaintiff came of age, and should, therefore, return a verdict for the plaintiff. The court did not so instruct the jury ; and the defendant obtained a verdict. The plaintiff thereupon moved for a new trial; and the case was reserved for the opinion of the supreme court of errors upon the facts stated on the record and on the matters embraced by the motion.
    
      Hungerford and W. W. Ellsworth, for the plaintiff,
    contended, 1. That the note, at the time of the trial, was to be regarded as an absolute note, the conditions having all been spent and become inoperative. The first condition is inoperative, because consent was given ; the second, because the plaintiff did not die in the service of Mr. Stebbins or his wife, but was dismissed from it; and the third, because he was not discharged by reason of their death.
    2. That if a presentation of the note was necessary, after it became payable, it was sufficiently presented; for it had been presented to the executrix ; and once presented, always presented. No particular/or nr of presentation is necessary. The existence of the note as a legal claim, it having been once presented, is enough.
    3. That the evidence introduced by the plaintiff, was admissible. Here was the admission of the very person to whom the claim was to be exhibited, and while that person was acting in the performance of her official duty.
    4. That if the acknowledgment of Mrs. Stebbins was not evidence, the fact which it was adduced to prove, was admitted, by the demurrer ; and no further evidence was necessary.
    
      Sherman and Toucey, for the defendant,
    contended, That the right or claim in question accrued after the death of Mr. Stebbins. At his death, no right or claim existed, nor was any thing due. The case was like that of a covenant of warranty before eviction ; (Griswold v. Bigelow, 6 Conn. Rep. 258.) or of a claim against the estate of a deceased partner, before the insolvency of the surviving partner. Pendleton v. Phelps, 4 Day 476. To entitle the plaintiff to the sum mentioned in the note, he must, in the first place, have lived until he arrived at the age of twenty-one ; and secondly, he must have continued in the service of Mrs. Stebbins until he was twenty-one, or been ready and willing to do so. The right of action accrued when he arrived at twenty-one, on the 5th of December, 1827.
    2. That presentment within twelve months after the right of action accrued, was indispensably necessary, by the statute. Stat. 203, 4. tit. 32. c. 1. s. 17.
    3. That the verdict finds, that there never had been any presentment of the right of action on which this suit is founded. Non-presentment within twelve months, is pleaded in bar. The allegation is directly denied, by the plaintiff; issue is taken upon it; and the jury have found, that there was no such presentment. Upon the verdict, therefore, the defendant is entitled to judgment.
    4. That the evidence offered by the plaintiff, was inadmissible. The admissions of the executor are not evidence against the administrator de bonis non. Mrs. Stebbins is not a party to this suit. But the admissions of an executor, even when he is a party, will not revive a debt barred by the statute of limitations. Peck v. Botsford &• al. 7 Conn. Rep. 172. There no privity between an administrator de boms non and his predecessors. Alsop v. Mather & al. 8 Conn. Rep. 584. A judgment against a surviving partner, is not evidence against the estate of a deceased partner. Sturges v. Beach, 1 Conn. Rep. 507. The admissions, in this case, were not part of the res gesta.
    
    5. That the demurrer is not evidence on the trial of the issue to the jury. It never was intended as an instrument of evidence. When it admits facts, it admits them for the sole purpose of presenting their sufficiency for determination.
   Church, J.

The question raised by the demurrer to a part of the plaintiff’s replication, and reserved for the advice of this court, is, whether the exhibition of the note in question to Ursula Stebbins, one of the executors of Samuel Stebbins deceased, within the time allowed by the court of probate for the exhibition of claims against his estate, was sufficient; or was it necessary that such claim should have been a£ain presented after the plaintiff attained to the age of twenty-one years ?

I think that no other exhibition of the note, than that set forth in that part of the replication which has been demurred to, was necessary.

Three conditions were attached to the note, none of w'hich need be considered, except the first; because no fact transpired giving effect to the others.

The claim of the plaintiff arising upon this note, before the death of the testator, and until Mrs. Stebbins gave him leave to depart from her service, while he was still a minor, wras conditional; but as soon as she for whose sole benefit the condition then existed, dispensed with its performance, the note became absolute, though payable at a future time. Whitney v. Brooklyn. 5 Conn. Rep. 406. Champion v. Hartshorn, 9 Conn. Rep. 564. Farnham v. Ross, 2 Hall 167.

