T. N. Waul, Executor, &c. vs. Thomas Kirkman, 25 Miss. 609

Mr. Justice Yerger delivered the opinion of the court. Three errors have been assigned, for which it is said the decree should be reversed. 1. That the claim of Kirkman is not sustained by legal and competent evidence. 2. That it is barred by the statute of limitations of three years. Hutch. Code, 830, §§ 4, 10. 3. That it is barred by the statute of limitations of four years, as provided in

section 12 of the act of February, 1844. Hutch. Code, 831. These questions will be considered in the order in which they have been stated. It is in proof, that the defendant in error was the general agent of Mrs. Hurd, while she was a widow, named Smith, and so continued up to her marriage with S. Hurd, which took place in the State of Alabama on the 5th day of July, 1842. The account commenced on the 31st March, 1838, and the last item of debit in it is dated March 1st, 1842. After the marriage of Mrs. Smith with S.

Hurd, the account on fde was made out and examined by him; and on the 6th day of March, 1843, he made a memorandum in writing in the following words: “ Received an account, as stated above, and find it correct.” A witness named Barker, who made out this account, says that Hurd attended from time to time while he was making it out, and furnished memoranda in relation to it, which were used in preparing the account. Mr. and Mrs. Hurd moved to Mississippi soon after their marriage, and'there are several letters written by Hurd during her life, referring to the debt due to defendant. Mrs.

Hurd died on the 8th day of October, 1843. Prior to her death, she made a will appointing her husband executor of her estate. He qualified as such on the 13th day of May, 1844. Before his qualification he wrote several letters to Kirkman, referring to the debt due to him by Mrs. Hurd, and suggesting modes of settling it. On the 15th of May, 1845, after his qualification as executor, he wrote a letter to Kirkman in relation to the compromise of a suit against him by Mrs.

Pope, and in this letter he says: “ In making a compromise of that sort, it will be necessary to put the debt to you into instalments, for the payment of each of which I would give a note with deed of trust, or mortgage upon the negroes of the estate,” &c. In the same letter he says: “ I find if necessary that I should have a distinct voucher respecting the credited sum of $15,203.19, for which you took my receipt, inasmuch as the ataount must appear in my transactions as executor.” In another letter, dated February 6, 1846, he says: “ Mrs.

Pope has discarded the essential conditions of the proposed compromise, viz.: first securing the debt to you,” &c. The deposition of B. B. Barker identifies the account filed by Kirkman in the probate court, as the same made out by him and handed to S. Hurd on the 6th of March, 1843 ;-and on that account the item of credit referred to in the letter of S. Hurd of 15th May, 1845, is entered in these words: “ Cr. by amount due on settlement of T. K.’s accounts as executor of J. L. D.

Smith, filed in orphans’ court of Lauderdale county, Alabama, date January 1, 1843, being one half of same $15,203.17.” It is very clear, then, from the proof, that the debt which Mr. Hurd referred to in his letters of 15th May, 1845, and 6th February, 1846, and which he expressed his anxiety to pay out of the assets belonging to the estate of his wife, is the same debt probated and allowed in the present suit. But it is said, that the acknowledgments made by Mr. Hurd during the coverture of the justice and legality of this account, are not sufficient to charge the separate estate of Mrs.

Hurd, since the dissolution of the marriage by her decease. It is certainly true, as a general rule, that a married woman cannot make any promise, during the coverture, which will bind her separate estate after the dissolution of the marriage. Nor can any one else, as a general rule, make any such promise. We have referred to the foregoing facts, for the purpose of showing that Mr. Hurd, after his marriage with Mrs.

Smith, and at a time when he was interested in ascertaining the justice of ICirkman’s account, and in resisting any illegal or incorrect charges that might be contained in it, had thoroughly scrutinized the account, and had, in fact, assisted in making it out; and, therefore, well knew that it was entirely just and correct, when he afterwards, as executor of his wife, admitted it to be due, and proposed to make arrangements to pay it.

It is insisted by the counsel for the appellants, that the acknowledgment of this liability by the executor, and an offer by him to pay the account, are not sufficient evidence of the validity of the account, in a proceeding against the estate of Mrs. Hurd. We recognize fully the authority of the decision made by the court in the case of Henderson v. Ilsley, 11 S. & M. 9. In that case, the court held, that an acknowledgment of a debt, or a promise to pay a debt barred by the statute of limitations, made by an executor -or administrator, would not, as a general rule, revive the debt against the estate.

