Man v. Warner

• Decision Date: 29 April 1839
• Parties: MAN v. WARNER and Another.
• Court: Pennsylvania Supreme Court

4 Whart. 455

MAN v. WARNER and Another.

Supreme Court of Pennsylvania.

April 29, 1839

The statute of limitations is a bar to an action on a promissory note, given by a testator in his lifetime, but not due until after his death, if no suit is brought against his executors until more than six years have elapsed after the debt became due; and this notwithstanding provisions in the will for the payment of all debts, and for carrying on the testator's business after his death.

WRIT of error to the District Court for the City and County of Philadelphia, to remove the record of an action brought by Daniel Man, against Joseph Warner and Redwood Fisher executors of the will of Benjamin Warner, deceased.

The action was assumpsit on six promissory notes, drawn by the testator in favour of Joshua and Thomas Gilpin, and by them endorsed in blank, viz.

One note dated 25th of 8th mo. 1821, at 2 mo's. for $457 10

One note dated 13th of 7th mo. 5 806 10

One note dated 18th of 9th mo. 3 430 00

One note dated 18th of 9th mo. 3 510 00

One note dated 23d of 7th mo. 5 650 00

One note dated 16th of 8th mo. 6 802 12

All which notes fell due after the decease of the testator, and were protested for non-payment.

The defendants pleaded non-assumpsit and the statute of limitations. The plaintiff replied to the last plea as follows:

" And the said plaintiff, as to the plea of the statute of limitations above pleaded, saith, That he, by reason of any thing by the said defendants, in their said plea of the statute of limitations alleged, ought not to be barred from maintaining his aforesaid action against the said defendants because he saith, that Benjamin Warner, the testator died viz. on the 24th day of September, 1821, which was between the time of the making and delivering of the said notes, and the time of their falling due, having previously made his last will and testament, in the words and figures following viz.

‘ Be it remembered, that I, Benjamin Warner, of the city of Philadelphia, bookseller, being of sound mind, memory, and understanding, do hereby make my last will and testament, in manner following, that is to say--

First--I will that all my just debts and funeral expenses shall be duly paid and satisfied, for which and other purposes hereinafter declared, I do hereby nominate and appoint my brother Joseph Warner, and my brother-in-law Redwood Fisher executors of this my last will and testament.

Item--I give and bequeath to my beloved wife Lydia, one annuity or yearly sum of two thousand five hundred dollars, commencing from the day of my decease, and to be paid to her out of any moneys of my estate in quarterly payments, for and during all the term of her natural life. Moreover, I give to her, my said wife, all my household goods, kitchen furniture, horses, carriages, plate and all other articles and things purchased for family use.

Item--I give and devise unto my said brother, my interest in the Cherry Hill estate, to hold to him for and during all the term of his natural life. The mortgages on that property, I direct shall be paid by my estate.

Item--I do hereby authorise my executors, to purchase any real estate which I hold as security for any debt or debts, for the purpose of securing such debts, and to take the conveyances for the same in their own names, and to sell, rent, or convey the same whenever they may see fit, for the benefit of my estate. And I do hereby authorise my said executors, or the survivor of them, to make any disposition they may think best of my brewery at Cincinnati, in the state of Ohio, and the land belonging to the same, either to continue the business there, or to exchange the said estate for other property, or for any securities, and to sell, dispose and convey the premises taken in exchange.

