Lowe's Adm'r v. Jones , 15 Ala. 545 ( 1849 )

CHILTON, J.

The error assigned in this case, is, that the circuit court overruled a demurrer to the replication of the plaintiff, to the plea of the statute of non-claim.

The replication which is pleaded in short, by consent, avers “ that the said David Lowe, administrator as aforesaid, immediately after obtaining his letters of administration as* aforesaid, and qualifying as such administrator, left the state of Alabama, and within two months after he obtained his. said letters of administration, died without returning to this State ; and the plaintiff further says, that no successor of said David Lowe, in said administration, was appointed, until the grant of letters to the defendant, on the 7th day of July, 1842, and that the bonds described in the plaintiff’s declaration, were presented to the defendant on the 8th day of September, 1843.”

It appeared by the plea, that letters of administration were granted on the estate of David Lowe, on the 9th day of July, 1838 ; so that more than four years elapsed from the first grant of letters, to the time of presenting the claim.

The statute declares, that claims shall be presented within eighteen months after the grant of letters, &c. Digest, 195, <§> 17. But it is insisted by counsel, that the statute did not run, as the administrator, immediately after his appointment, left the State. This point is concluded by the decision of this court, in the case of the Branch Bank at Decatur v. Donelson’s adm’r, 12 Ala. Rep. 741.

Another question, however, comes up. It is this. The first administrator died within two months from the grant of letters to him. His successor had been appointed only fourteen months before the presentation of the claims, and adding the two months of the first administration to the fourteen of his successor, they make only sixteen months during .which there was an administrator in existence, to whom the presentation of the claims in suit could have been made. Should the intervening time, when there was no administrator upon the estate, be counted, in computing the time for the statutory bar ?

The general rule, in respect to the statute of limitations, undoubtedly is, that when it once begins to run, it continues, notwithstanding an intervening disability to sue. The same rule, by analogy, we think, should apply to the statute of non-claim. It is true, that exceptions have, by a kind of judicial legislation, been engrafted on this rule, and which have been so long and uniformly acted upon, as to become authoritative upon the courts. But we are not disposed to carry these exceptions further than they have already been settled by previous adjudications. The case at bar does not fall within any of them. The statute is peremptory, and makes no saving or exception in cases where the administrator leaves the State or dies. One of the objects of its enactment was, doubtless, to speed the settlement of the estates of deceased persons, and to compel the presentation of claims against estates at an early period after the grant of letters, when the persons interested in contesting them would be the better able to test their justness, and to adduce their proof. The construction which wc place upon it, favors this object, and certainly conforms to the letter of the statute.

. The case of Hemenway v. Gates. 5 Pick. Rep. 321, wag decided upon a statute of Massachusetts, which we have not been able to find, limiting the time of bringing actions against administrators, to four years. The court held, that the administrator, de bonis non, could not connect his administration with that of the original administrator, who had died, so as to make out the four years, but must himself have been administrator for four years from the grant of letters to him. However correct the decision may be, as a construction of thejr statute, we do not regard it.as an authority requiring the construction contended for of our statute of non-claim- Were such rule adopted here,, where administration of estates are s,o often changed, the whole policy of the act would, in many cases, be defeated for if none of the previous administrators had retained their- fiduciary character for eighteen months., the Statute would create no bar, though twenty years had elapsed from the first grant of letters. It would thus often happen, that the statute, of limitations-would bar a claim, which would not be barred by the statute of non-claim, although the latter statute requires the lapse of only one-fourth the time required, by the former to render the. bar complete,

The exclusion of the six months,, within which, time no suit is; allowed to be brought against an administrator after grant of letters to him, in computing the time required to perfect a bar under the general statute of limitations, seems fo result, as a consequence of the statute. The plaintiff in such case, could not,, by any act, of his, assert his remedy in the si-x- months which are thus excluded. Not so in. regard to the statute of non-claim. The creditor can have an administrator appointed, or. can apply himself in certain cases, so that there is no impossibility as to the presentation of his claim, when he has it in his power to render it practicable. And in this consists the distinction between the case at bar and the case cited by the counsel, of Hutchison v. Tolls, 2 Porter’s Rep. 44.

Our conclusion is, that the replication was bad, and the demurrer should have been sustained. Let the case he reversed and remanded.