Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση
[blocks in formation]

said that the reason is equally, if not more, cogent in a representative government, where the power of the people is delegated to others, and must be exercised by these if exercised at all; and accordingly the principle is held to have been transferred to the sovereign people of this country, when they succeeded to the rights of the king of Great Britain, and formed independent governments within the respective States. Levasser vs. Washburn, 11 Grat. 577; Kennedy's Ex. vs. Townley's Heirs, 16 Ala. 247; Commonwealth vs. Baldwin, 1 Watts 54; State vs. Thompson, use, etc., 5 Eng. R. 67; McNamee vs. United States, 6 Eng. 148.

And though this is sometimes called a prerogative right, it is in fact nothing more than a reservation, or exception, introduced for the public benefit, and equally applicable to all governments. United States vs. Hoar, 2 Mason 314.

“ But, independently of any doctrine founded on the notion of prerogative, (says Judge Story in the case last cited,) the same construction of statutes of this sort ought to prevail, founded upon the legislative intention. Where the government is not expressly, or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed, or the language used, that the government itself was in contemplation of the Legislature, before a court of law would be authorized to put such an interpretation upon any statute. In general, acts of the Legislature are meant to regulate and direct the acts and rights of citizens; and, in most cases, the reasoning applicable to them applies with very different, and often contrary force to the government. It appears to me, therefore, to be a safe rule, founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act.”

Conceding it to be well established that the general statute of limitations does not run against the State, we will apply the rule for the construction of statutes as stated by Judge STORY, to the statute of non-claim, and other provisions of our admini

[blocks in formation]

stration acts, to be taken in connnection with it, and see whether demands due to the State are not, by clear and necessary implication, embraced.

The language of the statute is broad and comprehensive. It declares that “all demands, not exhibited to the executor or administrator, as required by this act, before the end of two years from the granting of letters, shall be forever barred.' Dig., chap. 4, sec. 98. It embraces, as we have above shown, equitable as well as legal demande. Claims due to corporations, to artificial as well as natural persons, are expressly included. (Sec. 104.) No exceptions are made in favor of married women, infants, persons insane, imprisoned, or beyond seas. (1 Eng. R. 14.) The demands of all, alike, are forever barred, as against the executor or administrator, if not brought forward within the time limited by the act. The general statute of limitations applies to the remedy only, and the debt, after it is barred, may be revived by a new promise, part payment, etc., but the statute of non-claim applies to the right, and when the claim is barred by it, it is forever barred. No promise of the executor or administrator, made in any form, can revive the claim. It is not within their power to allow a demand after the expiration of the two years. The policy of the statute forbids it. The statute need not be pleaded, but the executor or administrator may insist on the bar, at any time before final judgment. 14 Ark. 240.

Upon the death of a person, his entire estate (subject to dower and specific liens, etc. 14 Ark. 246; 18 Ib. 414; 22 15. 535), becomes assets in the hands of his executor or administrator, first, for the payment of all demands brought forward, in the manner prescribed by the statute, within two years from the grant of letters, and then the remainder, if any, to be turned over to the legatees or distributees; who are kept waiting, without even an allowance for maintenance, until the expiration of the two years, unless the Probate Court, upon refunding bonds executed by them, shall sooner order distribution, etc. (Secs. 149, 150). And to avoid unnecessary delay

[blocks in formation]

that every

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

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

[blocks in formation]

none.

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

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. f. M. 651; 7 Ib. 441), it has been held that the statute does not run against the State. Parmilee vs. McNutt, Gov., etc., 41 S. f. M. 183.

So in United States vs. Hoar, 2 Mason 311, Judge STORY appears 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.

[blocks in formation]

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.

23 615 73 287

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.

« ΠροηγούμενηΣυνέχεια »