Criswell v. Criswell

The opinion of the court was delivered, November 7th 1867, by

Read, J.

The question is, should this case have been submitted to the jury ? If the Statute of Limitations had not been interposed, there is no doubt the plaintiffs would have been entitled to recover the full amount of the claim, with interest. Is there, then, such a promise or acknowledgment as will take it out of the statute ?

The decedent, in 1839, married Mary Hilliard, a widow, who had one child, a daughter named Rachel, then about nine years of age. Rachel inherited a small sum of money from her father ; her mother, who was her guardian by nurture, received and managed it for her, loaned it out, and received it and then lent it to her husband to pay for some land he had purchased. The amount was about $120. This money up to near his death he recognised as being due, and which he or his executors must and ought to pay. All his. transactions in relation to it were with his wife, and must have been so during the minority of her daughter, whom the mother continued to represent after she became of age and was married. All, therefore, that is testified to as said by the decedent to his wife, is to be considered as said to Rachel, her principal, and to whom the money when received was coming. The testimony, therefore, of Mary George as to the conversation between Mary Roberts and her husband is ample to take it out of the statute. u She (Mrs. Roberts) told him that the doctor said he would die suddenly, and he ought to have it fixed ; said he never intended to keep her out of that money ; that he would pay it as soon as he could; he said if he would never pay it till after he was gone, there would be plenty of property left to pay it.” There was but one debt, that due to Rachel, and in 1861, “ Mrs. Roberts was going up to her daughter Rachel Criswell’s. Mr. Roberts gave Mrs. Roberts a note, a bank-note; can’t tell how much. He told her he would give her the balance when he would get it. Mrs. Roberts then went to her daughter’s.” Another acknowledgment and payment on account of the debt, which no doubt was paid by the mother to the daughter. As, therefore, there was but one debt of ascertained amount, and the mother was always acting for the daughter, and there was direct evidence of a promise to pay, the court were in error in nonsuiting the plaintiff, instead of submitting the case to the jury.

Upon the evidence it is clear that this was a just debt which the decedent desired and believed would be paid by his executor.

Judgment reversed, and venire de novo awarded.