Nor, would such a promise or acknowledgment prevent the statute of limitations from continuing to run against a debt not barred at the time such promise or acknowledgment was made. But that case did not decide, nor do we believe-it to be the law, that a promise or acknowledgment of a debt by an executor or administrator, is not sufficient prirná facie evidence of the original validity of the demand, and, therefore, sufficient to justify the verdict of a jury in its favor in the absence of any other proof, and where the claim is not barred by the statute of limitations.

We are, therefore, of opinion, that the acknowledgment of the account made by Hurd, while administrator, and his proposal to pay the same, are sufficient evidence of the justness and validity of the claim at that time, and warranted a judgment against the estate of Mrs. Hurd, in the absence of other proof, unless the same was barred by the statute of limitations, when proceedings were taken to enforce its collection. 2. This brings us to the consideration of the second question. Was this claim barred by the fourth and tenth sections of the act of limitations, (Hutch. Code, 830) ? That

section provides, that “ all actions upon the case and of account for the recovery of money, except actions upon promissory, &c., shall be commenced within three years next after the cause of such action shall have accrued.” This statute of limitations was passed on the 24th of February, 1844. The last item of debit in the account was made on the 1st day of March, 1842. The cause of action in this case had accrued, therefore, before the passage of the statute, which could not be made to apply to it, without giving the statute a retrospective effect, if the fourth and tenth sections above referred to stood alone. But the eighteenth

section of the statute declares, “ that the periods of limitations established by this act shall commence running from the date of the passage thereof, and that all acts and parts of acts conflicting with and contrary to the provisions of this act, be, and they are hereby repealed.

Provided, however, That the repeal of such acts of limitation as are contrary to the provisions of this act shall not be construed to revive any cause of action which has been barred by any of said acts, nor shall the passage of this act stop the running of the limitations contained in any other act, when the same may have commenced before the passage thereof.” It is difficult to say precisely what the legislature intended by this section; but in the case of Kilcrease v. Shelby, 23 Miss.

R. 162, it was declared, that where the statute of limitations of six years had commenced running prior to the passage of the act of 1844, which reduced the limitation to three years, and the action is brought more than^ six years after the first act commenced running, and more than three after the passage of the act of 1844, the defendant could plead, and would be protected by either act. After very full examination of this point, and reference to the various decisions which have been made touching the statute of limitations of 1844, we think the legislature intended by the eighteenth

section to declare, that in all cases where a cause of action or other right existed prior to the act of 1844, the remedy to enforce the same would be barred after the lapse of the same period of timé from the date of that act which it would take to bar the remedy in those cases in which the right accrued after the passage of that act, with this additional proviso, that if any preceding statute of limitation had commenced running against the claim before the passage of the act of 1844, the defendant might also plead, and rely upon it in bar of the plaintiff’s remedy.

Entertaining this opinion, we think the plea of the 4th and 10th sections of the statute of limitations presents a bar to the plaintiff’s right of recovery, unless there is something which withdraws this case from the operation of that rule. For the plaintiff it is alleged, that the acknowledgment of this debt made by the executor on the 15th of May, 1845, and the 6th day of February, 1846, takes this case out of the. operation of the statute.

In answer to this it is insisted for the defendant, that no promise made by an executor or administrator will revive a case barred by the statute of limitations when made to prevent the statute from continuing to run if made before the bar is complete, and on this point we are cited to the case of Henderson v. Ilsley, 11 S. & M. 9, before referred to.

In that case the court held, that where nothing more than ordinary powers were conferred by the will, an executor could not, by his promise, revive a debt barred at the time of the death of the original debtor, nor prevent the statute from running against claims in which the bar was not complete, or where the statute had not commenced running at the death of the debtor. As before remarked, we recognize this rule.

But in looking to the opinion of the court, it will be seen that the intimation is very strongly made, that such powers may be conferred upon an executor by the will, as will authorize him by an acknowledgment of the debt or a promise to pay it, to take the case out of the operation of the statute. We have no hesitancy in saying, that such a power may be conferred by the will, and we think it is clear that they were conferred in the present case.

