
    
      Wm. Buchanan, Senr. v. Wm. Buchanan, Jnr. admr. of John Buchanan, dec'd.
    
    B. administrator of J. B. (deed.) who was the executor of W. B. (deed.) admitted in stating his accounts before the ordinary, that a legacy left by the will of W. B. to his son was a debt due by his intestate, and a sum sufficient, of the assets, was left in his hands to pay it. This was held to be sufficient to charge him as administrator, with its payment at law.
    The Statute of limitations began to run from such settlement before the ordinary, and the defendant having continually admitted the debt, to a short time before action, it was held that such admissions prevented its operation.
    
      Before Wardlaw, J. at Abbeville, March, 1849.
    Assumpsit to recover ($96 60) the balance of mutual demands which had subsisted between the intestate, John B. in his own right, and the plaintiff, Wm. B. Sen.; and ($286 90) the balance of a share in the estate of old Wm. B. which John B. as executor of that estate, owed to the plaintiff.
    The counts alleged promises by the intestate, and by the defendant as administrator. The pleas were the general issue and the statute of limitations.
    Old Wm. B. father of John B. and of plaintiff, by his will, dated 1830, appointed his son John his executor — directed that his land should be equally divided between his two sons John and William, and that then the nett amount of his estate, including the land, should be so divided as to make the shares of his sons and four daughters all equal. Old Wm. died in 1836. The land was divided between John and William. John as executor received the assets and paid the debts of his father, and made payments to the husbands of three of his sisters. The fourth sister had died, leaving several minor children, named Roman, of whom P. D. Kleugh was guardian. John died in Dec. 1837. The defendant, his son, became his administrator.
    On 31st January, 1842, an accounting and settlement of the estate of old Wm. B. was had in the Ordinary’s office, according to which the Ordinary’s decree was rendered and recorded. At this, the various persons, who represented the daughters of old Wm. B., and the plaintiff, were present; so also was the defendant, as administrator of his father, the deceased executor, in person, and by his counsel, who made up the statement of accounts. It was ascertained that $1 60 was due to each of three daughters, $799 40 due to the children of the deceased daughter, and $286 90 due to the plaintiff.
    Soon afterwards, (either 11th or 21st Feb. 1842,) all parties in interest, the widow and eight children of John B., were present in the Ordinary’s office, where an accounting was had of the estate of John, at which the defendant, as administrator, was again present in person and by counsel. — Ac- ' ccording to the settlement there made, the Ordinary’s decree was made and recorded, which bore date 21st Feb., although a receipt written on the day of settlement, and hereafter mentioned, bears date 11th February. In making this settlement, after the balance in the hands of the administrator was ascertained, according to his 'returns, to it were added some notes belonging to the estate, not then collected by him, and from it were deducted some debts due by the estate, not then paid, or not contained in the returns; and the final balance thus obtained, was distributed. In determining the debts to be paid, it becomes necessary to decide how much the plaintiff was entitled to. He was present. A roll of bank bills conlaining between $85 and $90, (the witness who counted them could not remember the exact amount,) had been found amongst the papers of John B., marked “Wm. Buchanan’s moneyand at the finding the defendant had said, “ this is uncle Billy’s money.” The plaintiff claimed that this money was a balance which his brother John held of the proceeds of plaintiff’s cotton. Mr. Burt and the Ordinary undertook to adjust the matter, and they stated an account— “ John B. Dr. to Wm. B. cotton sold in 1837, $ Cr. various matters of account due by Wm. to John, $ ,” leaving a balance which with interest amounted to $96 60. Under the head of “debts to be paid,” were then put “Wm. Buchanan, Sen. $96 60.” “Wm. Buchanan’s distributees, $291 49.” “ Paid to Kleugh, guardian, $799 40.” The $799 40 had in fact been paid to Kleugh just before the settlement, and not been put into the return of the administrator, but no return of the administrator or other evidence, appeared, to show that the $286 60, or $1 50 to each of three persons, all ascertained to be due at the former settlement, had on that day, or before or afterwards, been paid by the administrator.
    With all that was done the defendant was entirely satisfied, except with the $96 60. At this he grumbled — and he was heard to say he would not pay it. Thinking, however, that he would pay according to the adjustment that had been made, Mr. Burt drew a receipt, which the plaintiff signed, by his mark, and Mr. Burt witnessed. This receipt contains a statement of the account “ John B. to Wm. B.” as it had been adjusted, showing a balance of $96 60 — and then these words signed by the plaintiff as aforesaid — “ received from Wm. Buchanan, administrator of John Buchanan, $96, in full of the above account and demand, and in full of all claims and demands against the said John Buchanan, deceased.” After this receipt was signed, it was left on the table. No money or note then passed. The whole of the plaintiff’s two demands was counted up and spoken of. The defendant thought the amount too large. After some time he said to the plaintiff, “ will you take good notes ?” The plaintiff said it had been in paper long enough — he wanted something else. Both parties went home in company with Mr. Kleugh, and until they separated talked as if nothing had been paid.
    Afterwards an action on his administration bond was brought against the defendant, in behalf of plaintiff, which was soon discontinued. An action of assumpsit was then commenced 2d March, 1844, and at March term, 1845, was discontinued, just as the trial was opening, on account- of the defendant’s unexpectedly producing the above mentioned receipt, which the plaintiff’s counsel had never heard of before, and could not then at all explain.
    After various attempts at compromise, this suit was commenced 8th March, 1848.
    Additional testimony was adduced, as follows :
    
