State ex rel. Hazzard v. Layton — 3 Del. 469

Majority

p. 469

STATE, use of William Hazzard and wife vs. C. S. LAYTON et al.

Headnote

The saving of the sixth section of the act of limitation in favor of persons under disability applies to administration and other bonds, which by the Jirst section are barred in six years from their date. And if the person entitled be a feme covert at the time the cause of action accrues, an action may be maintained by the husband, though brought after the expiration of six years from the date of the bond.

The principles of calculating interest and deducting payments on bonds; running accounts; and for and against administrators or guardians,1 stated.

The jury are not bound to state the principles on which their verdict is founded; but if they return, together with the verdict, a statement which shows errors of law, or of admitted fact, the court will set aside the verdict for this cause, and grant a new trial.

Debt on an administration bond on the estate of John Wilson, deceased, dated the 11th of January, 1826. Narr. without suggesting breaches. Oyer granted. Pleas, non est factum; performance; and Ihe act of limitation. Replication suggesting breaches, and issue on the plea of non est factum. To the plea of the act of limitation, re-olicdtion precludi non, because John Wilson by his will, dated the 1th of November, 1825, did devise thus: “Item, it is my wish and desire that my estate shall, after taking out the legacies that I have given my daughter, be equally divided between my son, David James knd daughter Elexine Wilson, when they arrive at the age of maturity;” that said Elexine married William Hazzard, the -plaintiff, on Ihe 9th of January, 1834, and she arrived at the age of twenty-one gears on the 22d of June, 1840; and that this suit was brought with-three years after she arrived at age or maturity. To this replica-lion the defendant demurred.

Ridgehj, in support of the demurrer,

said the replication was not sufficient answer to the plea. The act of limitation of 1829 provides that no action shall be brought upon an administration bond

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after the expiration of six years from the date of such bond. The provision as to other bonds in the same act is different, and the difference is noticeable, as forming a designed distinction The legislature designed to make the limitation on administration bonds to com menee from the date of the bonds; in all other cases the limitation begins to run only from the accruing of the cause of action. It is not competent for any man by his will to repeal or defeat the law of the land. Suppose A. by his will bequeaths to his son, then of full age, a legacy payable ten years after the grant of letters of administration. Would not the act of limitation bar the claim in six years after its date! The suit on the bond would be barred, though he had never any right of action within the six years; yet he would have a remedy in assumpsit, after the time of payment appointed had arrived And though this may be regarded as a hardship, it is a necessary consequence of the policy of the law, that the sureties of an administrator, and the administrator himself, should not be officially responsible for a longer time than six years. There can be no doubt on the tuords of this act, that this bond is barred, and it is always safer to place the construction on the face of a law. (9 Law. Lib. 702-3: Dicams 48, 52.) Does the proviso in section G take the case out oi statute! “If the person entitled shall at the time of the accruing oi such cause of action, have been under the disability of infancy, co-verture,” &c. Who is the person entitled! William Hazzard the husband and not his wife. So decided by this court in the appeal fro the Orphans’ Court between these same parties. (Jlnle 348.)

The court in Shankland’s case decided that the husband could no take any benefit under the saving of coverture, which is a personal saving to the wife, to be enjoyed by her after discoverture. No mor can the husband be benefited by the wife’s saving-of infancy. Th wife’s interest may be protected as to her, both during infancy and during coverture, and her right of action may revive on the death the husband, yet during the life of the husband he cannot take th benefit of the saving of the statute, which is a saving exclusively fo| his wife’s benefit.

Houston. — It is not necessary for us to controvert the decision cl the court in the former case between these parties. This is a verf different case. The former was a question whether the husband a legatee, having suffered three years to elapse after his marriagij during all which time he had the power to except to this defendant administration accounts, was not barred of his right to except; hcil

p. 471

it is whether the husband and wife may not bring suit on the administration bqnd almost at the first moment at which either of them could bring the suit.

