Baker v. Bush , 25 Ga. 594 ( 1858 )

By the Court.

Benning, J.

delivering the opinion.

Is an executor or administrator hound to plead the statute of limitations to a suit against him, on a cause of action barred by the statute, at the death of the testator or intestate ?

It is certain that he is not, if the letter of the statute is to govern.

And it seems certain, that he is not, if decided cases are tgovern. Norton vs Flutter, 1 Atkyns 526. Castleton vs. Fanshaw Prec. Ch. Ex-parte Dewdney 15, Ves. 498, Wins. Ex'ors 1283. (1535.)

Shewen vs. Vanderhorst (1 R. & M. 347,) is hardly to the contrary. In that case “the Lord Chancellor, (Lord Brougham,) held that after a decree for an account of debts, &c., had been pronounced, and the Court by that means had taken possession of the estate, the statute of limitations might be set up in the Master’s office, as well by a creditor or-legatee as by a personal representative.” 2 Dan. Ch. Pr. 157-When the Court has acquired possession of the estate the case becomes altered. The Court then by the Master becomes itself the representative of the estate, and the question whether the statute shall or shall not be pleaded, becomes one for him, and ceases to be one for the executor, (or administrator.)

Whether the Master himself is bound to take the objection, is a question which was discussed in the above case, but his Lordship declined giving any opinion upon it.” Id. Ibid.

If principle be made the test, it would seem, that the executor or administrator is not bound to plead the statute. The «estator or or intestate is not bound to plead it; and the executor or administrator stands in his place.

We think, then, that an executor or administrator is not bound to plead the statute.

Of bourse if he is not bound to set up the statute against a debt due from him to a third person, he is not bound to set it up, against a debt due from him to himself in his individual character, but is at liberty to retain the amount of that debt.

Judgment affirmed.