      Capt. Irwin:
    
    Heard the matter often spoken of. Defen'•dant always said that he owed his uncle something coming from his father’s estate, but he did not know- exactly how much. In answer to a proposition for an arbitration, April, 1846, he said his uncle was disposed to keep it in law, and he could keep him out of it by a receipt he had. He frequently said that he had orders from some of the legatees, (distributees of his father’s estate,) not to pay, and if he did, he would do so at his own risk — that he would never plead it out of date — would suffer his neck veins to be cut first. This repeated about the commencement of this suit.
    
      Willis Cobb :
    
    About four years ago, heard defendant say that he would have settled with his uncle Billy long ago, but some of the legatees were not willing, and he would not pay it out of his own pocket.
    
      Wm. Rowan:
    
    Three or four years ago heard about the same as Cobb; and last Court (Oct. ’48) heard defendant say that if the case could be put off that Court, he was willing to settle by the Ordinary’s office.
    P. D. Kleugh:
    
    About a year ago — can’t fix the day precisely — was in the Ordinary’s office. The parties came in together — said they were going to settle — asked for papers; and the Ordinary got both the former settlements. After a short time, the defendant said he could not settle without seeing his brother — went off — and when he returned, said his brother Jack objected.
    
      James Buchanan, son of plaintiff:
    Just before the Court at which the defendant first produced the receipt, he said he was willing to settle it at $92 or $96 — can’t recollect which. He often said he was indebted to the old man, my father, and would rather cut his throat than plead it out of date— that he would have settled, if it had not been for Jack, and JoneB llis brothei-in-law. '
    The same day Mr. Kleugh speaks of, the parties were near the C. H.j after talk, defendant said he wanted to settle.
    Father said “how?” Defendant answered, “there’s only one way — by the Ordinary’s books — the settlement is already made.” They then agreed to go into the Ordinary’s office and settle — went—got the papers' — and were about to close the matter, when the defendant jumped up and said, “ I must go and see Jack!” Went off — and returning, said Jack was not willing.
    A nonsuit was moved, on the ground that the bar of the statute of limitations had not been removed by sufficient proof. The circuit Judge referred the facts involved to the jury-
    After argument, His Honor submitted the whole case to the jury, with a full explanation of the law involved in it. His instructions seem to be objected to by the defendant in only one single particular, it is therefore unnecessary to detail them. Under three general heads, propositions were announced and inquiries directed.
    1. Has the plaintiff adduced satisfactory proof of his demands ? As to the $96 60, has he shown either sufficient evidence to charge the intestate, John Buchanan, independent of the administrator’s admissions — or has he shown the promise of the administrator to pay, made whilst it was a subsisting debt? As to the $286 90,' has he 'shown the express promise of the administrator to pay, made after precise adjustment of the balance owing to the plaintiff?
    2. Has the plaintiff sufficiently rebutted the defendant’s evidence of payment? The receipt produced by the defendant must be considered fair until the contrary be shown ; and according to its terms must be taken to be an acknowledgment of payment in full, unless error in those terms has been shown; even if unfairly in the defendant’s hands, having been fairly signed, it furnishes evidence that only $96 60 was at its date claimed to be due ; which must prevail, unless it has been shown that the $286 90 was not in fact embraced in the ac-knowledgement. Has the plaintiff shown that the money was not paid, and that the receipt has been dishonestly acquired or used ? Has he shown that the demand of $286 90 was not embraced in the receipt?
    3. After a demand has been barred by the statute of limitations, there must be either a direct promise to pay, or a distinct unequivocal admission unaccompanied by any indication of unwillingness to pay. Before the bar, a slighter admission may re-establish the demand, so that time will run from the admission. Has the plaintiff brought his demands severally within these rules ? If the statute of limitations had not commenced to run in the lifetime of John B., the bar would not have been complete until the expiration of four years and nine months from his death. As to the latter demand of $286 90, which is in fact a legacy sued for at law, the right of action in this Court depends upon proof of such a promise by the executor or his administrator, as amounts to the assumption by the executor of an individual instead of a representative liability.
    The jury found for the plaintiff the full amount of his demands.
    The defendant renewed his motion for nonsuit in the Court of Appeals, on the following ground:
    That the plaintiff’s demand was barred by the statute of Limitations and the plea thereof, and there was no proof of such a new undertaking as would take the case out of the statute.
    Or for a new trial.
    1. Because the verdict of the jury was founded on the erroneous assumption that the receipt of the plaintiff did not embrace any and all demands against the estate of Wm. Buchanan, deceased, as well as against the estate of John Buchanan; and that his Honor erred in charging the jury that the demand for $291 49 against the former estate, was not barred by the statute of limitations, for the reason that the statute did not commence to run until the expiration of 9 months from the death of the executor, instead of the testa„tor.
    2. Because the receipt to the administrator of John Buchanan “ in full of all demands against John Buchanan,” who was executor of Wm. Buchanan, taken at a settlement of both estates by the administrator of the executor, for $96 60, was evidence that nothing more was due the signer of it on settlement, and narrowed the cause of action to that amount, and the verdict of the jury was in this respect directly contrary to the law and the evidence.
    3. Because all the claims of the plaintiff were barred by the Act of limitation before the commencement of the action, and the verdict of the jury was in this respect contrary to the law and the evidence.
    4. Because the .verdict of the jury, generally, was contrary to law and evidence.
    
