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$3,091 24, in money, and $1,837 87, in Arkansas bank paper or bonds, for which a decree was rendered against appellant, as executrix. A decree was also given against her for the sum of $2,365, in money, reported by another special master to whom the matter was referred, as being Hill's portion of the value of the Ferguson negroes, which were lost to the trust, the chancellor held, by the negligence of the Trustees.
It appears that Wm. D. Ferguson had made a mortgage to the bank upon lands and negroes, to secure debts due from him to the bank; the mortgage had been foreclosed, the property sold and purchased by the Trustees. On the 28th May, 1847, the Board of Trustees, (present, Biscoe, Hill, Faulkner and Walters,) made an order, upon application of Ferguson, that when he paid or secured $5,500 00, the value fixed upon the slaves, they would reconvey them to him. In the meantime the slaves were to remain in his possession, to be employed, fed, clothed, etc., by him, on condition that he did not remove them from the State. It seems that no further step was taken, by the Trustees, about the matter during their continuance in office. That Ferguson failed to secure or pay the value of the slaves, and that some time or other, whether before or after the death of Hill does not appear, ran them off to Tennessee, and they were lost to the trust.
It was agreed by the parties that there had been no authentication and presentation of the demands against Hill's estate, to his executrix, as required by the administration laws; and that if the statute of non-claim was applicable to this suit, the appellant should have been discharged.
The bill sought to recover against Hill's estate mere money demands. Upon his death, whatever trust property there may have been in his possession, passed, it must be supposed, in the absence of any showing to the contrary, into the hands of his survivors and successors in office. The decree against bis executrix was for money demands, one of them arising upon a re-statement of his book account, and the other upon a valuation of trust property, supposed to have been lost to the trust, by the negligence of himself and his co-trustees, in leaving it
in the possession of Ferguson without security. These demands, if just claims against his estate at all, as we must suppose they were, existed at the time of his death, and were as capable of being asserted in a sworn bill brought within two years after the grant of letters testamentary to his executrix, as they were five years after by the bill then filed in this case.
In Walker as ad. vs. Byers, 14 Ark. 252, the court, by Mr. Justice Soort, said: “In this system, [meaning our administration system, upon which he was commenting,] two capital objects seem plainly in view from the various provisions for their attainment; first, that the estate of every deceased person, after death, shall immediately pass to the custody of the law, to be administered for the benefit of creditors, and after the satisfaction of all claims against it, that shall be presented within two years after the grant of letters testamentary, or administration, the residue shall in the next place be passed to the heir or distributee, quit of all claims against it which the law will allow of, as against an executor or administrator."
And after remarking upon the jurisdiction of the probate court, and its mode of dealing with estates, the Judge continues thus: “In such a system, with a tribunal thus constituted, as its effective instrument, we think it clear that the claims and demands which the statute contemplates shall be exhibited to the executor or administrator in the manner provided by the statute, before the end of two years from the granting of letters, on pain of being forever barred, are all claims capable of being asserted in any court of justice, either of law or equity, existing at the time of the death of the deceased, or coming into existence at any time after the death, and before the expiration of two years—including, of course, all claims, or demands, running to certain maturity, although not yet payable, to be adjusted presently, apon equitable principles of discount, according to the rate of interest when matured, or to be provided for at the day of maturity without discount, and excluding such claims only as might be inchoate and contingent, like that in the case of Burton vs. Lockhart, (4 Eng. R. 412,) and like dor
mant warranties, broken by eviction after the expiration of the two years.
“ In excluding such possible claims, (continues the Judge,) indicated in the latter class, the statute does not destroy them, only as against any administrator, or executor, and in preferring to them all claims that exist at the death, or come into existence at any time before the expiration of the two years, and therefore leaves them to be asserted against the heir or distributee, as such, as a superior equity to his, in the assets that may have descended, or been distributed to him after the estate of a deceased person has been administered for all the purposes contemplated by law. Whereas, every species of claim or demand, either legal or equitable, which comes within the scope of the administration, as we have defined, will be forever barred, as well against the heir or distributee, as the executor or administrator, if not exhibited in the manner provided by the statute, by the end of two years."