John Wilson by his will directed his daughter^ share of his estate to be paid only when she attained full age; her marriage with the plaintiff did not accelerate the time of payment or give Hazzard any right of action before she came of age. The defendant entered into an administration bond, c. t. a., to settle and distribute the estate according to law, and according to the will. This was a contract on his part to pay when and as the will directed. This contract was ■entered into,in 1826, andonee entered into it was covered by the protection of the constitution of the United States, even against State egislation. It would not even be competent for the legislature to anticipate the time of payment, and direct it to be paid earlier. The contract was binding on both parties, just as the will and bond made t. Elexine Wilson had the right to receive, and the defendant was bound to pay, this money only as the will directed. And if the act if 1829, of limitation, is to have the effect to give Hazzard the ower of suing before that time, or takes away from him and his wife the power to sue at that time, it is unconstitutional and void. agree that limitation laws have not been held as violating the institution of the United States; but a law that does not merely imit the time of bringing action, but altogether takes away the right d action, is unconstitutional and void. Such is the offect of the contraction-of the other side, which not merely limits the time of bring-ng suit, but takes it away altogether.

2d. The legislature designed in all cases to secure the parties entitled |o distributive shares by bond and security. The law requires such ond in every case. And if there is any difference between cases where e estates may be settled immediately, and those where it must be ostponedfor many years, the necessity of extending the security of the ond to a remote settlement is stronger than that which provides secuity for the earlier payments. The proviso of the sixth section, both by s spirit and letter, saves to any person entitled to an action, the right f suing at any time within three years after the removal of any of e disabilities mentioned in the act. A statute is to be construed as lear as may be to the common law, and to further the objects of the atute;' to cure the evil, and advance the remedy. (9 Law. Lib. 39-b.) The object of the act of limitation is to compel persons having a ¡ght to sue to do so within a reasonable time; not to take away the

p. 472

right of suit before it arises. The evil was, that any one who had a right to sue might do so at any time; the object was to restrain, not to take away, the right of suit. If Elexine Hazzard is barred by this act of limitation, she was barred for many years before she had a right of action; that is, her right to sue was limited before it accrued; a power is restrained which does not exist. Even the words of a statute may be disregarded to effect its object. ( 2 Harr. Rep. 184 , Luby vs. Cox; 9 Law. Lib. 61.)

Ridgely replied.

By the Court:

This is an action of debt brought under the act of assembly relating to bonds and penal sums, in the name ofl the State, for the use of William Hazzard and Elexine, his wife, late Elexine Wilson, against the defendant, upon the administration bond executed by him, as the administrator with the will annexed, of John Wilson, deceased, and by the sureties of the defendant, bearing date the 11th of January, 1826. The suit is instituted to recover the shar of said Elexine of the personal estate of her father, John Wilson, deceased; which, by his will, was directed to be paid on her attainin. to the age of twenty-one years. The case presents a good and sub sisting right of action in her, upon this administration bond, whicl: she could not prosecute, because of the disability of infancy and th supervening disability of coverture; and which no person could pro secute for her, or in her right, sooner than the commencement o: this suit. The only question submitted by the counsel on the argument of the demurrer, is whether this present action is barred by th act for the limitation of personal actions. The first section declared that “no action shall be brought upon the official recognizance of an sheriff, or upon any administration bond, or upon any testamentar bond, against either the principal or sureties, after the expiration o| six years from the date of such recognizance or bond.” The secón third, fourth and fifth sections relate to other personal actions. Th sixth section provides “that if the person entitled to any action com] prehended within either of the foregoing sections, shall have bee. at the time of the accruing of the cause of such action, under disa bility of infancy, coverture or incompétency of mind, this act sha not be a bar to such action during the continuance of such disability] nor until the expiration of three years from the removal thereof.

The defendant’s counsel insists that the present suit is barred b the positive terms of the first section, and is not within the protectio

p. 473

of the sixth; or in other words, that this action prosecuted' by the husband, for the use of himself and wife, is barred by the act of limitation before the right of action accrues. This proposition in itself untenable, is adverse to the object of all acts of limitation, which is to urge parties to prosecute their legal rights, and not to slumber over them; to quiet stale demands, but not to bar actions before the right to sue arises. In support of it the defendant’s counsel contends, that this case comes within the principle decided by this court in the appeal from the Orphans’ Court, between these same parties: that there the appeal, although taken by the husband in the name of himself and wife, was deemed to be his suit; because instituted by him in the exercise of his marital rights, and for his own exclusive use: pat for the same reason, this present action on the administration bond, being instituted by him for his exclusive use and benefit, is to Ire considered as his suit; and as he is under no disability himself, he cannot be shielded by the infancy of his wife, and her supervening ¡disability of coverture, and thus be protected by the sixth section from the operation of the first.

