The plaintiff seeks to recover of the defendants, the devisees of John Fassett, the amount of two promissory notes for $300 and $268.15, respectively, dated June 2d 1878, and August 5th, 1878, given for money loaned.
The notes were signed by "John and M.A. Fassett," the latter being the son of John. Milan A. Fassett died insolvent and it is admitted that the consideration of the notes was a loan to John Fassett.
The trial court found that John Fassett died on or about October 1st, 1884; that the last payments of interest on the notes in his lifetime were, on the $300 note, June 2d 1884, and on the note for $268.15, August 5th, 1884; that the assets of John Fassett were not sufficient to pay plaintiff's debt, and that he left no real estate which descended to his *Page 65 heirs; that he devised to the defendants, his son, his daughter and his daughter-in-law, the fee of his farm valued at $4,680, subject to a life estate in his wife; that the widow died in February, 1888.
The defendants and appellants urge two points on this appeal, the Statute of Limitations and the incompetency of the evidence by which the last interest payments in the lifetime of John Fassett were proved.
As to the latter point we are of opinion that the payments were properly established.
The indorsements of the payments of interest were admitted by defendants on the trial, and the legal presumptions which followed this admission, taken in connection with the other evidence, were quite sufficient to sustain plaintiff's burden of proof.
The last indorsement of interest on the note of $268.15, being fixed as August 5th, 1884, it is admitted by the learned counsel for defendants that the six years Statute of Limitations, suspended in its running for eighteen months, by the death of John Fassett, had not cut off the right to sue on this note for the reason that the letters testamentary were not issued at least six months before the expiration of the seven years and six months during which this action might have been brought, and, consequently, one year after letters were issued is not a part of the time limited for the commencement of this action. (Code of Civil Procedure, § 403.) It, therefore, follows that, as to the note of $268.15, this action was seasonably begun.
It is admitted that this action was not commenced until seven years, eight months and eight days after the last indorsement of interest on the $300 note, June 2d 1884, and the important question presented by this appeal is whether the Statute of Limitations, pleaded by the devisees of John Fassett, is a good defense.
While the amount involved in this litigation is not large the question presented is of great importance, far reaching in its effects, and not free from difficulties in view of the conflicting *Page 66 decisions as to the application of the Statute of Limitations to the various remedies which may be invoked by creditors, legatees and legal representatives to reach the estates of the dead for the purpose of paying debts and legacies.
In England and many of the states of the Union the legal representative is not compellable either in law or equity to take advantage of the Statute of Limitations against a claim otherwise well founded (Norton v. Frecker, 1 Atk. 524; Hill v.Walker, 4 K. J. 166; Wood on Lim. of Ac. [2nd ed., 1893], pg. 474 et seq.), but a contrary rule obtains in this State, and a debt barred by the statute is no debt as to the executors and the legatee, heir and devisee may plead the statute whether the legal representative does or not.
The learned General Term held that this was not a mere action to recover upon the notes and within the six years' statute, but an action within the ten years' limitation.
We are unable to agree with this conclusion, and are of the opinion if the recovery below is to be sustained it must be upon the theory that the six years' statute applies to the note in question, but had not run against it at the time this action was commenced.
In the view we take of the law governing this case, the facts do not present a situation where there is a concurrent jurisdiction over the same matter in law and equity, and the consequent presentation of the question whether the outlawry of the legal action carries with it the equitable remedy.
This action is brought under the provisions of the Code of Civil Procedure. Section 1843 reads as follows: "The heirs of an intestate, and the heirs and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by the decedent."
Section 1844 provides:
"But an action to enforce a liability declared in the last *Page 67 section cannot be maintained except in one of the following cases:
"1. Where three years have elapsed since the death of the decedent, and no letters testamentary or letters of administration upon his estate have been granted within the state.
"2. Where three years have elapsed since letters testamentary or letters of administration upon his estate were granted within the state."
This action was begun February 10th, 1892, between four and five years after the cause of action arose in favor of plaintiff, under subdivision 1 of section 1844, providing for the lapse of three years and the failure to take out letters.
A preliminary point is taken by appellant's counsel that, as letters of administration with the will annexed were issued January 20th, 1892, some twenty days before this action was commenced, it must be regarded as prematurely begun for the reason that the granting of letters rendered it impossible for plaintiff to bring this action until the lapse of three years from the date of their issue, under section 1844, subdivision 2, already quoted.
We do not regard this point as well taken. The policy of the Code of Civil Procedure is to give opportunity, where the administration of an estate is promptly proceeded with, for the parties interested to invoke the general and less expensive remedy of the sale of real estate within three years of the granting of letters (§ 2750), and the special remedy against the heir and devisee is suspended during three years from the testator's death for that purpose.