      Noble, for the motion.
    
      M’ Gowan, contra.
   Curia, per O’Neall, J.

In this case the claim of the plaintiff consists of two parts, first $286 90-100, his share of his father’s estate under his will, of which the defendant’s intestate was executor; second for $96 60, money found in the possession of - the intestate, at his death, belonging to the plaintiff. That these are true and riglit claims have been f0und the jury; and there can be no doubt of their cor- / rectness, in this respect, when it is remembered, that in the sett;lement before the Ordinary, they were set down, as debts to be paid by the administrator of John, and a fund was left in his hands to do so ! — The first question which arises is could the legacy of $286 90-100 be recovered at law ? There can be no doubt, that if the case rested merely on the executor’s assent, it could not; there must be an express promise to pay a pecuniary legacy to give the Court of law jurisdiction. In such a case, the legacy becomes the consideration of the promise, and the action is on the promise, and not on the legacy. That the intestate John assented to the legacy is plain enough from his payments to others, in equali jure. At his death, however, it still rested as a legacy, a trust assented to, and which could, be enforced in Equity. But in February, 1842, the defendant, the administrator, chose to consider it as the debt of his father, it was so put,down, in the settlement, and by it the defendant' stated it was to be paid. The distri-butees of his father, who were present, and whose shares were ascertained by the settlement, left in his hands a sum sufficient to pay it, and the $96 60, by deducting the aggregate from the assets in his hands before distribution was effected. This was an admission of these sums as debts of the intestate, and a promise, both express and implied, to pay, and gives the Court jurisdiction. But it is not even necessary to notice this ground. For the plaintiff, on the proof of such facts, could say to the defendant, you, as administrator of your father, retained in your hands the money which he was bound to pay, and you are therefore liable as such administrator, for money had and received to my use. But it has been supposed, that this was an attempt to charge the administrator personally for the debt of his intestate, and to do so that it required a note, or memorandum in writing, under the statute of frauds. That however is altogether a mistake; he is charged as administrator, and his promise is only regarded as evidence of the debts ! As to the statute of limitations there is no ground to sustain it. The statute could not begin to run in favor of the defendant, until the settlement, in the Ordinary’s office, in February, 184?. For then he made the promise, on which this action is founded. From that time down to April, 1846, and possibly to October, 1848, the defendant admitted he, as administrator of his father, was indebted to the plaintiff, ■ and on one occasion declared he would suffer his neck veins cut before he would plead the statute of limitations. When the debt is barred, then to give the plaintiff a cause of action, there must be an explicit promise to pay, or a distinct admission of a subsisting debt, which the party is willing and liable to pay. But when the statute has not run out, any admission is sufficient to prevent the statute from running. That is the case here.

The other matters involved in the case were facts properly submitted to the jury, and the Court is entirely satisfied with their verdict.

The motion for nonsuit or new trial is dismissed.

The whole Court concurred.

Motion refused.  