Haskell v. Manson

• Decision Date: 07 January 1909
• Citation: 200 Mass. 599,86 N.E. 937
• Parties: HASKELL v. MANSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 599

86 N.E. 937

HASKELL v. MANSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1909

COUNSEL

G. C. Abbott, for plaintiff.

Alfred Hemenway, C. B. Barnes, Jr., and J. W. Farley, for defendants.

OPINION

KNOWLTON C.J.

This is a bill in equity to recover the amount of five nonnegotiable promissory notes, called in the bill evidences of indebtedness, which were signed by Jacob M. Haskell and made payable to his son Waldo C Haskell, with interest at 7 per cent. The son died on February 1, 1906, and the father died on the 4th day of November in the same year. The father left a will in which his partner Albert C. Manson, his wife Adeline L. Haskell and his daughter Adeline M. Haskell, were named as executors. The first of these notes, which was more than 13 times as much in amount as all the others together, was barred by the statute of limitations nearly 7 years before the son's death, and the last was so barred nearly 4 years before his death. The will of Jacob M. Haskell was made after the death of his son Waldo, and by its terms his widow was to have the income of all his property for her life, and after her death the principal is to be divided equally between his son Edward M. and his daughter Adeline M. After the probate of the will and the appointment of the three executors named in it, the widow was appointed administratrix of the estate of her son Waldo, and sought to collect these notes. They amounted to $15,575, as principal, with interest on nearly the whole amount for about 15 years, at the time of the commencement of this suit. Her son Waldo left no debts, and one half of this amount, if collected, would go to her absolutely as one of his heirs at law, and the other half would go back to her husband's estate. Her coexecutor Manson was unwilling to pay these notes, because, among other reasons, he was advised that the statute of limitations had run against them and that he could not legally pay them. Thereupon she and her daughter joined in a written statement and admission that they, as executors of her husband's will, had made a payment of $1, upon each of the notes, to Mr. Abbott, as attorney for Adeline L. Haskell, 'as she is the administratrix of the estate of Waldo C. Haskell.' The paper closed with a copy of the notes, and contained this recited: 'The object of these payments is to avoid the general statute of limitations, which, in the absence of some evidence of payment, might be pleaded to some or all of said evidences of indebtedness. As such executors we do hereby admit the existence of the debts indicated by said evidences of indebtedness.'

The principal question before us is whether this payment removed the bar of the statute of limitations, so that the other executor cannot rely upon it under his answer. The other two executors were defaulted and as against them the bill was taken for confessed.

It is the rule in this commonwealth, in England, and in most of the American states, that an executor or administrator is not bound to plead the general statute of limitations. Scott v. Hancock, 13 Mass. 164; Baxter v. Penniman, 8 Mass. 133; Emerson v. Thompson, 16 Mass. 429; Slattery v. Doyle, 180 Mass. 27, 61 N.E. 264; Field v. White, L. R. 29 Ch. Div. 358; Midgly v. Midgly (1893) 3 Ch. 282; Shreve v. Joyce, 36 N. J. Law, 44, 13 Am. Rep. 417; Johnson v. Beardslee, 15 Johns. (N. Y.) 3; Hord v. Lee, 4 T. B. Mon. (Ky.) 36. So, too, it is a general doctrine that payment by one of two or more joint executors will have the same effect as payment by all. Such is the usual effect of an authorized official act of an executor, so far as it relates to the property of the estate. But the rule that an executor or administrator is not bound to plead the statute of limitations is an exception to the general rule that it is his duty to protect the property and interests of the estate under his charge. It is universally agreed that it ought not to be extended. An executor or administrator is liable for a devastavit, if the estate suffers through his failure to plead the statute of frauds. Field v. White, L. R. 29 Ch. Div. 358. An executor has no right to create a liability against the estate by making a new and independent contract to pay an alleged debt.

The above-mentioned exception relative to the statute of limitations is founded upon the theory that an acknowledgment and new promise does not create a new liability, but continues in force an old one that otherwise might not be enforceable. There is some ground for holding that, where a debt has been barred by the statute before the death of the debtor, an administrator or executor should not be permitted to revive it, by a partial payment, or a new promise or acknowledgment of any kind. Although the distinction has not been established in this commonwealth between the effect of a payment and acknowledgment by an executor or administrator of a debt which was not barred at the time of his appointment and the payment of a debt that was barred in the lifetime of the debtor; and although theoretically the nature of such a new undertaking by the original debtor may have been treated as the same in reference to a debt already barred as in reference to a debt against which the time of limitation has not expired, it is a significant fact that, in every case that we have found in Massachusetts in which a payment or acknowledgment by an executor or administrator was held to have extended the time, the debt was not barred in the lifetime of the debtor. The executor or administrator was simply continuing in force a debt which was collectible from him after his appointment. In Pole v. Simmons, 49 Md. 14-22, a promise by an executor, after the statute had fully run in the lifetime of the debtor, was treated as a new promise, made without authority, and insufficient to create a liability. See, also, Peck v. Botsford, 7 Conn. 172, 18 Am. Dec. 92; Cayuga County Bank v. Bennett, 5 Hill (N. Y.) 236. In many of the states of this country, either under statutes or the decisions of the courts, a debt which was barred in the lifetime of the debtor cannot be revived by his representative after his death. McLaren v. McMartin, 36 N.Y. 88; Fritz v. Thomas, 1 Whart. (Pa.) 66, 29 Am. Dec. 39; Unknown Heirs of Langworthy v. Baker, 23 Ill. 484; Patterson v. Cobb, 4 Fla. 481; Etchas v. Orena, 127 Cal. 588-592, 60 P. 45; Van Winkle v. Blackford, 33 W.Va. 573, 11 S.E. 26; Smith v. Pattie, 81 Va. 654; Bambrick v. Bambrick, 157 Mo. 423,...