“From this exposition of our administration system, etc., etc., etc., it results that where one dies and leaves an estate, every claim or demand against it, for which it is liable, when in the course of administration, in whatever manner asserted, must be authenticated by the affidavit of the claimant, as provided by the statute, because in no other way can a claim be exhibited in accordance with the statute, to prevent it being forever barred.”
After noticing some exceptions to the rule as thus stated, which are unlike the case now before us, and showing that the statute of non-claim, and not the general statute of limitations is applicable to demands against the estates of deceased persons, the Judge says: “In the light of these views, then, it is clear that the decree in this case cannot be sustained upon the cross-bill of Byers, because there is no pretence either that the cross-bill was sworn to, or that it was filed, until long after the expiration of two years from the grant of letters of administration to Walker.”
The principles announced in this opinion have been repeat
edly applied and confirmed in subsequent cases, and may be regarded as settled. See Bennett et al. vs. Dawson, 18 Ark. 336; Oswalt vs. Moore, 19 Ark. 225; State Bank us. Walker ad. 14 Ark. 236; Bennett et al. vs. Dawson et al., 15 Ark. 413; Biscoe et al. vs. Madden as ad., 17 Ark. 533.
It is insisted for the State, that the statute of non-claim does not apply in this case, first, because Hill was a trustee, and that the trust was direct and continuing; and, second, that the statute of non-claim, like the general statute of limitations, does not run against the State.
In regard to the first objection, it may be remarked that it is true that Hill' was a direct trustee, under the deed of assignment, and that it was, what is denominated in the books, a continuing trust. But upon his death, he ceased to be a trustee, and, as to him, the trust no longer continued (Halliburton ad. is. Fletcher ad. et al., 22 Ark. 653). His indebtedness to the trust became a demand against his estate, to be authenticated, allowed, classed and paid out of the assets which came into the hands of his executrix, as other demands, unless the State, having an interest in the trust, was privileged to file a bill at any time to enforce the payment of the demand, by the executrix, regardless of the provisions of the administration statute prescribing the mode of authenticating, and limiting the time for presenting claims against executors and administrators; and this brings us to the consideration of the second and more disicult objection:
Does the statute of non-claim apply to the State?
It may be remarked, that the demand against Hill's estate, on account of his indebtedness to the trust, was not one directly due to the State, or payable into her treasury. She is, however, deeply interested in the effects appertaining to the trust. To enable the Real Estate Bank, a private corporation, to raise a banking capital, the State issued her bonds to the bank, on the faith of mortgages made by the stockholders, upon lands, to secure the payment of the bonds, etc.; the bonets. XHUVU endorsed by the bank, put into the market and soly. After
wards, the bank being in failing circumstances, made the deed of assignment to Trustees for the benefit of its creditors, etc. The bill, in this case, was filed by the State, on behalf of herself and other creditors, to compel the Trustees, and the execu. tors and administrators of such of them as were deceased, to account, etc. Any stockholder, bondholder, or other creditor of the bank, or person interested in the trust, had the same right to file the bill that the State had, and a bill to compel the executrix of Hill to account, and pay over money due from him to the trust, might have been filed within two years from the grant of letters to her, as well as after the expiration of five years; which time had elapsed when the present bill was filed.
If this suit had been brought by any other creditor of the bank than the State, we think it clear that it would have been barred by the statute of non-claim, so far as the demand against the executrix of Hill is concerned. Why then should the State be permitted to come in, out of time, and compel the executrix to pay a demand lost to all other creditors by their negligence and delay? The answer for the State is, that the statute of non-claim does not apply to her—that time does not run against the State.
It is true that it is an old maxim of the English law, that no time runs against the crown, or, as it is expressed by the early law writers, nullum tempus occurrit regi. Broom's Legal Maxims 46; 11 Coke 68, 74. And the rule founded upon it is, that the king is not bound by any statute of limitations unless there be an express provision to that effect. Sedgwick on Stat., etc., 105. The reason sometimes assigned why no laches shall be imputed to the king, is, that he is continually busied for the public good, and has not leisure to assert his right within the period limited to subjects. Coke Lit. 90; 1 Black. 247. A bet. ter reason is, the great public policy of preserving public rights and property from damage and loss through the negligence of public officers. United States vs. Hoar, 2 Mason 311; The People vs. Gilbert, 18 John. 227; 9 Wheat. 720, 735; Levasser vs. Washburn, 11 Grat. 576; Angel on Lim. 35. And it has been