Threlkeld v. Duerson's Adm'r , 10 Ky. Op. 752 ( 1880 )

Opinion by

Judge Pryor:

It is alleged by the appellant, Mrs. Threlkeld, that her grandmother, Mary Duerson, died in the year 1841, leaving a last will by which she devised her estate to her two sons, Thomas and Benjamin Duerson, and to America Duerson and the plaintiff, Mrs. Threlkeld; that this will was probated in that year, 1841, and Benjamin Duerson qualified or acted as the executor and failed to account for the estate that came to his hands; that he made no inventory of the estate, but converted it to his own use; and that he often promised to pay her the value of that part of the estate to which she was entitled, and made these promises within a short time before his death that occurred shortly before the institution of this suit against his administrator.

This action was not instituted until the year, 1875, more than thirty-four years after the probate of the will and after the death of the party whose estate is now attempted to be made liable. Benjamin Duerson never, in fact, qualified as the executor of the will of his mother, and he is liable, or his estate, if liable at all, on the idea that he converted the property to his own use, and promised to account to the appellant for the value of her interest. Such a promise could, no doubt, be enforced if it appeared that a conversion had been made of the estate, and .the action had been instituted within the proper period. This is certainly a stale claim, if it has any foundation in fact, and any court would be reluctant to render a judgment, upon proof of a parol promise to pay after the lapse of so many years from the date of the original liability; but in this case the lapse of time not only evidences the weakness of appellant’s claim, but the weight of the testimony conduces to show that Mrs. Duerson had but little, if any, estate to devise. The commissioner, in a report as to the estate left by the widow, shows clearly that her interest in the land and negroes was only a life estate, or at least that this property was divided between the heirs. She left no estate except household furniture and some stock. This property did not exceed in value $150, and was expended by the decedent, Benjamin Duerson, in having tombstones placed over the graves of his mother and father, as directed by the will.

J. & J. W<. Rodman, for appellant. Caldwell & Harwood, for appellee-.

Benjámin Duerson was a thrifty, prosperous farmer, prompt in all of his engagements, and while there is proof conducing to show that he had made promises to pay the appellant, we cannot regard it as sufficient to revive a liability that originated thirty-four years prior to the assertion by an action at law or in equity to recover the alleged demand. Besides, this is only an action at law, although filed in equity, to recover upon a promise alleged to have been made upon a sufficient consideration. The court below has passed on the facts and we cannot disturb the finding. He cannot be said to have held the property as trustee or in a fiducial capacity, as he never qualified as executor; and if his action as such makes him a trustee, it is too late, after thirty-four years, to give vitality to such an original undertaking, and particularly when it was doubtful as to the existence of the original liability.

Judgment affirmed.