Rockport v. Walden , 54 N.H. 167 ( 1873 )

Sargent, C. J.

This bill is brought under the provisions of chapter 7, Laws of 1872, sections 2 and 3, which are as follows:

2. “ Whenever any one has a claim against the estate of a deceased person, which has not been prosecuted within the time limited by law, lie may apply to the supreme judicial court by bill in equity setting forth all the facts; and if the court shall be of the opinion that justice and equity require it, and that said claimant is net chargeable with culpable neglect in not bringing his suit within the time limited by law, they may give him judgment for the amount of his claim against the estate of the deceased person ; but such judgment shall not affect any payments or compromises made before the commencement of such bill in equity.”

8. “ The provisions of this act shall apply to all claims, whether the time for prosecuting the same had or had not expired at the time of the passage of said act.”

This act wa:s approved July 4,1872.

The following facts appeared or were found by the court: The plaintiffs recovered a judgment against the testator prior to March 20, 1849, so that execution issued on said day; a demand upon the same was made upon the testator in his lifetime, but not paid, and the execution was presented to the defendant as executor, and payment demanded of him immediately after his appointment as executor, who did not pay. Said Russell died October 27,1866, and the defendant was appointed executor, March 17,1868. A deed of cei'tain real estate in Portsmouth was given to the testator, and recorded April 19, 1856. This land he held from that time to the time of his death, a period of 10i years, openly and without any incumbrance, and he devised it in and by his last will; and the court find that he concealed nothing ; and though the court find that the plaintiffs were informed and believed that the land thus appearing on the record as his was not in fact his, but belonged to somebody else, yet it does not appear that- the testator ever made any such representations to the plaintiffs or anybody else; and we infer that he did not do so, by the finding that the said property was not concealed.

This bill was filed January 4,1878, and the court, among other tilings, held that the provisions of chapter 7, section 2, of the laws of 1872, were applicable to this case, and that the plaintiffs were not chargeable with culpable neglect in not bringing this suit within the time limited by law.

Without stopping to inquire whether the finding of the court upon the facts is now open for discussion, and without inquiring whether the finding is sufficient without finding all the facts required by the act (section 2), let us examine this proposition and see whether chapter 7, sections 2 and 3, of the laws of 1872, are applicable to this case. They arc in terms no doubt, for the law seems to have been made expressly to meet this identical case.

But can the case be met in that way ? The admitted facts in the case are, that this defendant was appointed executor of the will of the deceased testator, March 17,1868, and this bill was not brought till January 4,1873, lacking less than three months of five years from the time of the granting of administration.

Chapter 179, section 5, of General Statutes, provides that “ no suit shall be maintained against any administrator for any cause of action against tlie deceased, unless the same is commenced within three years next after the original grant of administration,” with certain exceptions which do not arise in this case. Now this term of three years, within which any suit by these plaintiffs against this, defendant must be brought, and after the expiration of which no suit could be maintained against the administrator, had expired not only long before this suit was brought, but long before the law was passed which authorized this suit to be brought. The law was passed July 4, 1872 ; the three years from the time of the original grant of administration expired March 17,1871; so that before this law was passed the plaintiffs’ right of action was completely and forever barred. The defendant had this legal and perfect defence to any action the plaintiffs might ever bring upon this claim.

This right had become vested in the defendant. The administrator in such cases has no right or power to waive this plea, as it has been held that he may the general statute of limitations, when it had run against the claim before the death of the testator. It is very questionable, we think, whether that holding was not incorrect, and whether a wide door for fraud and collusion and the unjust preference of some creditors at the expense of others was not thus opened, which it will be well to close as soon as can properly be done. But in this case the statute creates a bar which none can waive. “ No suit shall be maintained against any administrator unless,” etc. This statute he cannot waive. He cannot prevent or avoid the effect of this statute, even by a new promise in writing, so as to affect the estate. Hodgdon v. White, 11 N. H. 208; Amoskeag Co. v. Barnes, 48 N. H. 25; Hall v. Woodman, 49 N. H. 295, 304.

This right of the defendant to be forever discharged from this claim or any suit upon it had become completely vested before this law was passed. Can a new statute, made after such right had become vested, take away or remove or avoid that right ? The twenty-third article of the bill of rights was intended to proliibit the making of any law prescribing new rules for the decision of existing causes, so as to change the ground of the action or the nature of the defence. In Woart v. Winnick, 3 N. H. 481, Richardson, C. J., and in Clark v. Clark, 10 N. H. 380, 386, Parker, C. J., it is settled that a law will be equally retrospective in its operation if it affect an existing cause of action or an existing right of defence, by taking away or abrogating a perfect existing right, although no suit or legal proceeding then exists.

And it is held that, if a right of defence has not become vested by the lapse of the full time required for the limitation of the action, the law may be repealed; for though the right would soon be vested if the law was not repealed, yet that if, when it is repealed, it has not become vested, the repeal would not be unconstitutional; but when such right under the statute of limitations has become vested and perfect, any law which afterwards annuls or takes it away is retrospective.

That is precisely this case; — and in Rich v. Flanders, 39 N. H. 304, it is held that a statute changing the rules of evidence or of practice is ordinarily to be classed with those affecting the remedy, and not unconstitutional unless they destroy vested rights; yet, if a statute which in form affects the remedy, or the rules of evidence or of practice only, practically and in fact divests vested rights, it is unconstitutional and void. This is clearly the effect of this statute, so far as it was attempted to make it apply to actions upon claims where the time for prosecuting the same had expired before the time of the passage of said act.

When the right of the defendant had become vested by the lapse of time, it is immaterial whether the plaintiffs were chargeable with culpable neglect or not in suffering it to pass. See, also, on this point, Merrill v. Shurburn, 1 N. H. 213; Roby v. West, 4 N. H. 287; Ken-nett’s Petition, 24 N. H. 139; Willard v. Harvey, 24 N. H. 351; Adams v. Hackett, 27 N. H. 294; Gilman v. Cutts, 23 N. H. 382; Lake-man v. Moore, 32 N. H. 413; Towle v. Eastern Railroad, 18 N. H. 547; Howard v. Hildreth, 18 N. H. 107; Pickering v. Pickering, 19 N. H. 389; Little v. Gibson, 391 N. H. 505; Morgan v. Perry, 51 N. H. 559; Railroad Co. v. Elliot, 52 N. H. 387.

Our conclusion is, that chapter 7, section 2, of the laws of 1872, is not applicable to this case for the reasons above stated, and that this statute is unconstitutional, so far as it was attempted to make it applicable to cases like this where the time of prosecution had expired before the law was passed. The order for a judgment in favor of the plaintiffs must be revoked, and

The bill must be dismissed.