Clark v. Clement , 33 N.H. 563 ( 1856 )

Eastman, J.

When an individual dies possessed of estate in different governments, it is in general necessary that an administration should be granted in each government where the property is situated. This may not be required where the estate is solvent and the property consists of real estate only, but the rule applies to all other cases that now occur to us.

The principal administration is granted in the State or'government of the domicil of the deceased, and the other administrations are ancillary or auxiliary to the principal one.

An executor or administrator, appointed in the place of the domicil, cannot, by virtue of that appointment, prosecute suits in any other State or foreign government, or claim to be recognized there as a representative of the deceased; nor can he be made answerable as such in any State other than that in which he has received letters of administration, or done acts which may subject him to liability as executor in his own wrong. Morrill v. Dickey, 1 Johns. Ch. 153; Doolittle v. Lewis, 7 Johns. Ch. 45; Story’s Conflict of Laws 422; Goodall v. Marshall, 11 N. H. 88; Willard v. Hammond, 1 Foster 382.

At the time of the decease of Moses N. Clark some articles of household furniture and a watch belonging to him, as well as the notes in suit, were in this State, and administration was properly granted here on his estate to his father, Moses Clark. In 1851 Moses Clark, not having completed the settlement of the estate, died ; and upon his decease administration de bonis non was granted to the plaintiff. At this time the defendant had property in this State upon which the notes or a part of them might be secured, and subsequently had further rights in real estate, and an attachment of the same has been made by the plaintiff. .This administration was, therefore, rightfully granted, that the notes might be collected, and the avails of the same, or the balance thereof upon the settlement of the administrator’s account, might be transmitted, if so ordered by the probate court, to the place of domicil of the deceased. The authorities already cited show such to be the rule, and the plaintiff is, therefore, rightfully in court as the representative of the deceased.

The statute of limitations has not been pleaded, and consequently it becomes unnecessary to consider the questions that might have arisen upon the case had such a plea been interposed. We think, however, that it could not have availed the defence. The statute of limitations which is to control, is that in force at the time and place when and where the suit is brought. Gilman v. Cutts, 3 Foster 381, and authorities there cited. And by our statute these notes would have been saved from its operation, the defendant having never been a resident of the State since the notes were given.

The real estate of the defendant having been attached in this suit, the plaintiff must have judgment unless the notes are barred by the general rule of law, independent of the statute of limitations.

The general rule is, that all contracts for the payment of money, whether sealed or unsealed ; all mortgages, bonds, judgments, notes, accounts, &c., are presumed to be paid after the lapse of twenty years, if there is no evidence to repel the presumption, and to show that the debts are still unsatisfied. Matthews on Presumptive Ev. 379; 1 Phil. Ev. 160; 1 Greenl. on Ev., sec. 39; Hopkinton v. Springfield, 12 N. H. 328; Bartlett v. Bartlett, 9 N. H. 398; Jackson v. Sackett, 7 Wendell 94; Rodman v. Hooper, 1 Dallas 85; 8 Conn. 168; 8 Pick. 187.

Some authorities hold that the presumption of payment arises in less than twenty years, but these are exceptions to the general doctrine upon the subject.

But in Du. Belloix v. Ld. Waterpark, 1 Dowling & Ryland 16, the rule is held not to apply to simple contracts, on the ground that actions on such contracts are covered by the statute of limitations, which must alone govern; and the doctrine as to simple contracts is said to be changed in England in this respect. The rule, however, is believed to remain unchanged in this country, and has been stated in broad terms in this State, as the cases above cited will show.

The presumption of payment arising from lapse of time is not an absolute bar, like the statute of limitations; but is only evidence from which the inference is to be drawn that the debt has been satisfied, and may be rebutted by various circumstances. Where it is entirely unexplained, a jury ought to draw the conclusion of payment; but there may be many circumstances which it is proper > should be considered in determining the question. Oswald v. Legh, 1 Term 270; 1 Burr. 434; 8 Mod. 278; 3 P. Williams 288; Darwin v. Upton, 2 Saund. 175, b; Campbell v. Wilson, 3 East 298; 70 Johns. 415; 16 do. 214.

An admission within twenty years that the debt is due, or a payment of interest, removes the presumption. McDowell v. McCullough, 17 Serg. & Rawle 51; 6 Vesey 519; 2 Washington’s C. C. 323. So inability to pay, as poverty, has been held sufficient. Fladong v. Winter, 19 Vesey 196; Daggett v. Tallman, 8 Conn. 168, 176; 3 Mann. & Ryland 119. Insolvency, also, or a state approaching it. Boardman v. DeForest, 5 Conn. 1; 12 Ves. 266. So that the parties were near relations. 12 Ves. 266.

Another answer is, the long continued, permanent absence of the debtor. Newman v. Newman, 1 Starkie 101; Shields v. Pringle, 2 Bibb 387; 8 Conn. 168; 19 Ves. 200.

Or absence abroad, as where the creditors resided in England and the debtor in the United States. Bailey v. Jackson, 16 Johns. 210; Goldhawk v. Duane, 3 Wash. C. C. 323.

If any disability exist where the right accrues, such as infancy, coverture and the like, these must be removed before the twenty years begin to run. Jackson v. Johnson, 5 Cowen 74; 4 Taunton 830.

One of the notes in suit was dated September 1, 1829, and the other March 1,1834, and this suit was commenced February 9,1853. The presumption, therefore, is, that the first note had been paid and the other not. Is there anything in the facts stated, to remove the presumption of payment as to the first note ? At the time of the decease of the plaintiff’s intestate, this note had been due about nine years; and for the first six or seven years of that time the parties to it had resided in the same places." During that time there is no evidence either way in regard to the payment or non-payment of the note. Since the decease of Clark the circumstances under which the notes have been held show that payment has not been made. This is quite apparent from the facts stated by the commissioner.

Upon the report of a commissioner the court are required to render such judgment as is warranted by the facts reported, unless one of the parties elect to try the case by a jury. Comp. Stat., chap. 181, sec. 38.

What the decision of a jury might have been, had the case been submitted to them, is of course unknown; but the facts appear to us to rebut the conclusion that the note was paid. They reduce the time to nine years; and the parties being acquaintances of long standing, and apparently on terms of friendship, it would not appear to be very unusual that the note should remain unpaid.

The twenty years on the other note had not elapsed before suit brought, and the presumtion of payment does not arise in that case; and upon a view of all the facts we think there should be judgment for the plaintiff for the amount of both notes, and interest.