Benjamin v. De Groot , 1 Denio 151 ( 1845 )

By the Court, Jewett, J.

The several causes of action set forth in the first, second, third and fourth counts of the declaration, are of that class, which by the statute of limitations (2 R. S. 295, § 18) are barred, unless the action is commenced within six years next after the making of the promises. The plea, therefore, is appropriate to raise that defence. By the provisions of the statute, (2 R. S. 448, § 8,) the term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited by law for the commencement of actions against executors or administrators. It has been held by this court that this provision of the latter section was not intended, and does not alter the form of pleading. (Howell and Strong v. Babcock's ex’rs, 24 Wend. 488.) The first replication to that plea, to avoid that bar, sets up that the defendant’s testator, as well at the time of .making the several promises as at the time when the several causes of action accrued to the plaintiff, was out of this state, at London in the kingdom of Great Britain, and there remained till he died in the year 1835; that after his decease and on the 11th day of December, in the year 1840, and not before, letters testamentary upon the last will and testament of the deceased were duly granted and issued by the. surrogate of New-York to the defendant, as executrix thereof, and that this suit was commenced within six years next after the granting of said letters testamentary.

Two questions arise upon this replication: 1. Does it avoid the plea by any facts which legally exempt the case from the operation of the general statute of limitations 1 I think 'the statute had not began to run in favor of the testator at the time of his death. (2 R. S. 297, § 27.) It is a principle of general application, that not having began to run in the lifetime of the decedent, it could not begin until there was a personal representative against whom a suit could be brought; and the replication shows that such representative did not exist until the 11th December, 1840. Although not within the words of the provisions of the statute last referred to, I think it comes within the equity of it. It is conceded that if the testator had returned to this state before his death and had died here, the demand would not have been barred by the general statute of limitations; and I am of opinion that the fact of the death of the testator abroad does not alter the case in that particular. 2. But it is insisted that if the provision's of the 27th section do apply to the case of a person dying abroad, the six years given by that seer tion would commence running from the time of the probate of the will in this state; for from that time the creditor could proceed to compel the issuing and acceptance of letters testamentary or of administration with the will annexed; and that therefore the replication is in fault, on the ground that it does not offer the issue that the action was commenced within six years after probate of the will. It is true that provision is made by statute, (2 R. S. 70, 71, §§ 9,14,) by which a creditor and others may take proceedings after probate of a will to compel the executor, &c. to take letters testamentary within a given time after notice; and in case of neglect or refusal, authority is given to the surrogate to grant letters of administration with the will annexed to such creditor or other persons; but the answer to such point is, there is nothing in the statute, nor is there any rule requiring the creditor to take such steps. The time of granting administration, and not the time oí probate of the will, is the time when the statute of limitations commenced running in this case.

It is also insisted that this replication is bad for lack of form; that the averment that letters testamentary, on the 11th of December, 1840, and not before, were issued, is not sufficient; that such averment does not necessarily exclude the fact that letters testamentary had been issued before that date to some other person ; that the averment should have heen that no other or prior letters had been issued. I am inclined to think that the replication contains that degree of certainty in' this respect required by the rules of pleading. (1 Chit. Pl. 513, 624; 1 Saund. Pl. 49, note 1.)

The second replication, I think, is bad in substance. It replies a new promise in avoidance of the statute of .limitations, made by the executrix. It departs from the allegations in the declaration. The declaration counts upon promises made by the testator. It is no good answer to a plea of the statute of limitations, upon such promises, that the executor promised, &c. Besides, it presents an issue upon the short bar of six months prescribed by statute, (2 R. S. 88, §§ 35, 38,) which the defendant has not pleaded, and it is no answer to the-general statute of limitations which he has pleaded. (Reynolds v. Collins’ ex'r, 3 Hill, 36.)

This replication is also bad in many other respects. It is chargeable with replying the evidence of facts, instead of the facts, upon which the plaintiff relies to sustain his action.

The plaintiff is entitled to judgment upon the demurrer to the first replication, and the defendant to judgment upon the demurrer to the second replication, with liberty to each to amend upon the usual terms.

Ordered accordingly.