Fenner v. Manchester Others ( 1859 )

The replication seeks to avoid the plea of the statute of limitations, by setting up a disability of the plaintiffs' testator to sue or prosecute his demand, after the time when he took administration on the estate of Israel G. Manchester. He could not sue himself. Six years had not expired from the date of the note, or, from the time when the note was payable, to the time when Welcome Fenner became the legal representative of the debtor. But although the administrator might not bring a suit for his claim, the statute authorizes him to present and prosecute his claim before the commissioners; and to avoid the difficulty of prosecuting his claim, which would be presented in the ordinary courts of common law, provision is made, that if any creditor entitled to distribution of the assets of an insolvent estate is dissatisfied with the allowance of a claim by the commissioners, presented by the administrator in his own behalf, he may appeal from such allowance, and litigate the same in the supreme court. The administrator can assert his claim in this mode, and is under no disability, in the case of an insolvent estate. He may assert his claim in the same manner as other creditors. There being no disability, we do not see why the positive provisions of the statute of limitations should not be operative, and applicable to this case as or to any other, and, therefore, the demurrer must be overruled.