Item--I do hereby authorise and empower my said executors to sell and dispose of all my real estate, whenever they may see fit, at and for the best price that can be reasonably obtained for the same, and upon receipt of the purchase-money or security therefor, by good and sufficient deeds, conveyances and assurances in the law, to grant and convey the same unto the purchaser or purchasers thereof, his, her or their heirs and assigns, in fee; and until such sales, that the same shall be and remain in the management of my said executors. And it is my desire that my said executors shall collect in all my outstanding debts, as soon as the same can be conviently done, and from thence, and from the moneys arising from my real estate, and from any other sources of my estate, that they pay and satisfy the debts due and owing by me; and until such payments can be made, that they in their capacity as my executors, may give or endorse any note or notes from time to time, in renewal of notes given or endorsed by me, until the debts due thereon shall be fully paid and satisfied; which notes so to be given or endorsed by my said executors, or the survivor of them, shall be as fully binding on my estate, as those originally given by myself. And forasmuch as a precipitate sale of my stock in trade would be highly disadvantageous to my estate, and being satisfied that my business might be carried on to advantage, I do therefore authorise and empower my said executors, and the survivor of them, either by themselves, or by persons by them to be engaged for that purpose, to carry on and continue my business, at the risk and for the benefit of my estate, so long as they may see fit, upon the same plan as I have conducted the same, which will appear from my books of account, to the end and with a view that any or either of my sons, in the sole discretion of my said executors, or the survivor of them, may succeed to the business, and take the establishment on his or their arriving at the age of twenty-one years, on such terms and conditions as my said executors may see fit.

And it is my mind and will that so long as my executors, or the survivor of them, shall continue to carry on the said business, that the store and premises now occupied by me in High street, shall and may be held and occupied for that purpose.

Item--I direct my executors that the moneys which shall come to their hands from the debt due to me by my brother-in-law Redwood Fisher, shall be applied by them, immediately on receipt thereof, one-third part thereof in the purchase from the Life Insurance Company, a sum of money, payable to his son William R. Fisher, if and when he shall arrive at the age of twenty-five years; another third in the purchase from the same company of a sum payable to his son Samuel G. Fisher, if and when he shall arrive at the age of twenty-five years; and the remaining third thereof, in the purchase from the said company of a sum to be paid to his son Miers Fisher, if and when he shall arrive at the age of twenty-five years.

And all the rest, residue and remainder of all my estate, whatsoever and wheresoever, I give, devise, and bequeath unto all my children, their heirs, executors, administrators and assigns, to be equally divided between them, part and share alike, when they respectively shall arrive at full age. And I do hereby nominate and appoint my said wife, and my said brother Joseph, and my said brother-in-law Redwood Fisher, guardians of the persons and estate of my said children. Provided always, that whatever I have hereinbefore given to my said wife, is in lieu and full satisfaction of her dower and thirds of and in my estate. Lastly, I do hereby revoke all wills and testaments, by me at any time heretofore made and published, and declare this only to be and contain my last will and testament."

And that the defendants took upon themselves the burthen and execution of the said will, and sold and disposed of all the real estate of the said decedent, and from the time of the decease of the decedent until such sales, possessed themselves of the said real estate, and managed the same; and that the said executors carried on and continued the business of the said decedent, and so have carried on and continued the business of the said decedent, from the time of the decease of said decedent, down to the suing out of the writ, and this he is ready to verify. Whereupon he prays judgment and his damages as aforesaid," & c.

To this replication the defendants demurred specially, setting forth as causes of demurrer, " that the same is double; that there are two several replications: that the same is argumentative, uncertain, and departs from the declaration; and also that the same is in other respects uncertain, informal and insufficient," & c.

The District Court, after argument, rendered judgment on the demurrer for the defendants. The opinion of that Court, which was delivered by STROUD, J., was as follows:

" Where a testator gives real or personal estate, or both, in trust for the payment of his debts, the statute of limitations is no bar in equity against creditors, whose claims are in force at the testator's death, and who seek to avail themselves of the benefit of the trust. This was decided by Lord REDESDALE, in reference to a devise of real estate; Fergus v. Gore, (1 Sch. & Lef. 107; ) and by Lord ELDON in Hughes v. Wynne, (1 Turn. & Russell, 307, 1 Chitt. Eq. Dig. 663; ) and by Lord BROUGHAM, where the bequest was restricted to personal estate, Jones v. Scott, (1 Russ. & Mylne, 255, 4 Eng. Chan. Reps. 413); and in Rendell v. Carpenter, (2 Younge & Jarvis, 484; 1 Chitty Eq. Dig. [[[[663]) a similar decision was made in regard to a trust comprising both real and personal property.

Trusts of this description fall within the rule of Chancellor KENT in Kane v. Bloodgood, (7 Johns. C. R. 111 114,) recognised in Wisner v. Barnet, (4 Wash. C. C. R. 63...