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in the payment of debts brought in and classed within the period of limitation, as well as to prevent executors and administrators from unnecessarily keeping back the remainder of the estate from legatees and distributees, the statute declares that every "executor or administrator shall make final settlement of his administration within three years from the date of his letters," etc. (Sec. 204.) And though, in many instances, it may be impracticable for executors and administrators to make final settlement within three years, yet this section is in harmony with the other provisions of the statute, and constitutes an important feature in the administration system contemplated by it.

Looking at all of the provisions of the statute together, and considering the policy manifestly contemplated by it, we think the conclusion is unavoidable, that demands due the State, or in which she is interested, as in this case, are, by clear and necessary implication, embraced by the statute, and, like other demands, barred if not brought forward within the period of limitation fixed by the act.

If the State, through the negligence of her officers, may hold back her demand for more than two years from the grant of letters, and then bring it forward, and compel the executor or administrator to allow and pay it, she may not only delay to present it for five years, as in the case before us, but the delay may extend to any number of years. In the meantime, how is the executor or administrator to pay the demands presented and allowed in time; to pay legacies and distributive shares out of the assets remaining; and make a final settlement of the estate within three years from the grant of letters, as required by the statute? A construction of the statute that would admit a demand due the State after the expiration of the period of limitation, would be at war with the manifest policy of the statute, and hinder, delay and disturb the due course of administration.

In the general statute of limitations, from considerations of public policy, there is an implied reservation in favor of the

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State (where she is not named), as there are express exceptions in favor of women laboring under the legal disability of coverture, infants and insane persons, who are supposed to be incapable of attending to their interests, etc., and there are good reasons why these reservations should be made.

But the administration statute, contemplating, as we have seen, a speedy settlement of all demands, and a distribution of the remainder of the estate to legatees and distributees, within a prescribed time after grant of letters, in fixing the period in which demands are to be presented, has, consistently with the policy of the act, made no reservation in favor of married. women, infants, insane persons, etc., and the courts can make none. The policy of the statute is, that the course of administration and distribution shall not be prolonged and confused by the coming in of claims out of time; and there is no good reason why the policy which excludes demands due to the helpless persons above mentioned, if not presented within the time prescribed by the statute, should not also bar the claims of the State exhibited for allowance out of time.

In Mississippi, where the statute limiting the time for exhibiting demands against the estates of deceased persons, is treated as a mere statute of limitations, (5 S. & M. 651; 7 Ib. 441), it has been held that the statute does not run against the State. Parmilee vs. McNutt, Gov., etc., 4 1 S. & M. 183.

So in United States vs. Hoar, 2 Mason 311, Judge STORY appear to have treated the statute of Massachusett, limiting suits against executors and administrators, as of the nature of the general statute of limitations, and applied the old English maxim, nullum tempus occurrit regi, etc.

But in The State vs. Crutcher ad., 2 Swan 504, in a well considered case by Mr. Justice MCKINNEY, the distinction between the general statute of limitations and the statute of non-claim of Tennessee, is pointed out, and it is held, upon a construction of that statute, and other statutes construed in connection with it, that demands due the State are barred by the statute of non-claim, if not presented within the time limited, etc.

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Our conclusion is, that the decree against Mrs. Hill must be reversed, and a decree entered here, and certified to the court below, discharging her from the suit.

Mr. Justice FAIRCHILD did not sit in this case.

TURNBULL VS. TURNBULL.

Where the evidence, in a bill for divorce by the husband, fully establishes the fact of adultery on the part of the wife, and that, afterwards, and with a full knowledge of her guilt, he received and kept her as his wife, the law will imply that he remitted her fault and forgave her the violation of her marriage vow-the doctrine of condonation as acted upon in all English and American courts, where divorces are granted, not being destroyed by the statute upon divorces.

Appeal from Pulaski Chancery Court.

Hon. URIAH M. ROSE, Chancellor.

GARLAND & RANDOLPH, for the appellant.

Mr. Justice COMPTON delivered the opinion of the Court. Having carefully examined this case, and found no error in the record, we affirm the decree of the court below, and direct that the opinion of the chancellor be reported as expressing, fully, the views of this court.

23 615

73 287

Turnbull vs. Turnbull.

[DECEMBER

CHANCELLOR'S OPINION.

The plaintiff seeks to obtain a divorce from the defendant on account of adultery, which he says was committed by her with a person named Thomas Connor, at a public hotel called the Anthony House, in the city of Little Rock, during the month of November, 1859.

The defendant answered the bill; positively denied the fact of adultery as charged, and asserted that she had, at all times, demeaned herself as a true and faithful wife of the plaintiff; and that after the time that the plaintiff says in his bill that he became convinced of her infidelity, he continued to live with her on the same terms of confidence as formerly, and to treat her with the same kindness.

It appears from the bill and from the evidence, that at the time of the alleged commission of the act of adultery, the plaintiff was the manager of a theatre in Little Rock, and that. the adulterer was an actor in his employment.

The evidence also shows that the defendant, for two or three years before the time of her alleged offence, was a very light and imprudent woman, very fond of the society of other men besides her husband, and very unrestrained in her manners at all times. That at Hot Springs in 1858 and 1859, she was so indiscreet as to attract the attention of visitors: that she was in the company of Connor on every opportunity afforded by the absence of her husband: that on one occasion she expressed herself in the presence of more than one person as having an affection for Connor, and said that she did not care who knew it, and that on being remonstrated with, and told that she was acting badly, she said that she did not care: that during the month of November, 1859, the plaintiff went to Memphis, leaving his wife at the Anthony House, where they were then boarding; that during the absence of the plaintiff, Connor was in the room of the defendant every day, and that one day she was seen in the room of an actress named, or called, Oceana, with Connor, and that while there she used very inde

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cent and unbecoming familiarities with him: that while the plaintiff was gone to Memphis, Connor was seen to go into defendant's room at about twelve or one o'clock at night, and that he did not come out until after 8 o'clock next morning, until which time the witness, who was employed as watchman at the hotel, kept guard, that about six or seven o'clock next morning after Connor went into the room, the little sister of the defendant and another girl went to the door of the room and tried to get in, but could not; that soon after the plaintiff's return from Memphis, Connor came in the night into the hall upon which the defendant's room opened, turned down the lights in the hall, examined the premises as if to see whether any one was about, and then knocked at defendant's door, went in, remained ten or fifteen minutes, and then came out, and that the plaintiff was not in the house at that time. It is also proved that these facts, which transpired at the Anthony House, were made known to the plaintiff on or about the 15th day of December, 1859, and that soon afterwards the plaintiff shot Connor in his wife's room.

The fact that Connor was seen to go into the defendant's room at night, was testified to by a witness whose name is McDaniels, and who was the watchman above mentioned. But of the intimacy which existed between her and Connor, of her language wherein she expressed her preference for him, and of the scene in Oceana's room, we have the evidence of other witnesses. There is something in the evidence of the sister of the defendant, which militates against that of the witness McDaniel, but not enough, it seems to me, to overthrow it, or to make it proper to discard it. But if the evidence of McDaniel were left out of the case, I should still be sufficiently convinced that the defendant has been guilty of the sin of adultery, as charged in the bill. The act of adultery can rarely be proved by positive evidence. The guilty parties, through fear and through shame, generally use all their ingenuity to keep it secret, and if it be proved at all, it is almost always indirectly, and by evidence of various circumstances, each of which may

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