If this opportunity is allowed to pass unimproved, and a cause of action arises against the heir or devisee by lapse of time, the subsequent granting of letters will not have the effect to further suspend the action against the heir or devisee for three years from their issue.
We are brought, therefore, to the consideration of the principal question in this case, whether the six years' statute, with its suspension of eighteen months by reason of testator's death, has cut off the legal remedy on the note for $300 *Page 68
It certainly has done so unless by provision of law some additional suspension of the running of the statute has preserved the right of action.
In section 1844, subdivision 1, of the Code of Civil Procedure, already quoted, we have a statute that in positive terms prohibits a creditor from commencing his action against the heir or devisee until three years have elapsed since the death of the decedent. Turning to section 406 of the Code of Civil Procedure, which is found in the title containing general provisions relating to the chapter on limitations of the time of enforcing a civil remedy, we find this provision:
"Where the commencement of an action has been stayed by injunction, or order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action."
We think the provision of section 1844, subdivision 1, is a statutory prohibition under section 406, for a period of three years, and that this time must be added to the six years of the statute, thus giving the plaintiff nine years in which to begin this action.
That this was the obvious intent of the legislature and the clear meaning of those two sections of the Code, when read together is readily demonstrated.
Where the statute begins to run in the lifetime of the testator it does not cease to run between death and the issuing of letters except by force of some positive legal provision. (Sanford v.Sanford, 62 N.Y. 553.)
We may suppose the case of a creditor where the six years' statute began to run against his claim in the lifetime of the debtor and the debt was within ten days of outlawry at the time of the debtor's death.
By virtue of section 403 of the Code of Civil Procedure the death of the debtor would suspend the running of the additional ten days of the statute for eighteen months only, and thus it becomes apparent that the creditor in this supposed case could not pursue his remedy against a devisee under section 1844, subdivision *Page 69 1 of the Code, if it be held that the three years which must elapse under that statute after the death of the decedent before the heir or devisee can be sued, do not suspend the running of the statute, as in that event the claim would be cut off before the three years had expired.
It is very clear to us that the legislature could not have contemplated any such discriminating and unjust result against a creditor in this situation, and that the construction we have already suggested is the only proper one under the circumstances.
The application of this rule of statutory prohibition under section 406 of the Code has been hitherto applied by this court in order to save the running of the statute. In Mead v.Jenkins (95 N.Y. 31) where, in proceedings by a creditor for the sale of the real estate of a deceased person, the Statute of Limitations was set up as a bar to the creditor's claim, and the proceedings, under the then existing law, could not be commenced until after the accounting of the executors or administrators, it was held that the time between the death of the decedent and the accounting should not be included as a part of the time limited as it was a statutory prohibition under section 406 of the Code.
It was sought in the case just cited to also raise the point we are now considering, but this court held that inasmuch as there was error in the surrogate's decision on the ground already stated it was not necessary to consider the question.
In Brehm v. Mayor, etc., of the City of New York (104 N.Y. 186), section 406 of the Code was again construed. This was an action brought to recover money paid to discharge the lien of an assessment, which, after the payment, had been vacated by order of the Supreme Court.
The city of New York, among other defenses, interposed that of the Statute of Limitations. Judge RAPALLO says at page 191: "On the 17th of November, 1877, at which time the right of action was not barred, the plaintiff presented her claim to the comptroller. She would at that time have been entitled to commence her action, but for section 105 of the *Page 70 charter of 1873, which required her to wait until the comptroller had neglected for thirty days after such presentation to pay her claim. That section in express terms prohibited her from maintaining any action until the lapse of the thirty days. We think that section 406 of the Code of Civil Procedure was framed to meet just such a case, and to suspend the running of the statute during the term of the statutory prohibition. * * * This construction also relieves the statute from the apparent inconsistency pointed out in the opinion at General Term, of allowing a plaintiff six years within which to commence an action, and at the same time prohibiting him during thirty days of that term from maintaining any action."
In the case at bar we are dealing with a statutory prohibition of three years instead of thirty days, and have the plaintiff in a position where if this rule is not applied she is wholly deprived of her remedy against the devisees of John Fassett. We think the cases cited in this court, and the reasons already given, indicate the proper rule of construction to be followed on this occasion and it would not be profitable to discuss in detail any case in this court or elsewhere which has either directly or by reasoning held to the contrary.
We have laid down what seems to us a reasonable rule in harmony with the statute and which is calculated to protect not only the rights of the creditor, but those of the heir and devisee as well.
The judgment appealed from should be affirmed, with costs.
All concur, except HAIGHT, J., not voting and MARTIN, J., not sitting.
Judgment affirmed. *Page 71