Buckmaster v. Reed ( 1885 )

Suit against Administrator for share of Estate—Plea of Statute of Limitations.

April, 1885.)

The defendant, Jehu M. Reed, was appointed administrator of Sarah A. Buckmaster, November 14, 1867, and gave bond in the usual form.

The administrator passed his final account February 17,1870, showing an unappropriated balance in his hands of $1,277.56.

This form of action was chosen rather than an action on the bond, in order to avoid the statutory plea of limitation. As an answer to the plea of the statute, the plaintiff replied, by way of demurrer, first, that the defendant was a trustee, and secondly, that the case of action arose upon a record, to wit, the settlement of the defendant’s account in the Register’s office. Issue was joined on the demurrer.'

As to the plea of the statute of limitation. At common law an action of assumpsit would not lie against an executor or administrator for a legacy or distributive share, without proof of an "express promise by him to pay it. (He then read the provision of the statute on the subject.) Without assets in his hands to pay it, no legal obligation is imposed upon him to pay if. 4 Harr., 430; 3 Harr., 433. The objections to the plea in support of the demurrer to it are, first, that the cause of action was a debt of record, and secondly, because the action was against a trustee, an administrator, for a liability of his as such, and the statute of limitations does not apply to a trust. Now, the statute itself expressly declares that no action of assumpsit shall be brought after three years from the accrueing of the cause of action.

A number of other points were made and argued, but .were not passed upon .by the court, for the reason that the court held the statute of limitations to be a complete bar, and gave judgment for the defendant on the demurrer.