By the 17th section of the act for the settlement of estates, it is enacted, that “ the courts of probate shall have power to direct executors and administrators to give public notice to the creditors of the deceased, to bting in their claims against his estate within such time as the court shall limit and appoint, not exceeding eighteen nor less than six months.” Slat- 203. tit- 32- c. 1. s. 17. The claim in question, at the death of Mr. Stebbins, was a claim against his estate, though conditional; and it was not only the privilege but the duty of the to present it to the executor within the time limited by the court of probate. Painter v. Smith, 2 Root 142. Randall v. York, Kirby 314.

This claim is unlike another class of claims, the exhibition of which is regulated by the last proviso of the same section of the act referred to, which declares, that when a right or claim shall accrue after the death of the deceased, it shall be exhibited within twelve months after such right of action shall accrue, and shall be paid out of the estate remaining after the payment of the debts exhibited in the time limited,” <fcc. P. 204. It is very obvious, that the primary object of this proviso was, to regulate the exhibition of claims which should accrue after the expiration of the time limited by the courts of probate, and which could not be supposed to be known to the executor or administrator until after the assets had passed out of their hands. Such are claims arising from breaches of covenants of warranty ; claims arising against the estate of a deceased copartner, by reason of the insolvency of a survivor; &c. which, in many cases, do not exist until it is too late to provide for their payment in the ordinary course of administration. But the claim in question had accrued, and had become absolute, before the time limited by the court for the exhibition of claims. Before the enactment of this last proviso, in 1821, the presentation of claims of the nature therein described, might have been made at any time, and prosecuted at any time after an estate was supposed to be settled ; and^this was an evil intended to be remedied by this proviso. Backus v. Cleaveland, Kirby 36. Pendleton v. Phelps, 4 Day 476. Griswold v. Bigelow, 6 Conn. Rep. 258. The evil was, that the presentation of claims was delayed too long, and not that it might be made too soon. If, therefore, this claim was of the kind supposed by the defendant, and did not accrue until after the death of the testator, it by no means follows, that having been once exhibited and its true character and amount made known to the executor, so that it might have been paid out of the general assets, that it was necessary again to exhibit it, after the plaintiff arrived at full age, and the time of payment arrived: on the contrary, the law does not require this. The replication of the plaintiff must, therefore, be declared sufficient, and judgment, according to the stipulation of the parties, be entered for the plaintiff to recover the amount of the note in controversy..

From the foregoing view of the case, it results, that the issue in fact closed to and tried by the jury, upon another part of the replication, .was an immaterial issue; and that the opinions expressed by the judge on the trial, to which exception was taken⅜ as appears on the motion for a new trial, need not here be determined ; but as they have been discussed and considered, it may not be improper to express an opinion thereon.

The question submitted by the pleadings to the jury, was, whether the note in suit had been exhibited by the plaintiff to Ursula Slebuins, one of the executors, within twelve months after the plaintiff arrived at the age of twenty-one years ; and to show that it had been so exhibited, the plaintiff offered witnesses, to prove, that the said Ursula, while executrix, had acknowledged that fact. This testimony was rejected, by the judge; and in my opinion, it was properly rejected. . The present action is prosecuted against this defendant as administrator de bonis non of Samuel Stebbins, the said Ursula having died, and her co-executor removed from office. There is no privity between this administrator and thosegexecutors. Executors are agents or trustees only, whose duty it is to administer according to the will of the testator and according to law, and not to subject the estate by their admissions. Bacon v. Fairman, 6 Conn. Rep. 121. Peck v. Botsford, 7 Conn. Rep. 173. Alsop v. Mather, 8 Conn. Rep. 584. Allen v. Irwin, 1 Serg. & Rawle 549. Grant v. Chamberlain, 4 Mass. Rep. 611. Toller 448. Mason's devisees v. Peter's admrs. 1 Munf. 437.

But it was further claimed, by the plaintiff, that upon the facts conceded on the pleadings, by the demurrer, the court should have instructed the jury to find, that the note in question was duly presented within twelve months, as averred in the replication. This claim of the plaintiff cannot be supported. A demurrer presents only an issue in law to the court for consideration : the jury have no concern with it: and although it is a rule of pleading, that a demurrer admits facts well pleaded, for the sole purpose of determining their legal sufficiency ; vet as a rule of evidence, it was never supposed, that a demurrer admitted any thing. Tompkins v. Ashby, 1 Moody & Malkin 32. (22 Serg. & Lowb. 239.)

The other Judges were of the same opinion, except Bissell, J., who was not present when the case was argued, and therefore, gave no opinion.

New trial to be granted.  