TERM, 1861.]

Ashby et al. vs. Johnston et al.

ASHBY ET AL. VS. JOHNSTON ET AL.

The failure of the obligee in a bond to probate the claim against the estate of the deceased obligor, whereby the claim is barred by the statute of non-claim, does not discharge the sureties in the bond.

Appeal from Clark Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

GARLAND & RANDOLPH, for the appellants.

We insist that the plea was good, and that the demurrer to it should have been overruled, and we base ourselves upon two plain propositions of law: first, that by reason of the facts stated in the plea the estate of Johnston was forever discharged from liability to the appellees on account of the cause of action stated in the declaration. Sec 99, ch. 4, Gould's Dig.; Walker as ad. vs. Byers, 14 Ark. 246; Bennett et al. vs. Dawson, 15 Ark. 412; and secondly, that a discharge of Johnston's estate was a discharge of the appellees also. State Bank vs. Fowler et al., 21 Ark.; Rathbone vs. Warren, 10 Johns. R. 587.

FLANAGIN, for appellees.

The mere delay to sue the principal, however long, does not, under the general statute of limitations discharge the surety. 13 Miss. R. 125; 5 Cal. R. 173; 3 Cous. 446; 4 Eng. 185; nor though the principal become insolvent, 14 Miss. 473; nor though the principal die, and the claim, for want of prosecution against his estate, become barred. 8 Ala. 948; 4 Sm. & M. 165; 7 Ib. 487.

Ashby et al. vs, Johnston et al.

[JANUARY

Mr. Chief Justice ENGLISH delivered the opinion of the Court. This was an action on a guardian's bond.

The suit was brought by Albert G. and George W. Johnston, (survivors of Philip H. Johnston, deceased), for whose benefit the bond was executed, whilst they were minors, against John W. Ashby and Thomas A. Heard, the sureties in the bond, the principal, (Albert G. Johnston), and guardian of the plaintiffs, having departed this life before suit.

The defendants interposed a plea in bar, alleging, in substance, that after the accrual of the cause of action, the prin cipal in the bond died, leaving a will, and his executors declining to qualify, letters of administration, with the will annexed, were granted by the probate court to one Singleton; and that the plaintiffs did not, at any time within two years after grant of letters, present their demand, properly authenticated, to the administrator for allowance, etc., whereby the demand against the estate was barred, and the defendants discharged.

A demurrer was sustained to the plea, the defendants rested, final judgment was given against them, an inquest of damages, and they appealed.

The appellants insist that the cause of action upon the bond against the principal being barred by the statute of non-claim, by reason of the failure of the plaintiff's to probate the claim against his estate, within the time prescribed by the statutę, they, as sureties in the bond, are also discharged; and they rely on the case of State Bank vs. Fowler et al., ante.

But the case cited does not sustain the defence set up in the plea. There, on scire facias to revive a judgment, Fowler, the principal, was discharged, on plea of payment, and the Bank afterwards undertook to open the judgment, by bill in chancery, on the ground that the plea was false, and failing as to Fowler, and the judgment remaining in force as to him, this court held that Pike, the surety, was also discharged; that when the principal is discharged on a plea not personal to himself, as upon a plea of payment, etc., the surety was also discharged,

TERM, 1861.]

Ashby et al. vs. Johnston et al.

because, if he paid the debt, he had no remedy over against the principal.

But it is well settled that where, from mere omission of the obligee to probate the claim in time, the cause of action is barred against the estate of the principal, in the hands of his executor or administrator, by the statute of non-claim, this of itself, does not discharge the sureties in the bond, the statute being, in its nature, but a statute of limitation. See Johnson vs. Planters Bank, 4 Sm. & M. 171; Cohen et al. vs. Com. of S. F.7 lb. 441; Marshall vs. Hudson, 9 Yerg. 63; McBroom et al. vs. The Governor, 6 Porter 33; Cawthorn vs. Weisinger, 6 Ala.

716.

The appellants might have paid the demand, and caused the claim to be allowed against the estate of the principal in their favor, or they might have compelled the appellees to probate the claim, within the time prescribed by the statute. Ib.

It has been held that where sureties are compelled to pay the debt for the principal after the administration upon his estate has been closed, they have the right to subject his estate in the hands of his legatees or distributees to the satisfaction of the amount paid by them. But this question is not before us

now.

The judgment must be affirmed.

Gross frauds might be practiced upon an estate, and it is against the policy of the statute to allow a person, especially a stranger, to pay unauthenticated claims against the estate, and make out an account for the money so paid, and procure its allowance, against the objection of the administrator, by the testimony of the original claimant; but where this was done by the widow of the deceased-there being then no administration-and there is reason to believe she acted in good faith, and that the claims were just, no injustice could have been done the estate.

Appeal from Pope Circuit Court.

Hon. JOHN J. CLENDENIN, Circuit Judge.

HOLLWELL, for the appellant.

The allowance of the account in this case for the several claims paid by the appellee, on the testimony of the original claimant, was not only in violation of the well settled rules of evidence, but also in face of the letter of the statute. Gould's Dig., secs. 102, 103, chap. 4; 1 Greenl. Ev., sec. 326, p. 440; 1 Gilb. Ev., 223, 224.

This court has invariably held a strict compliance with the statute in all proceedings for the collection of claims against the estates of deceased persons, must in all cases be adhered to. Lafferty ad. vs. Lafferty, 5 Eng, 268; Beirne vs. Imboden, 14 Ark. 237; 15 Ark. 419.

Mr. Chief Justice ENGLISH delivered the opinion of the Court. Samuel Norris died intestate in Pope county, sometime in the year 1856, leaving his wife, Susan Norris, surviving him.

After the death of her husband, Mrs. Norris paid several

claims against his estate, amounting in the aggregate to $104 85.

Afterwards, in the year 1857, Brearly took out letters of administration upon the estate, and Mrs. Norris made out an account for the claims paid by her, presented it to the administrator, duly authenticated by her affidavit, for allowance, and he rejected it. On application to the Probate Court, the amount above stated was allowed and classed against the estate, in her favor, and the administrator, who contested the claim, excepted and appealed to the Circuit Court, where, upon inspection of the record, the judgment of the Probate Court was affirmed, and the administrator appealed to this court.

On the trial in the Probate Court, the persons to whom Mrs. Norris had paid the claims were introduced as witnesses, and each one of them testified that Norris was indebted to him, at the time of his death, in the sum stated in Mrs. Norris' account, and that she paid the debt after the death of her husband.

The administrator did not think proper to interrogate the witnesses as to the character of their claims, how they were evidenced, or in what manner they were authenticated when Mrs. Norris paid them.

There is no indication in the record that the claims paid by Mrs. Norris were not just, or that she acted otherwise than in good faith in paying them.

It is probable that Mrs. Norris intended paying the debts of her husband, and taking care of his estate, without the expense of administration, an economical policy favored by sec. 5, chap. 4, Gould's Dig., and that she paid the debts in question in pursuance of such intention, but that afterwards, for some cause not disclosed in the record, letters of administration were taken out by Brearly.

The probate judge, who tried the case, and allowed her claim, doubtless knew more of the matter than is disclosed in the record before us.

It is true, as insisted by the counsel for appellant, that the