Hyperlawhypertext legal database Bloodgood v. Bruen 6 N.Y. Super. Ct. 427

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Bloodgood v. Bruen

6 N.Y. Super. Ct. 427 4 Sandf. 427 Court N.Y. Super. Ct. Decision date 1851-01-25 English

Contents

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Thomas T. Bloodgood, Executor, &c. of Thomas Bloodgood, v. Herman Bruen, Executor, &c. of Thomas H. Smith.

Headnote

A will contained the following clause: “ I direct all my just debts to be paid, and in relation to all- claims and demands, either in my favor or against it, I give to my executors power to compound, compromise, submit to arbitration, or otherwise in their discretion adjust and settle the same, as they shall judge most for the interest of my estate, and conformable to justice.” Held, that this provision did not create a trust for the payment of the testator’s debts, which would prevent the statute of limitations from applying to a demand against the estate.
Where a bill was tiled by a receiver, (appointed in a creditor’s suit brought against B., the judgment debtor,) which bill alleged that B. was the executor and surviving partner of S., and a devisee under his will, that all or nearly all of the debts and liabilities of the firm had been compromised, or paid and discharged, and that upon a settlement of the estate of S., there would be found a large balance belonging to B. individually, or as one of the partners of the firm, and also in right of his wife as devisee or heir of S., and prayed for an account, and B. put in an answer alleging that a debt owing by S. to T. B., with the interest upon it, was a subsisting and valid claim against the estate of his testator, entitled to priority over the claims of the legatees and devisees under' the will, he himself, in right of his wife, being one of such legatees and devisees; held, that this acknowledgment implied not only B.’s obligation, but his willingness to pay if he had sufficient funds of tile estate in hia hands for that purpose; that it was a plain admission that the debt was due, and that the party was willing to pay it; and that in a suit brought by the executor of T. B. against B., to recover the amount of the debt, such acknowledgment was sufficient to take the case out of the statute1 of limitations.
It is not necessary that an acknowledgment of a debt, in order to take the debt out of the statute of limitations, should be made to the creditor himself, or his agent. It is sufficient if made to a stranger.
Although, in ordinary cases, where an executor has no duties to perform, or power to exercise, in regard to the realty, an admission or acknowledgment by him of the existence of a debt will not bind the real assets in the hands of the heir or devisee ; yet where the executor is also devisee in trust of the whole estate, and has the entire management of it in his hands, and the whole control over its disposition, the rule is otherwise.
(Before Duer, Mason, and Campbell, J. J.)
Nov. 1, 1850 ;
Jan. 25, 1851.
The original bill in this cause was filed in th'e court of - chan
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eery on tbe 16th of August, 1845, by the plaintiff, as sole acting executor of Thomas Bloodgood deceased, against George W. Bruen, as the sole acting executor of Thomas H. Smith deceased, and individually, together with Mary T., his wife; Francis L. "Waddell and Louisa Ann, his wife, Thomas'H. Smith, John Smith Bruen, George W. Bruen Junior, Mary Bruen, Virginia Bruen, and Bichard S. Williams.
The bill stated in substance that, in 1828, the firm of Thomas H. Smith & Son, being then composed of Thomas H. Smith and George W. Bruen, became indebted to the plaintiff’s testator in the sum of ten thousand .three hundred and sixty dollars and eleven cents, to secure the payment of which the firm gave to the testator their promissory note, dated June 21st, 1828 ; that upon this note no part of the principal nor the interest has ever been paid; that Thomas H. Smith, in the month of September, 1828, departed this life, having previous^ made and published his last will and testament, in and by which George W. Bruen was named as executor thereof, and that Bruen qualified and became sole acting executor thereof; that T. H. Smith, at the time of his death, was possessed of a large real and personal estate; that Bruen was also sole surviving partner of Smith, and that all the boobs and papers of Smith, together with a large amount of real and personal property belonging to him, came into Bruen’s possession, and that he had never in any manner accounted for the same, nor for any part thereof — and the bill thereupon claimed from Bruen an account and discovery thereof. The bill further stated, in effect, that Bruen had several children, minors, who claimed some interest in the estate of Thomas H. Smith, and that all the debts of the firm of Thomas H. Smith & Son had been paid or compromised, except the promissory note above mentioned; that there were certain judgments still outstanding against Smith, which, in fact,'had been paid or satisfied with assets arising out of the estate of Smith, or the firm of Smith & Son. The bill further charged that Bruen had in his possession, property or assets arising out of the estate of Smith, more than sufficient to pay the note, together with the interest, and described a part of such prop
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erty, and that, in 1842, Bruen admitted this property to be liable for the debts of Smith, including the promissory note above mentioned. The bill charged that the other heirs and devisees of Smith, had in their possession lands belonging to his estate. The bill further charged that Bruen had, at divers times and to divers persons, admitted the note to be due, and promised to pay the same, and particularly in a certain suit in which James Iddings was complainant, and George W. Bruen and others, defendants.[1] Bruen, on or about the eighteenth of June, 1842, in a certain answer duly signed and sworn to by him, in answer to the bill of complaint of Iddings, averred and stated that part of the debts of Thomas H. Smith were compromised, but that a certain promissory note to Thomas Blood-good, and which is the same note above mentioned, amounting, with interest, to about twenty thousand dollars, was yet due and unpaid. And the bill charged that the admission, so made in that answer, was not accompanied by any qualification or condition, or any thing from which it could be inferred that •.Bruen was unwilling to pay the amount whenever it should be demanded. The bill further charged that Bruen had been discharged under the bankrupt law, and that he had refused to pay the note, or any part thereof, and prayed that he might be directed to pay the amount due on the note, for principal and interest.
