Pease against Phelps, administrator de bonis non of the estate of Samuel Stebbins, deceased, 10 Conn. 62

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.