By reference to the will, it will be seen, that a very broad power and almost unlimited discretion was conferred upon the executor in every thing relating to the management of the estate and the payment of debts. Prior to the marriage of the testatrix with Samuel Hurd, a marriage settlement was entered into between them, by which one half of the property of the testatrix was settled upon her for her separate and exclusive use, with power to dispose of the same by will. The remaining portion of her estate was settled upon Hurd.

After expressing her desire that the conditions of that marriage settlement should be fulfilled, the testatrix thus proceeds: “ It is my will that my portion of the estate shall remain connected with my husband’s without division, and managed to the best advantage, until the profits arising from the estate shall pay off the debts against it, whether they be in my own name or the name of my husband.” Nothing can be plainer than the will of. the testatrix thus expressed, to place the management of her property under the control of her husband: to be worked and managed without division, to the best advantage, in connection with his own property, “ until the profits arising from the estate, would pay the debts.” Such being her desire, and such being the power conferred upon the executor, it is manifest, that in order to carry .out this intention, he must have been clothed under the will with such powers touching the payment and settlement of-the debts as would enable him to make such acknowledgments of them, and promises of payment at a future day, as would induce creditors to delay suits against the estate, and thus enable him, by the time of payment being thus postponed, so to manage the estate as to pay the debts from the profits accruing therefrom.

Such, we think, were the powers conferred by this will upon the executor, and from the correspondence contained in the record, we think it clear, that the acknowledgment of the debt was made in this case by the executor, and the proposition made by him to pay it in order that the wishes of the testatrix might be carried into effect regarding the management of her estate and the payment of the debts. It will be seen, that in a letter of the executor dated on the 6th of February, 1846, the debt due to the plaintiff was distinctly acknowledged, and also a desire to pay it distinctly expressed.

So strong was this desire, and so justly due did he consider the debt of the plaintiff, that he declined making a compromise with another creditor of the estate, because that creditor was unwilling to enter into it upon the condition that the debt due to the plaintiff should in the first instance be secured. The language of the letter is as follows: “ Mrs. Pope has discarded the essential conditions of the proposed compromise, viz., first securing the debt to you,” &c. What that proposed compromise was will be seen in another letter, written on the 15th May, 1845, in which he says: “ Mrs.

Pope’s lawyers, Watson and Clapp, at Holly Springs, suggested as the basis of a compromise between Mrs. Pope and myself, that I acknowledge the $ 10,000 claim, and she relinquish all claims under the will. I told them, perhaps I might accede to their proposition somewhat modified, but your consent and approbation were necessary to any such arrangement.

In making a compromise of that sort, it would be necessary to put the debt to you into instalments, for the payment of each of which I would give a note with deed of trust or mortgage upon the negroes of the estate, each note secured by a certain number of -negroes.” ■ The acknowledgment of this debt, thus made by the executor, was in writing, and is, therefore, within the provisions of the 16th

section of the act of limitations of 1844. The estate was declared insolvent in November, 1848, at which time three years had not expired from the 6th of February, 1846, the date of the last acknowledgment. After the declaration of insolvency, no suit could be brought against the executor, and the running of the statute of limitations was, therefore, stopped. This principle is clearly established by the decision of the court in the case of Dowell v. Webber, 2 S. & 452, which has been uniformly acquiesced in since it was made. We are, therefore, of opinion that the acknowledgment of the debt in this case takes it out of the operation of the 4th

section of the act, limiting suits to three years. 3. Plaving come to this conclusion in relation to this section, it necessarily follows that the same reasons will govern us in reference to the 12th

section of the statute, which limits certain suits against executors, &c., to four years from the qualification of such executor. The executor qualified in this case on the 13th day of May, in the year 1844. The acknowledgments of indebtment were made, as before stated, on the 1st of May, 1845, and 6th February, 1846; and as the estate was declared insolvent in November, 1848, it is clear, that four years had not elapsed from the period at which this acknowledgment was made, which, in the view we have heretofore taken, prevented the statute from running except from the date of such acknowledgment.

Entertaining these views, we are of opinion, that the decree of the probate court should be affirmed. Smith, Justice, concurs. Fisi-ieR, J., having been counsel, gave no opinion.