Abercrombie v. Butts

• Decision Date: 06 November 1883
• Citation: 72 Ga. 74
• Parties: ABERCROMBIE et al. v. BUTTS, administrator, et al.
• Court: Georgia Supreme Court

72 Ga. 74

ABERCROMBIE et al. v. BUTTS, administrator, et al.

Supreme Court of Georgia.

November 6, 1883

September Term, 1883.

[Hall Justice, did not preside in this case.]

1. An acknowledgment, to relieve the bar of the statute of limitations, must be made known to some person. A mere private memorandum, unsigned, and found after the death of the maker, is not sufficient.

( b. ) The paper relied on in this case indicates that the sums were to be paid out of the estate of the writer, and would thus seem to be testamentary in character; but as such it is insufficient for want of proper execution.

2. The usee for life died in 1857, and the right of action to the remaindermen then accrued; the youngest must have become of age by 1878; allowing the same time for them to bring suit after becoming of age as if they had been of age when the act of 1869 was passed, viz.: nine months and fifteen days, the suit brought by them in 1880 was barred.

Statute of Limitations. Written Instruments. Before B. A. DENMARK Esq., Judge pro hac vice. Upson Superior Court. January Term 1883.

Francis J. Abercrombie et al., the children and grandchildren of Nancy H. Trice (formerly Nancy H. Gibson) and of James Trice, brought their bill against John A. Butts, administrator of James Trice, deceased, for an accounting for certain property left by the will of James Gibson, who died in 1853, to his daughter, Nancy Trice, for life, with remainder to her children. James Trice was the executor of Gibson and had in his hands the funds passing under this item of Gibson's will. He sold property so received, and invested in his own name. He died in April, 1880. Nancy Trice died in 1857. The paper copied in the decision was found among the papers of James Trice after his death, and was relied on by the complainants as relieving the bar of the statute. Certain creditors of James Trice were made parties by consent. The facts above stated appearing from the bill, on demurrer it was dismissed and complainants excepted.

John I. HALL, for plaintiffs in error.

M. H. SANDWICH; J. A. COTTEN; A. M. SPEER; BOYNTON & HAMMOND; ALLEN & TISINGER; J. H. HALL, for defendants.

BLANDFORD Justice.

The defendants demurred to the bill filed by plaintiffs in error, among other grounds, because the plaintiffs' claims upon the estate of James Trice, deceased, were barred by the statute of limitations. The court sustained the demurrer on this ground, and dismissed plaintiffs' bill, and this ruling is excepted to and error assigned thereon, and this writ of error is brought to review and reverse the decree dismissing said bill.

To take the case from under the operation of the statute, the plaintiffs rely upon a paper in the handwriting of the intestate, Trice, which was found among his papers after his death. The paper is as follows:

" Nancy H. Trice received from her father's estate $7,160.00, to be divided equally between her children, each one's share $550.77, Pay out of J. Trice's estate. Jan., 1876. Aggregate amount for thirteen children $20,160.10."

There was no signature to the paper; on the back of the same there was written in the handwriting of said deceased as follows:

" For Nancy Trice's children."

The complainants to the bill were Nancy Trice's children. Nancy Trice was the child of James Gibson, and she had intermarried with said James Trice, and died in 1857. Her father, James Gibson, died in 1853, leaving his last will and testament, by which he had devised and beqeathed to his said daughter, Nancy Trice, certain real and personal property for and during her life, and after her death to her children. Said James Trice was qualified and appointed the executor to the will of said James Gibson. James Trice died in April, 1880; the bill was filed in September, 1880.

The main question in this case is, whether the writing found among the papers of James Trice after his death, unsigned by him, was a sufficient acknowledgment of his indebtedness to complainants, so as to prevent the bar of the statute of limitations of the 16th March, 1869.

The Code, §2939, provides as follows: " A payment entered upon a written evidence of debt by the debtor, or any other written acknowledgment of the existing liability, is equivalent to a new promise to pay."

It is insisted for plaintiffs that the writing referred to is a written acknowledgment of an existing liability, and sufficient to create a new promise to pay....