George W. Bruen appeared, and with his wife put in an answer to the bill, which was excepted to. The exceptions • were in part sustained, and in part disallowed. But no further answer was put in by them.
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The defendants, Waddell and wife, T. H. Smith, J. Smith Bruen and Williams, demurred to the bill. The other defendants, who were infants, put in an answer.
On the 20th of October, 1846, on the petition of the complainant previously presented, an order was duly made and entered by the surrogate of New York, by which it was ordered and adjudged that George W. Bruen should within five days execute and deliver to the surrogate a bond to the people of the state of New York, with two sufficient sureties to be ap.proved by the surrogate, in a penalty of eighty thousand dollars, conditioned that he should faithfully execute the trust reposed in him as the executor of Thomas H. Smith. Upon proof of service of this order upon George W. Bruen, and that he had wholly neglected to comply with it, a further order was made by the surrogate, by which it was ordered, adjudged, and decreed, that the letters testamentary issued to George W. Bruen as executor of Thomas H. Smith be superseded.
The complainant then filed a supplemental bill stating the above facts, and alleging that by a further order of the surrogate, Herman Bruen, who was one of the executors of the last will and testament of Thomas H. Smith, and who had duly qualified,.had taken out letters testamentary on Smith’s estate.
The same parties were made defendant, and the same relief insisted upon and prayed, as in the original bill.
■ George W. Bruen suffered the supplemental bill to be taken as confessed by him.
Herman Bruen, the substituted executor of Smith, put in an answer admitting the bankruptcy of George W. Bruen; the debt to Bloodgood and the note therefor as stated in the bill; that from information, he believed the principal money secured by the note, with interest from its date, still remained unpaid; and he admitted that he had not, as executor óf Smith, paid the note or any part thereof. He also admitted that George W. Bruen, by his answer in the suit in which James Iddings was complainant, and George W. Bruén and others were defendants, before mentioned, and which answer was sworn to and filed on the day and year set forth in the bill, did state and say
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as follows: “ And these defendants further answering, say, that a large amount of the debts and liabilities of the said firm of Thomas H. Smith & Son have been páid or compromised in some way, but that there is still a considerable amount of debts and claims outstanding against thém; that among the rest there is a judgment in favor of the United States for $9000 and upwards, besides interest from the year 1828, outstanding against said firm, and docketed in the circuit court of the United States for the district of New Jersey, in the year 1829; secondly, a debt of $10,000 and upwards, with interest from the year 1837, paid by the said Matthias Bruen to the representatives of David Stebbins, "deceased, and still held by the said Matthias Bruen against said firm; thirdly, a debt due by the said firm to Thomas Bloodgood, and amounting to $20,000 and upwards, including interest, and that all these, amounting to $57,000 and upwards, including interest, are exclusive of the aforesaid judgments, amounting to $800,000 and upwards, in favor of the United States, and which were assigned by the government of the United States to the said Matthias Bruen in the manner aforesaid, in the year 1835. These defendants, therefore, deny that all or nearly all the debts and liabilities of the said firm of Thomas' H. Smith & Son have been compromised or paid by any person out of the funds or property of the said firm or otherwise.”
But the defendant insisted that the complainant’s cause of action in his bill of complaint set forth, did not accrue within six years next before the filing of his bill, nor within six years before the commencement of this suit, and the defendant insisted upon the objection and upon the statute in such case made and provided, and claimed the same benefit thereof as if he had pleaded the same.
The defendant alleged also that he had not, at any time since the issuing of the letters testamentary to him, nor since he was made a party to this suit, had, and had not now, any goods or chattels which were of Thomas H. Smith, deceased, at the time of his death, in the hands of the defendant as executor to be administered; and he prayed and claimed the same benefit thereof in this suit as if he had pleaded the same.
