
    Nathaniel Pendleton, Richard L. Hallett, Philip Rhinelander, William Rhinelander, Richard Hartshorn, William Kenyon, Joseph Lindley, John Delafield, Edward Laigh, Petitioners; Timothy Phelps, John Bulkeley, Peleg P. Sanford, Elias Shipman, Nathan Beers, Respondents.
    
    April, 1810.
    
      A claim against the estate of a deceased partner, accruing in consequence of the insolvency of the surviving partner, after the statute of limita tionshad run upon the claims against such estate generally, is not barred, though not exhibited within the period limited by the statute.
    THIS was a petition in chancery. The circumstances stated in the bill, so far as they are necessary to understand the point decided, were as follows: In February, 1801, Peleg Sanford and Timothy Phelps, merchants in company, under the firm of Phelps Sanford, applied to the petitioners to make insurance on the freight of the schooner Betsey, from JYew-York to St, Jago de Cuba. The policy was valued at 4,000 dollars, and the amount was underwritten, in different proportions, by the petitioners. The schooner sailed from JYew- York, and after arriving in sight of her destined port, was captured and carried into Jamaica. The owners immediately made an abandonment, which the underwriters accepted, and paid for a total loss. The vessel and cargo were libelled in the viceadmiralty court of Jamaica, and, upon trial, a restoration of the property was decreed, the owners first giving bond to abide the event of a rehearing in the English admiralty court, to which the captors appealed, and from which the appeal was dismissed and the sentence below confirmed.
    Pending the appeal, a dispute arose between the underwriters and the insured, respecting the liability of the former to contribute to the expenses of the trials, and their right to receive freight, pro rata itineris per acti, stated at 16-17ths of the voyage insured. The matter was submitted to arbitrators, who awarded that the underwriters were entitled to a pro rata freight, upon payment of a proportionable part of the expense consequent upon the capture, in case the sentence of the viceadmi-ralty court should be confirmed. The petitioners, in pursuance of the award, paid their proportion of the ex-' penses incurred by reason of the capture. The arbitrators made their award in 'February, 1S03. In April, 1804, the sentence of the viceadmiralty court was confirmed.
    
      Peleg Sanford died in April, 1802, abundantly solvent, having made a will, in which the respondents, Shipman and Beers, were named executors, who accepted the trust, and caused the will to be proved and approved. Shortly after the decision in favour of the ship and cargo, the petitioners commenced actions against Phelps, as surviving partner of the firm of Phelps is" Sanford, to recover freight for that part of the voyage performed before the capture.
    It was agreed, that all the causes should abide the event of a single trial, which eventually resulted in favour of the plaintiff. In 1806, Phelps became bankrupt, and obtained an act of insolvency in his favour; the claim of the petitioners remaining wholly unsatisfied. Peleg P. Sanford is now sole heir to the estate of Peleg Sanford, deceased. The petition sought relief against the heir and executors in consequence of the insolvency of Phelps, the surviving partner.
    To this bill there was a demurrer; under which the respondents relied upon the statute of limitations of this state against the claim stated in the bill, which provides, íhát any persons not being inhabitants of this state shall have liberty to exhibit their claim against an estate which shall not be represented insolvent, at any time, within two years after publication of notice; the same. statute having previously limited a shorter time for thé exhibition of claims generally .
    