I In answer to this argument, let us consider what was the principle decided in the appeal from the Orphans’ Court. The present defendant, as administrator with the will annexed, of John Wilson, de-feased, had passed several administration accounts before the regis-jer, upwards of three years prior to the marriage of William Haz-iard, then of full age, with Elexine Wilson, then and for- several fears afterwards an infant. The eleventh section of the act for the imitation of personal actions, declares that no exceptions to an ac-lount of an executor, administrator or guardian shall be received in lie Orphans’ Court after the expiration of three years from the set-lement of such account; and then provides that this limitation, in re-Buect to any person under disability of infancy, coverture or incom-■etency of mind at the time of the settlement of any such account, mall begin to run from the ceasing of such disability, and not from le time of such settlement. The right to take exceptions to the ac-fcunts of the administrator with the will annexed, by way of appeal B the Orphans’ Court, accrued to the said Elexine immediately upon Beir settlement by the register, and was saved to her by reason of ¡r disability of infancy. This right passed to the husband at the ne of their marriage; and he then, in the language of the' constitu-ía, became a party concerned_ in the settlement of the accounts. r right to take the appeal then accrued; and as there was then a

p. 474

cause of action, a person competent to sue, a person competent to be sued, and a jurisdiction in which the suit might be maintained, this court decided that the act of limitation began to run against him from that time; and as he was then under no disability, and did not take the appeal until after the expiration of three years from the accruing of his right, he was barred by the act. This decision then is in direct opposition to the ground taken by the defendant’s counsel. If his argument be correct, that the present suit is barred because instituted after the expiration of six years from the date of the administration bond; then for the same reason, the appeal to the Orphans’ Court ought to have been barred, because it was taken more than three years from the date of the settlement of the administration accounts. But as the court decided that the act of limitation did not I begin to run against the husband until his right of appeal accrued; it follows, upon the same principle, that the act does not begin to run[ against him in the present case, until the accruing of the cause ol action, namely: the arrival of his wife to the age of twenty-one years;l and therefore, as this suit was instituted immediately after that period,| the act of limitation interposes no bar.

In the appeal from the Orphans’ Court between these parties, this! court viewed the proviso or saving in the eleventh section of th< present act of limitation, as substantially the same with that in th< former act (Del. Laws 890, vol. 2, sec. 2,) which, according ti the plain import of its language, had respect only to persons laboring under the usual disabilities. It interposed to protect them, an< not those who could assert their rights at any time before the expiration of the period of limitation. The latter were within the operation of the act; but against the former, it did not begin to run untij the ceasing of the disability. Upon this ground Shankland’s cas< was decided by the former Court of Errors and Appeals; and thi; court being of the opinion that the case between these parties, in th( appeal from the Orphans’ Court, fell within the principle of Shankl land’s case, decided accordingly. But the proviso or saving in th< sixth section of the act now in force, on which this case dependsl differs from that in the eleventh section of the same act, and fronl the saving in the second section of the former act in vol. 2 Del. Law\ 890. And although it was well observed in Murray vs. The East India Company, 5 Barn. & Ald. 205, that the several statutes of limi tation being in -pari materia, ought to receive an uniform construí tion, it may also be remarked, that'where the expressions in tw|