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The will of Thomas H. Smith, the defendant’s testator, contained the following clause, which the plaintiffs insisted created a trust for the payment of the testator’s debts, and that the .statute of limitations therefore did not apply, viz.: “I direct all my just debts to be paid, and in relation to all claims and demands, either in my favor or against it, I give to my executors power to compound, compromise, submit to arbitration, or otherwise in their discretion, adjust and settle the same, as they shall judge most for the interest of my estate and conformable to justice.”
Replications were filed, and proofs taken, in the cause. It was transferred from the supreme court to this court,- under the act of 1849.
T W. Tucker and G. O’Conor, for the complainant.
I. George W. Bruen, sole executor and surviving partner of Thomas H. Smith, within six years of the commencement of this suit, in an answer in chancery, under oath, to a bill filed by one James Iddings, averred the debt which the plaintiff seeks to recover to be due and unpaid. This averment was sufficient to prevent the plaintiff’s claim from being barred by the statute of limitations. It was an unequivocal admission, unaccompanied by any qualification or condition. The averment was made to protect the testator’s estate, and his own interest, and was intended to convey the idea of an intention to pay. It was not necessary that the admission should have been made to the plaintiff. If made to a stranger, or in plaintiff’s absence, it would be sufficient to bar the statute. (Angell on Limitations, 296: Adams v. Orange County Bank, 17 Wend. 514 ; Purdy v. Austin, 3 Wend. 187 ; Allen v. Webster, 15 Wend. 284 ; 1 Peters, 351; McCrea v. Purmort, 16 Wend. 460 .)
II. The admission and promise of George W. Bruen, the surviving partner, was sufficient to take the plaintiff’s'claim out of the statute of limitations. Bruen, as surviving copartner, had, after the death of Smith, authority as to all things indispensable to winding up the copartnership. (Van Keuren v. Parmelee, 2
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Comstock, 531.) This necessarily gives him the right to employ the copartnership funds, in his hands, in the payment of the copartnership debts. A surviving partner, in whose hands the partnership assets are, is in equity a trustee to pay the copartnership debts. ’ (Abeel v. Abeel, 1 Paige, 498.) At the time of Bruen’s admissions, it was' established- by the decree in Iddings v. Bruen, that Thomas H. Smith owed the copartnership of which he and Bruen were members, $800,000. This debt is copartnership assets, and is liable in equity for the copartnership debts. As to the assets in question, Bruen is to be regarded as the trustee of the plaintiff. There has been no ádverse holding, no demand, or refusal, and the statute has never commenced running.
III. George W. Bruen, executor of Thomas H. Smith, within six years of the commencement of this suit, expressly promised to pay the1 plaintiff’s demand. This promise was sufficient to bar the statute of limitation. The statute had not commenced running at the testator’s death ; the note not being payable until afterwards. An express promise by an executor, to pay a debt not barred -at the testator’s death, will take the debt out of the statute. (2 Williams on Ex. 1384; Mauson v. Felton, 13 Pick. 206 ; Johns v. Beardslee, 15 John. 3 .) The promise of Bruen creates no new obligation. It being the duty of the executor, to pay the debts due, at the testator’s death, and the law not obliging an executor to. plead the statute of limitations, (2 Williams’ Ex. 1288,) it follows that he may pay, and a fortiori may promise to pay, notwithstanding lapse of time.! It is the duty of an executor to apply the assets as they come into his hands, to the payment of the testator’s debts. In the performance of this duty he is a, trustee for the creditors, and it is'' not necessary, in order to protect their claims against the ' statute, that they should commence suits against an executor who is acting in good faith for their advantage.
IY. The will of Thomas H. Smith, the testator, créatéd a trust to pay the plaintiff’s claim against which the'statute never had any operation. The plaintiff’s demand was a just debt at the testator’s death; the note on which the claim is founded
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not being then due. The executors have, under the will, power of satisfying not only just or legal debts, but any claim that may amount to a moral obligation, so long as they have assets in their hands. The most common mode of creating direct trusts not cognizable at law, is by the appointment of executors and administrators, (Angelí on Lim. 163,) and a trust created by will, prevents the statute from running in equity against debts not barred in the testator’s lifetime. (2 "Williams’ Ex. 1452; Blanchard on Lim. 39; Baker v. Martin, 5 Sim. 380; Fenwick v. Chapman, 9 Peters, 461; Kane v. Bloodgood, 7 Johns. Ch. Rep. 90 ; Roosevelt v. Mark, 6 Johns. Ch. Rep. 293 ; Rogers v. Rogers, 3 Wend. 517 ; Auld v. Goodrich, 4 Russ. 430; Crallan v. Outton, 3 Beavan, 1.)