    For the petitioners it was contended, that they were-not crec¡nors 0f Sanford at the time of his decease, or within two years after. They were not creditors, either in law or in equity, until the bankruptcy of Phelps. There was, therefore, no necessity of exhibiting this claim to Sanford’s executors within the two years specified in the statute. The term “ claim,” as it is there used, is synonymous with the word debt, and imports a right to demand money out of the estate of the deceased. But can it be said that a person, who has no such existing right, and perhaps never will have, is a creditor, or has a claim which must be exhibited within a limited time ? Commissioners cannot report on future contingent claims. The estate of a deceased person is in certain cases to be sold for the payment of debts; but it cannot be sold to pay contingent claims. The cases in the English books which show what claims may be proved under a commission of bankruptcy, will illustrate our law, and confirm the position for which we contend. Tully v. Sparkes, 2 Stra. 867". Crookshank v. Thompson, id. 1160. Hockley v. Merry, id. 1043. Goddard v. Van-derheyden, 3 Wils. 262, S. C. 2 Bl. Rep. 794. Ex parte Adney, Cowp. 460. The case of Backus v. Cleaveland, Kirby, 36. decided in this state, is more directly in point.
    If at the expiration of the two years, the petitioners had released all claims and demands whatsoever, it would have been no bar to this claim. There was no antecedent debt or duty; and therefore a release would not bar it. Hoe’s Case, 5 Co. 71. Hancock v. Field et al., Cro. Jac. 170. Belcher et Ux. v. Hudson, id. 222. Whit-ton v. Bye, id. 486- Porter v. Philips, id. 623. Cage v. Acton, 1 Ld. Raym. 518.
    The counsel for the respondents contended, that the édaim ought to have been exhibited to Sanford's executors within the two years. The estate of Sanford was solvent; and when this is the case, the law does not reT ’ ’ quire claims to be proved to the executor. He pays ^ such as he pleases, being liable on his bond for any abuse of his trust. But in case of an insolvent estate, the commissioners, who are the officers of the court of probate, decide on all claims presented to them, and their decision is conclusive. In solvent estates, the creditor is required only to exhibit bis claim; in insolvent estates, he must prove his claim.
    The object of the bond given by the heirs to refund, is to furnish means of payment for claims which the executor may have improperly rejected. In cases of insolvency it is the object of our system to bring estates to a final settlement.
    It is no reason for not presenting a claim, that the amount is uncertain. Such must necessarily be the damages for breach of covenant, and in many other cases. Jones v. Woodhull, 1 Root, 298.
    The cases cited from the English books are all on the principle that the claims could not be sworn to ; and by their statutes of bankruptcy, no claims can be sworn to, unless they are certain and liquidated. Our rule in regard to the estates of deceased persons is different. Unliquidated claims, as well as liquidated, may be exhibited against the estate of a person deceased. The case of Filly v. Brace, 1 Root, 507. was cited. [Edwards, J. Before the case of Filly v. Brace, the superior court had decided otherwise ; though manifestly contrary to British authority. Livingston, J. said, that the only question here was, whether the petitioners were creditors of the estate of Sanford. There must be, within the two years, a claim, so that the claimant may be termed a creditor. It is of no consequence whether the claim be liquidated, or not.]
    At law there is no claim against a deceased partner; but in equity both partners owe the debt, and also thejr representatives. The remedy is indeed aerainst the siir-_ . ' viving partner only; but there is no rule of law which « • • limits the debt to him. It is correct m a court of equity to say, that Sanford, or his representatives, owed tác whole of this money.
    Further, the money paid in this case was for a consideration which happened to fail. There was never any foundation for the payment of this money. The underwriters ought never to have paid it. The vessel ought never to have been condemned. There was, therefore, an equitable right to recover this money out of Phelp.» Vf Sanford when the vessel was condemned in the West Indies.
    
    The arbitrators decided, that there was a claim against Phelps ⅛1 Sanford under certain contingencies, which contingencies actually happened. The petitioners could have made a claim. They might have exhibited their claim, if they had not proved the amount precisely; and this would have been sufficient to save the case out of the statute.
    It is the policy of our laws that all claims should be limited. The statutes of limitation are favourably regarded in our courts. [Livingston, J. asked if this claim was not barred by statute, would it ever be barred by our common law ?]
    The counsel for the respondents answered in the negative.
    
      
      
        Stat. Conn. tit. Co. c. 1. s. 23.
    
    
      
       Vide Slat. Conn, tit. 60, c. 1, 17.
      
    
   Livingston, J.

delivered the opinion of the court. After stating the case, as it appeared from the bill, he observed, that the only question was, whether the petitioners were creditors of the estate of Sanford in such a sense as to require the exhibition of their claim within the two years limited by the statute. It is the opinion of this court that they were not. It would have answered no purpose for the petitioners to have exhibited a demand against Sanford’s heirs. There is no case in En~\ gland, or in this country, in law or equity, of pursuing! the effects of a deceased partner while the surviving! partner is solvent. Phelps was solvent during the wholif two years claimed as the term of limitation.

This is different from the case of a demand payable at a future period. It was here impossible to know that there would ever be a demand against Sanford, as it could arise only in consequence of Phelps’s insolvency. This was an event not to be foreseen, or calculated upon. The executors could not withhold property from heirs and devisees for such an uncertain demand. There is some force in the argument derived from the section of the statute requiring heirs to give a bond to refund in case of future creditors. This is like the case of a covenant of warranty; on which a claim may never arise.

It is said, that after a claim is discovered, it must be presented, like other claims, in two years. But there is no force in such an argument. There is no law of that sort.

The demurrer is overruled; and let the bill stand for an answer.  