p. 475

the section of another act s proviso, saving or exception several sections of the same act, and in on the same subject, each containing a from the limitation of certain actions are different, the reasonable in fcrence is, that a different meaning was intended. The phraseology of the sixth section is peculiar to itself. The saving is to the action to which the person under disability is entitled. It does not declare that as to the persons under disability, the limitation shall begin to run at the ceasing of the disability; but that the action to which they are entitled shall not be barred by the act, during the continuance I of such disability, nor until the expiration of three years from the removal thereof. Why were the words “during the continuance of skc/i disability” inserted? If the legislature intended, as in the second section of the former, and in the eleventh section of the present act, merely to save to persons under disability the right to bring their action within a certain time after their disability ceased, the saving [of the action during the continuance of the disability was nugatory; because during such continuance they are incompetent to sue or act for themselves; and therefore their rights would be equally well protected without such clause, by simply allowing them to bring their action within a limited time after the removal of their disability. It leems then, that it was intended in the sixth section of the present pet, to allow the action to which a person under disability was enti-lied, to be prosecuted by a party in right of such person, during the fcontinuance of such disability. At the time of the marriage of William Hazzard with Elexine Wilson, and for several years after, she Ivas an infant; and thus was under the double disability of infancy Ind coverture. When the right accrues, on her attaining the age of Iwenty-one years, to demand from the defendant, as administrator with the will annexed, her share of her father’s personal estate, she k still under the disability of coverture. She is then a person enti-led to an action upon the administration bond of the defendant, and Inder the disability of coverture at the time of the accruing of the lause of such action. In positive terms it is declared, that the act liall not be a bar to such action during the continuance of such disa-Iility. And although the present suit, according to the argument of lie defendant’s counsel, is to be considered the husband’s suit, and lot the wife’s; prosecuted by him for his, and not for her benefit; Iver which he has the whole control, and she none; the proceeds of |hich wrhen obtained under judgment and execution, belong to him, lid not to her; still it is an action to which she is entitled; and it is

Concurrence

p. 476

only because she is so entitled that he has a right to prosecute it, or take any step respecting it. It would seem, therefore, by the very terms of the sixth section of the act of limitation now in force, that the legislature intended to avoid the principle established in Shank-land’s case, and that such an action as the present should not be barred during the continuance of the disability of the person entitled to it.

. The opinion of the court is, that judgment on the demurrer be rendered for the^plaintiff.

I concur in the opinion just pronounced by I the chief justice as to the construction of the first and sixth sections of the act of limitation. A difference of opinion as to the true con-1 struction of the eleventh section, makes it necessary for me to concur with qualifications.

The defendant in this case administered on the estate of John Wil-¡ son, with the will annexed, and gave bond for the faithful administration of the estate. Elexine Wilson who was entitled to a sharel of the estate, was an infant at the date of this bond, and the will of her father directs that her share of his estate shall not be paid to herl until she arrived at full age. During her infancy she married Wil-| liarn Hazzard, the plaintiff, and on her arriving at age, which was more than six years from the date of the bond, this suit was com-l menced for her share of the estate. The act of limitation is pleaded in bar of the action, and her infancy is replied.

The act declares that no action shall be brought upon any admi-l nistration bond after the expiration of six years from the date of sucll bond; provided, that if the person entitled to any action upon such bond, shall have been at the time of the accruing of the cause ol such action, under disability of infancy or coverture, that act shall not be a bar to such action during the continuance of such disability! nor until the expiration of three years from the removal thereof.

The breach assigned of the condition of the defendant’s bond is that the defendant did not pay over to Elexine Wilson, now Mrs) Hazzard, on her attaining full age, her share of her father’s estate When this portion became payable, Mrs. Hazzard was under the dis ability of coverture, and the act says that if the person entitled to an j action on this bond shall have been at the time of the accruing of th| cause of such action under disability of coverture, that act shall nc be a bar to such action during the continuance of such disability, nol for three years after the removal thereof. If the object of this savinj

p. 477

clause was to benefit the wife alone, to suspend her right of action during coverture, and revive it upon her husband’s death, why was it said that the act should not be a bar to any such action either during the coverture, or for three years after discoverture? Why did not this act follow the provision of the old act of limitations, under which the decision in Shankland’s case was made, and save to the feme covert, not the right of action during coverture, but the right “of bringing such action within three years after being discovert.” There cannot be a doubt that the change made in the saving clause of the new act of limitation effects a change of the law as it was settled in Shankland’s case, and we have very little doubt that it was the express design and object of the legislature to make such a change. The decision in Shankland’s case was upon the point, that the old act of limitations, which barred the bond as this does in six years after its date, did not save a feme-covert’s right of action during co-overture, but only saved to her personally, the right to bring action after her husband’s death; the present law in express terms declares, that if the person entitled to the action shall have been a married woman when the cause of action accrued, the act shall be no bar to such action, either during her coverture, or for three years after. [Mrs. Hazzard is entitled to an action on this bond for her distributive share; the action accrued when she was a feme covert, and we [must blot out of the saving clause the words “during the continuance [of such disability” or hold that any action brought for this cause [of action and in her right, during the coverture is barred by the [statute.

