Smith v. Kimball , 105 Mass. 499 ( 1870 )

By the Court.

The plaintiff, in order to take the case out of the statute of limitations, relied, 1st. on payments made by the testator in his lifetime; 2d. on a transaction with one of his executors after his death, in the course of which a receipt was given by the plaintiff to that executor, and in which his co-executor took no part. The only exception taken at the trial was to the admission of that receipt in evidence. But the bill of exceptions finds that the court gave careful instructions to the jury, (not objected to by the defendants) how far and in what manner the rest of the transaction to which it related should affect either defendant, and upon the construction of the General Statutes as to the effect of part payment by one executor to take a case out of the statute of limitations. Under the statutes, the receipt certainly could not bind an executor who had no part in the transaction. Gen. Sts. e. 155, §§ 13-17. The jury must therefore be presumed to have been so instructed; and whether the plaintiff was, or lawfully could be, allowed to recover against the executor with whom he dealt, is rendered wholly immaterial by the finding of fche jury against both defendants, which must have been returned upon the other issue, of payments by the testator in his lifetime.

Exceptions overruled.