There are insuperable objections to the disposition which the alleged trustee, as executor of the will of Ivory Jordan, proposes to make of a legacy therein given to David N. Jordan, the principal defendant.
*485Under E,. S., chap. 86, § 36, it is liable to be held upon this process, payable when the settlement of the estate has sufficiently advanced, but not relieved from the attachment which this plaintiff has placed upon it unless the facts stated in the trustee’s disclosure are such as would relieve the trustee from paying it to the principal defendant. The limitations of an executor’s liability as trustee of a legatee are defined in R. S., chap. 86, § 42. See also, § 61.
An alleged trustee’s right of set-off as against the principal defendant is also regulated by § 64, which would doubtless relieve such hard cases as that of Ingalls v. Dennett, 6 Maine, 80; Stedman v. Vickery, 42 Maine, 132.
But we look in vain to the statement of the trustee for any facts which would amount to a legal defence in any suit which the principal defendant might bring against him for the amount of the legacy given in the testator’s will.
He holds a joint and several promissory note signed by the principal defendant as principal and by the testator as surety ; but it was barred by the statute of limitations as against both the promisors before the death of the testator. The testator had never paid anything upon it, and so far as appears had no demands against the principal which were liable to be deducted from the legacy. The trustee, as executor, has nothing which would avail him against the principal defendant’s demand for the legacy when it becomes payable. His position is that he has a right to waive in his own favor the bar of the statute of limitations and to bind the estate of his testator by a new promise to himself to pay a debt which at the date of his testator’s death could not have been legally enforced.
In this state, however, claims against the estates of deceased persons thus barred do not seem to be regarded as debts ; for ■while our statutes from the beginning have contained provisions for the sale or setting off' upon execution of the real estate of deceased debtors in discharge of their debts, it was early held, in Nowell v. Nowell, 8 Maine, 220, that no license ought to be-granted to sell such real estate to pay claims which appeared to be barred by the statute of limitations. Yet, to allow an cxecu*486•tion to issue, upon wbicb tbe personal or real estate of a deceased person may be taken, is prima facie waste in the executor or .•administrator, for it is his duty to provide seasonably by a regular course of proceeding for the distribution of the estate :among the creditors, heirs or legatees, according to their respective rights. Weeks v. Gibbs, Cumberland Co. 9 Mass. 72; Clark v. May, Kennebec Co. 11 Mass. 233; Sturgis v. Reed, 2 Maine, 109.
From the dilemma in which executors and administrators are thus placed it would seem to follow that our court regards it as ■their duty to interpose the statute bar. Oakes v. Mitchell, 15 Maine, 360, cited for the trustee, ex¡oressly avoids holding otherwise after calling attention to the decisions in Connecticut and Pennsylvania as conflicting with those in England, Massachusetts .■and New York. What is said in Oakes v. Mitchell, amounts at ■most only to a query whether the representative of the deceased ■ can charge the estate by any promise made by him to pay a debt ’ ■thus barred.
We think it better .that a careless creditor who suffers his ■ claim to become thus barred should occasionally suffer a loss ■than it would be to open so wide a door for the plunder of dead men’s estates.
In any event, even where it is held to be competent for an . administrator by a new promise to revive as against the estate a ■ debt barred by the general statute of limitations, it seems to be held that he cannot make a promise to himself so as to take his ■ own claim out of the operation of the statute. Richmond, Adm’r, petitioner, &c. 2 Pick. 567.
Even his claims not thus barred must be specially passed upon by the probate judge, or the payment of them cannot be •allowed. E. 8., chap. 64, § 61.; chap. 66, § 8.
It does not appear in the present case that this has been done, - or that the executor has any claim against either the legatee or the estate of the deceased that can be regarded as available to •defeat the attachment of the legatee’s creditor.'
Exceptions overruled.
Appleton, C. J., Danfortii, Virgin, Peters and Sxmonds, ■JJ., concurred.