[ The saving is not personal to Mrs. Hazzard, but is a saving of the [right of action, and in this respect differs in terms from the saving in the [eleventh section, as to the time for appealing from the administration [accounts, which a majority of the court have regarded as a personal [saving to the wife that could not be communicated to another, who [sued for his own benefit though in her right. The language of that ■saving clause is, that in respect to any person under disability of infancy or coverture at the time of the settlement of the account, this ■limitation shall begin to run only from the ceasing of such disability.

I If this be not the true construction of the act, a contrary one would ■make it limit a cause of action before it accrued. It would become Ian act not to restrain the time within which a party should enjoy the Bright of bringing suit, but to take away that right altogether before Bt ever could have been exercised. The court would hesitate long

p. 478

before they reduced an act of the legislature to such an absurdity; and if the words of the law compelled to such a conclusion, it would be a case, if there could be any case, for sacrificing the letter of the law to its undoubted object and spirit. The argument in the former case was, that the saving of the statute was only to protect the wife’s disability to sue; and as the husband was under no such disability, it could not apply to him. I had then occasion to state my opinion that the act had no reference whatever to the husband’s ability or disability, but protected the wife’s infancy whether any one else, guardian, next friend or husband, had or had not the power to sue for her; but the argument now is, that the protection of the statute thrown over the wife’s infancy, and which the law says shall continue during all her infancy and for three years longer, is taken away by her marriage, although that marriage gives no power of bringing suit either to her or her husband, before she comes of age. Our present construction of the act, instead of being open to the objection that it keeps alive a right of action against sureties beyond the time designed by the law, or which good policy would allow, will have a contrary effect. If the husband has the right to enforce the action of the wife during coverture,, it will close the matter and fix or relieve sureties sooner than the contrary construction, which denies to any one the right of suit during the coverture; but suspends the suit over the heads of sureties only during the husband’s life, to be revived with all its consequences and force after his death. It were far better to have it settled and brought to a close during the husband’s | life, than to defer and keep alive this responsibility to such an indefinite period.

Judgment for plaintiff.

These cases were subsequently, during the same term, tried before j a jury. On this trial the principles of calculating interest for and I against administrators and guardians were much discussed; and the I court directed the jury on that subject, as follows:—

By the Court — The defendant is charged in the administration ac-| count with all the money that came to his hands, and interest upon! it up to the settlement; and he is now to be charged with interest! upon the balance from the date of the account to this time. He has! made several payments on account of the maintenance and support! of the party entitled to this balance, and some payments to her guardian, upon which he ought to be allowed interest.

But the principle of calculating this interest, from what time, and!

p. 479

to what time; is important to be settled. In payments towards bonds and mortgages the payment is deducted out of interest due first, and then out of principal. It wduld be impossible to do that in this case, because the amount in which the administrator was indebted to the estate of plaintiff’s father, was not ascertained when the payments were made. In the settlement of running accounts, the principle is to calculate interest on both sides from the time of payment to the settlement of the accounts, which is the principle upon which the defendant claims to be allowed interest in this case. But that principle is not correct in respect to this matter; and if applied to a long series of years, would produce injustice to the minor. The rule of the Orphans’ Court is to apply the guardian’s payments to the receipts as fast as those receipts are ascertained to be in his hands, that is yearly.^[1] The receipts of the year are charged to the guardian, with interest, and his disbursements allowed, with interest up to the end of t'he year, first out of interest. This is neither the mode of applying payments to bonds, nor of settling mutual accounts, but is a combination of both. The payment is not deducted at the time it is made, as it would be if it was a bond payment; neither is it held in suspense and bearing interest until a final settlement; but annual rests are made and the payments applied at the end of the year. If the defendant had been the guardian of this plaintiff at the time he made these payments for her maintenance and support, he would have been allowed Interest on the payments until the end of the year, which would be the first opportunity of deducting them from his receipts. His payments as a trustee ought not to place him in any better situation, and they ought to be deducted from his receipts or the amount Hn hand at the earliest period when that deduction can be made, ■which is the date of his administration account. The payments, Wherefore, with interest from their date, are to be deducted from the Walance appearing on the administration account, and then interest Ws to be calculated on that balance to this time.

