Smith against Porter and others executors of Smith, 1 Binn. 209

Tilghman C. J. delivered the opinion of the court. This case comes before the court on a special verdict; and the single question is whether a debt due on account, and barred by the act of limitations, is revived by the following clause in the will of Robert Smith: “ I order and direct all my “just debts and funeral expenses to be paid.” Clauses of this kind are very usual in last wills. It is a form of old standing, probably introduced from English precedents.

There are some countries in which it now is, or heretofore may have been useful to direct the payment of debts in a man’s will, because it may tend to make certain kinds of property subject to the payment, which otherwise would not have been so. But in Pennsylvania it is altogether unnecessary, because without such direction the whole property of the testator real and personal, must be applied to the payment of his debts. To give this direction the largest import which it can bear, it is no more than the desire of the testator expressed to his executor, that his just debts shall be paid.

Whether the debts are just or not "must be left to the judgment of the executor before he makes a voluntary payment; and if upon a candid examination he thinks a debt not justly due, it would be doing violence to the words of the testator, so to construe them, as to deprive the executor of the legal means of defence by pleading the act of limitations. But an executor is not allowed to plead that act against a just debt: on the contrary if he knows it to be just, I think it is as dishonest in him to use that plea, as it would be in the case of his own debt.

Considering, therefore, the clause in question according to its obvious meaning, without regard to judicial decisions, it cannot be said that it revives a debt barred by the act of limitations. But as this Court is bound by the authority of cases adjudged by their predecessors, it becomes necessary to inquire what decisions have been made. Some period for the limitation of actions is necessary for the peace of society. I believe that in all enlightened countries regulations for the purpose have been adopted.

Like all other good things, they are liable to abuse; and the indignation which is excited in honest bosoms at an attempt to evade payment of a just debt, by a legal subterfuge, has sometimes produced decisions which, although not now to be contradicted, are scarcely to be reconciled to reason. The slightest acknowledgments of debt, though very far from any thing like a promise, have been held to be evidence sufficient to justify a jury in finding that there was an actual promise.

But the industry of the plaintiff’s counsel has not produced a single case in which it has been decided, that a direction in a will like the present revives a debt barred by the statute. It was several times determined between the years 1690 and 1726, that where a testator creates a fund in trust to pay his debts, the creditors barred by the statute shall come in equally with others. In the year 1727, however, the House of Lords in England, reversed a decree which was founded on this principle in the case of Blakeway v. The Earl of Strafford, 3 Bro. Par. Ca. 305.

In the year 1744, Lord Hardwicke states the rule to be, that debts barred by the statute shall be paid out of a trust fund of lands created for payments of debts, although he declares that he does not see any good reason for it. 3 Atk. 107. But in 1754, he says, that this principle has been a good deal shaken by the decree of the House of Lords in Lord Strafford's case, and that if the case before him had turned upon that point he should have taken time to consider it. Amb. 231. In the case of Legasticv.

Corone in 1730, Moseley 391. it was expressly decided that the plea of the statute of limitations is a good bar in a case where a testator ordered his debts to be paid. This case is reported by Mosely who does not stand high in reputation; it is probable however that the decision was made as reported, because it was but three years after the decision in the house of Lords in Lord Strafford's case, and seems to have been founded on it.

In our own courts, I know of no decision on the point in question, although I understand that on more than one occasion intimations have fallen from different judges unfavourable to the revival of the debt; but as no decision was made, it would not be proper to give weight to these intimations. In point of authority then the matter stands thus: there is one decision on the point that the act of limitations is a bar, notwithstanding the direction to pay all just debts; and there is no express decision to the contrary.

This being the case, and feeling no inclination to go beyond the principles that have been established, I think myself bound to say that I do not conceive the direction by Robert Smith to pay his just debts, can be fairly construed so as to deprive his executors of the right to plead the act of limitations in such cases as they think proper. I am therefore of opinion that a nonsuit be entered according to the agreement of the parties, the plaintiff having elected to enter a nonsuit instead of judgment for the defendants.