Salisbury v. Black's Adm'r , 6 H. & J. 293 ( 1824 )

Archer, J.

delivered the opinion of the court. It Ms been contended in this case, that the statute of limitations is a bar to a recovery in this action. This question depends upon the ascertainment of the time when the cause of action accrued. The appellants allege that it accrued at the period assigned by law for. the passage of a final account in the orphans court. Such a determination would limit the terms of the contract; for the parties have fixed lio limited period for the ascertainment of a deficiency of assets. There is no stipulation to that effect. But the express agreement is, that the money paid should be refunded whenever a deficiency shall actually happen. The authorities cited in favour of this position,' referring to cáses in which the party who derives a benefit from the contract stipulates to do some act, before the benefit of which he is in pursuit is recoverable, are inapplicable to this case, for the obligee had never agreed Upon any definite period, at which the deficiency should appear. ' The only evidence which the statement furnishes of this deficiency, are the accounts and proceedings of the orphans court. By an examination of these it will be found, that the goods of the testator were never fully administered until the year 1814, at which period a very considerable deficiency appears. But it has been urged, that from an examination of. the dates of the several disbursements for which allowances were claimed, it appears there was a deficiency of assets at the time of the death of James Black in 1803. It is manifest, from an inspection of the evidence, that at the very time the bond was executed there was an insufficiency of assets. Yet the fact was not ascertained, nor could it be known, until the goods which had come to the executor’s hands were administered. When the account of the executrix of James Blackens exhibited in 1804, property to a considerable amount, which had been returned in the inventory, was then the subject of litigation in an action of replevin. Nor does.it appear by the testimony in the cause, that this action had been terminated, until it was announced in the account of 1814. It is true that this account has not the usual indications of a final account. It is not stated to be such, and further time appears to have been demanded by the executrix for the purpose of closing the estate. Yet, to every purpose, as concerns this question, the estate juay be considered as closed, and the ascertainment of the 'ieficieucy as made; for all the property liad been applied to the payment of debts, and was insufficient to discharge them. Nor could the representative of James Black, in any account, have lawfully claimed to intermeddle with any yiffacts of George Black, if ¡such liad existed, or, as such representative, have charged herself with them. Indeed, the record furnishes us with no intimation that there were other assets than such as were administered upon. But if they had existed, they would have been alone subject to the control of an administrator de bonis non. As the action then first accrued, when the deficiency was ascertained in IBM, the statute of limitations is no bar to this action.

It has been con tended, that a special request was necessary to be proved before the right of action existed. Bu t no special request is necessary in a case like this, where the debt becomes due on a contingency which is to happen after the execution of tire contract judgmem'