M As to the commissions and charges for passing the trustee account, Whey are-not to be allowed. There is no authority for passing such Wiccounts; and, though the court has held that actual payments made Wiy any person for the necessary support and maintenance of a minor Wvho has no guardian, may be pleaded as a defence to the claim of

* So decided in Brown vs. Boone, Orphans’ Court, Kent, October term, 833. Quere. — Ought it not, since the act of 1835, to be biennially?

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such minor, it has never gone so far as to allow the person making such payment, commissions for his care and trouble. He is a mere volunteer, without authority or responsibility as a guardian; and, though it may be hard to refuse any allowance for care and trouble, we think it would be a dangerous precedent to allow it in such a case as this.

The court suggested the propriety of each party making a statement and calculation according to these principles, to be submitted to the jury, but the plaintiff’s council declined, and the court refused to let the defendant’s counsel submit his statement alone.

The jury came into court with a verdict for §3,566 20. Before it was entered, the defendant’s counsel asked that the jury might be permitted to explain the principles upon which they had arrived at that result; or, at least, submit their calculations; as a calculation made according to the charge of the court produced a different result.

The Court said: — No one has the right to demand of the jury the I principles or reasons of their verdict; but if the jury choose to return,! together with their verdict, a statement of the calculation by which,! in a mere matter of figures, they have arrived at a certain sum, the! court would inspect that calculation and point out to the jury any! merely clerical error which they had committed, and give the jury! an opportunity to correct that error if they please; but the court dol not require any such statement of the jury. (See 3 Chit. Qen. Prac.X 921.)

The jury returned to their room and after being absent about tenl minutes, came into court with a written calculation which they de-l livered, together with their verdict, showing an amount of §3,566 20.|

Verdict accordingly.

Whereupon the defendant’s counsel gave notice of a motion for al new trial; which was afterwards argued by Mr. Ridgely, in supportf of the motion, and Mr. Houston, contra. The court stopped Mr.\ Ridgely, in reply.

The granting new trials is a matter in the legal discretion of the court; and if it were not so, injustice must ofter be done. The only matter in the affidavit filed in this case which wel shall notice, is the mistake or error of the jury in calculating interest!" on the credits to be allowed the defendant. When this case went tol the jury there was no controverted fact, upon which they had to de-l cide in making out their verdict. The plaintiff’s claim was founded

p. 481

on an administration account, which had been corrected in the Orphans’ Court, and the balance upon it was admitted to be $3,330 13. That balance was composed of principal and interest up to the 19th of May, 1835, and the court told the jury that the plaintiff was entitled to interest upon that balance, after deducting the credits. . These credits consisted of three payments made to the guardian of Mrs. Kazzard, before the passing of the administration account, and necessaries furnished to her before she had a guardian, all of which were admitted by the plaintiff to be correct after inspecting the vouchers. These items had been passed in a trustee account, and the only matters controverted were the interest upon them, the charge for commissions, and the fees for passing that account. The commissions and fees the court decided were not a legal charge, and directed the jury not to allow them to the defendant; but, as to the in-erest, the court told the jury that, as the defendant was charged with nterest on all that was in his hands as administrator, he was legally ntitled to interest on these sums paid by him on account of Mrs. Hazard, and directed the jury to allow such sums with interest up to the ate of the administration account, by deducting them from the amount f that account, principal and interest, asof the date of May 19th 1835; nd then to calculate interest on the balance against the defendant p to the present time. Both the parties were requested to prepare statement showing the balance due on these principles, which the ¡laintiff’s council declined to make, and objected to the allowing any atement made by the defendant’s counsel to go before the jury, nder these circumstances, the court directed the jury to make the aleulation themselves, which they voluntarily returned with their rdict, and which shows that the principles which the court an-unced as the law governing the case, were not followed out.

But apart from this statement of the jury, the court know beyond possibility of doubt, that the jury could not have arrived at the re-lt they did on the principles announced by the court; it being a |ere matter of calculation on admitted data. The jury, therefore, her through mistake or disregard of the law as stated in the charge, returned a verdict against the law and the facts, which court are bound to correct in the only way that is now left open Í’ the attainment of justice, and that is by setting aside the verdict d ordering a new trial.

Another jury was then empannelled, and by the agreement of both es rendered a verdict for $3,109 84.