Alvis v. Oglesby's ex'Rs

• Decision Date: 02 January 1889
• Citation: 10 S.W. 313
• Parties: ALVIS <I>et al.</I> <I>v.</I> OGLESBY'S EX'RS.
• Court: Tennessee Supreme Court

10 S.W. 313

ALVIS et al.v.

OGLESBY'S EX'RS.

Supreme Court of Tennessee.

January 2, 1889.

Appeal from chancery court, Macon county; H. W. WADE, Chancellor.

S. F. Wilson, J. J. Turner, and J. L. Roark, for appellants. Head & Wooten and John S. McMurray, for appellees.

LURTON, J.

The complainants are the distributees of Elisha Kirby, who died intestate in 1859. They charge that Elisha Oglesby qualified as administrator upon the estate in July, 1859, and that he filed an inventory of the effects of the decedent, and a report of sales of personalty during the year following, and that in 1869 he made a partial settlement in the county court, but that subsequently he died, without completing the administration by a final settlement. This bill is filed for the purpose of surcharging and falsifying the settlement made, and to recover their several distributive shares. The defendants, who are executors of the deceased administrator, deny all charges of waste and devastavit, assert payment by their testator of the assets of the estate in due course of administration, set up and plead the settlement of 1869, and plead and rely upon the several statutory limitations, including the 10-year bar contained in section 2776 of the Code. The bill was filed June 5, 1881, 22 years after the administration granted, and 12 years after the county court settlement, which they seek to falsify. After much proof had been taken, the chancellor, upon the pleadings and proof, decreed an account, and settled the principles upon which it should be taken. In this decree he ruled "that Oglesby's estate is not protected in this cause by any statute of limitation, for the reason that Oglesby, as administrator of Kirby, was an express trustee, and the estate had never been settled." This defense of the statute of limitations presents the first and most important question which is presented by the assignment of errors.

As far back as 1817 it was decided by this court that the statute of limitations, as it then existed, did not bar the suit of a distributee. Pinkerton v. Walker, 3 Hayw. (Tenn.) 221. In Cartwright v. Cartwright, 4 Hayw. (Tenn.) 134, and McDonald v. McDonald, 8 Yerg. 145, the same rule was repeated, and applied to the suit of a legatee. These decisions were followed in several other reported cases, including that of Lafferty v. Turley, 3 Sneed, 157. The opinions in this line of cases were rested upon the propositions: First. That an administrator, by operation of his appointment by the court having jurisdiction, and an executor, by reason of the will under which he was nominated, were express and not implied trustees. Second. That the trusts incident to such an office were trusts cognizable alone in courts of equity; there being then no remedy at law by which a distributee could recover a distributive share, or a legatee his legacy. Third. That the statutes of limitations, as they then were, applied to the forms of action, and not to the cause of action; and, as bills in equity were not expressly mentioned, that therefore, where a cause of action was a trust cognizable in equity alone, that the statute did not apply to suits concerning such trusts. Upon these premises these decisions were logical, and in accord with the decisions in the courts of Great Britain. It was never held in these cases, or any other made by this court, that the statutes of limitation were not as applicable in equity as in law when there was any remedy at law, even in cases of express trust. Said Chief Justice CATRON: "Courts of equity, equally with courts of law, are bound by statutes of limitation in all the varieties of bailment, loans, pawns, deposits, etc., although express trusts, where there are convenient remedies in case at law, or by bill in equity." Armstrong v. Campbell, 3 Yerg. 231. Judge GREEN, that very eminent master of the principles of equity, in delivering the opinion of the court in Haynie v. Hall's Ex'r, said: "The statute of limitations prescribes that certain forms of actions shall be barred within the time limited, and therefore, in its terms, it does not apply to courts of equity; but the courts of chancery, both of Great Britain and this country, have uniformly held that in cases where any remedy exists at law, if a court of chancery gains jurisdiction of a cause, the time fixed in the statute as a bar to the action at law will also be a bar to a bill in chancery." 5 Humph. 291. The sound and well-settled rule in courts of equity is that the statutes of limitation are applied in every case in equity where the trust is not a technical one, of which courts of equity alone take cognizance. The doctrine as stated by Chancellor KENT in Kane v. Bloodgood, 7 Johns. Ch. 110, is "that the trusts intended by the courts of equity not to be reached or affected by the statute of limitations are those technical and continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction of this court." See, also, Peebles v. Green, 6 Lea, 471, where Judge McFARLAND clearly discusses the question.

Down to the enactment of the Code, in 1858, there was no remedy at law against administrators in behalf of a distributee or legatee, for the recovery of a distributee's share or a legacy. The cases already referred to so expressly decide. The act of 1762, which was the only statutory remedy given a legatee or a distributee, provided that the suit should be brought by petition in the chancery court. Statutes of Caruthers & Nicholson, 251. That there was no remedy in the circuit court was expressly decided in Dougherty v. Maxwell, 6 Humph. 446. So continued the law until the Code, when by section 2312 jurisdiction was given the county and circuit courts, concurrently with the chancery court, to entertain the suit of a distributee or legatee "for the payment of his distributive share or legacy." There is, therefore, since the Code, a remedy at law for the recovery of a distributive share or legacy. So, by the Code, the statutes of limitation operate upon the cause of action, and not upon the form.

Another and more important change in the law as it existed at the time of the decisions referred to was made by section 2776, which originated with the Code. This section contains the statute of limitations relied on by the defendants in this cause, and it reads as follows: "Actions against guardians, executors, administrators, sheriffs, clerks, and other public officers on their bonds, actions on judgments and decrees of courts of record of this or any other state or government, and all other cases, not expressly provided for, within ten years after cause of action accrued." By the preceding sections actions against the sureties on such bonds are barred in six years. The bond which he gives as administrator covers every default in his duty as administrator. For failing to account, for a devastavit, or for failing to distribute as required by law, he may be sued upon his bond, and such suit will now lie either in law or equity. Complainants' counsel very earnestly insists that this is not a suit against the administrator upon his bond, and that, therefore, it is not such an action as is contemplated by the statute quoted. If it be conceded for the sake of argument that this is not a technical action upon the bond, then would complainants escape the operation of the statute? Since the line of decisions holding such a suit as this not to be within the statutes, the legislature has so changed the statute law of the state, that, as we have seen already, there is now a remedy at law for the recovery of a distributive share. They have also so changed the statutes of limitations that they now operate upon the cause, and not the form, of action. These legislative changes go to the very basis upon which the decisions of this court had been planted. The very ground upon which this court held that the trust of an administration was not within the intent of the statute of limitations, has, by this legislation, been overthrown, and such suits thereby brought distinctly within the rule which makes applicable the statutes of limitation in equity, as in law, where there is a remedy at law concurrent with...