In Re Kneeream's Estate., 8721.

• Citation: 196 S.E. 362
• Decision Date: 03 May 1938
• Docket Number: No. 8721.,8721.
• Court: Supreme Court of West Virginia
• Parties: In re KNEEREAM'S ESTATE.

196 S.E. 362

In re KNEEREAM'S ESTATE.

No. 8721.

Supreme Court of Appeals of West Virginia.

May 3, 1938.

Rehearing Denied June 21, 1938.

Syllabus by the Court.

1. Under Code, 55-2-8, part payment of a debt does not affect the running of the statute of limitations thereon.

2. Under Code, 55-2-10, the provision of a will charging real estate with the payment of testator's debts does not affect the statute of limitations, unless specific debts are plainly indicated.

Error to Circuit Court, Jackson County.

Proceeding in the matter of the estate of Sallie D. Kneeream, deceased, wherein

[196 S.E. 363]

H. H. Brown, claimant, filed his claim for balance due on a note executed by Sallie D. Kneeream, deceased. To review a judgment sustaining the executors' plea of limitations, the claimant brings error.

Judgment affirmed.

Lee, Blessing & Steed, of Charleston, for plaintiff in error.

Russell, Hiteshew, Adams & Randolph, of Parkersburg, for defendant in error.

HATCHER, Judge.

July 29, 1922, Sallie D. Kneeream, now deceased, executed a negotiable note for $4,000, payable to claimant, H. H. Brown, one year from date. Two payments only were made on the note; $104 on May 30, 1930, and $250 on May 30, 1933. Mrs. Kneeream died in January, 1934, testate. Her will directed payment of her debts, but made no specific reference to the note. Claimant filed his claim for balance due on the note in 1935. The executors of decedent pleaded the statute of limitations. The plea was sustained by the circuit court.

Claimant contends that the effect of the statute of limitations was nullified by (1) the partial payments on the note, and (2) the testamentary direction to pay debts.

1. The ancient common law of England did not limit the time for bringing an action on a contract. Williams v. Jones, 13 East 449. The first limitation thereon was 21 James, c. 16, § 3, enacted in the year 1623, which provided that the action must be brought within six years after the right accrued, "and not after." The statute itself contained no exceptions; but in the course of years it was relaxed by judicial construction to exclude "first an acknowledgment by words only; secondly, a promise by words only; and thirdly, part payment of principal or interest." Lord Campbell in Cleave v. Jones, 6 Ex. 573, 578, 579. The statute of James was re-enacted in most, if not all, of the states with little, if any, variation, except as to the period of limitation. (Five years in Virginia. Rev. Code 1819, c. 128, § 4.)

In 1828...