Y. The testator’s right of action accrued prior to 1830. The limitation created by the revised statutes in respect to trusts does not affect this claim. (Williamson v. Field, 2 Sandf. Ch. Rep. 533; Spoor v. Wells, 3 Barb. Ch. Rep. 199 ; Ward v. Smith, 3 Sandf. Ch. Rep. 596.)
YI. The defendant, Herman Bruen, has not set up in his answer the bar of ten years, but only that of six years. The plaintiff would be, therefore, entitled to recover, even if the revised statutes had a retroactive effect, so as to affect trusts created previously to their enactment. This point was expressly adjudged in Dickinson and Wife v. Codwise, 1 Sandf. Ch. Rep. 214, 233; also in Van Hook v. Whitlock, 3 Paige, 407.
YII. There is now in the hands of Herman Bruen, executor, five hundred thousand dollars, realized from the sale of real estate of Thomas H. Smith, which, by the testator’s will, and the decree in Iddings v. Bruen, he is directed to apply to the payment of the debts of Thomas H. Smith and Thomas H. Smith & Son.
Wm. M. Hearts and Wm. Kent, for the defendant, Herman Bruen, executor.
I. The cause of action against the firm of Thomas H. Smith
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& Son, (composed of Smith and George W. Bruen,) set up in the bill, accrued to the plaintiff’s testator, on the 22d day of September, 1828. This bill was filed August 16th, 1845, and alleges admissions made by George W. Bruen, that the debt remained due and unpaid as late as the year 1842.
II. The cause of action arising upon a promissory note is, in its nature, exclusively of common law jurisdiction; it comes to be a matter of equitable cognizance, only from the death of one partner, and the bankruptcy of the other; the statutory limitation, therefore, applicable to the case is, that a suit must be commenced within six years after the cause of action accrued. (2 R. S. p. 296, § 18; 301, §49; 365, § 8; which are in accordance with the law previous to their passage.)
III. The bar of the statute of limitations is sought to be avoided by admissions of the debt made by George W. Bruen, within the necessary period before the commencement of the suit; such admissions, to be effectual against Bruen himselfj must amount to a new promise, -and can be claimed to bind the estate of Thomas H. Smith only, (1) as a new promise made by Bruen, as surviving partner; or (2) in his office of executor of Thomas H. Smith.
IV. The bill contains no allegation of any admission by George W. Bruen within the time necessary to avoid the operation of the statute, except that in his answer in the suit of Iddings v. Bruen, sworn to and filed June 18th, 1842, and evidence of this specific admission only is competent under the allegation.
This admission does not make out in law a new promise as against George W. Bruen. (1.) Its terms express no promise to pay, or expectation or design of paying the debt admitted. (2.) It was not made to the creditor, nor to any agent of his, nor upon application or inquiry in his behalf, and is too indefinite as to the debt and the amount of it. (3.) It was a compulsory statement, under oath, respecting the condition of the fund applicable to the satisfaction of the claim of the complainant Jddings; if was, and was required to be, historically true, but the occasion on which it was made, permitted no implication of
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a promise, and required no exclusion of the inference of one. (4.) The character and all the circumstances of the suit in which the answer was made, exclude any inference of an intention or promise to pay the debts recited in response to the charges of the bill.
V. If the allegations of the bill permitted proof of other admissions within the necessary period, none such have been established by the evidence.
VI. The statements or admissions of Bruen respecting the debt relied on by complainant, if made by him in any relation with Smith or his estate, were made in his character of surviving partner. (1.) The charges of the bill in Iddings v. Bruen, to which the answer was responsive, relate to the debts and funds of the firm, and the dealings of Bruen with them, as surviving partner; it neither charges respecting, nor requires an answer concerning, his proceedings as executor. The answer must be intended to be in the' same relation in which the charges are applied. (Deyo’s Executors v. Jones’ Executors, 19 Wend. 494 .) (2.) The bill in this cause does not charge any new promise or admission by George W. Bruen, as executor.
VII. An acknowledgment and promise to pay made by one of the partners, after a dissolution, will not revive a debt against a firm which is barred by the statute of limitations. (Van Keuren v. Parmelee, 2 Coms. 523.)
VIII. An admission or acknowledgment of a debt by an executor, in terms sufficient, if made by the debtor himself, to revive a debt barred by the statute, will not revive such a debt against the testator’s estate. An express promise is necessary, if even that can avail. (Tullock v. Dunn, Ryan & Moody, 416; Oakes v. Mitchell, 3 Shep. (Me.) 360 ; Johnson v. Beardsley, 15 John. 3 ; Thompson v. Peter, 12 Wheat. 565 ; Peck v. Botsford, 7 Conn. 176 ; Fritz v. Thomas, 1 Whart. 66 ; Reynolds v. Hamilton, 7 Watts; Angell on Lim, (2d ed.) pp. 291, 296.)
IS. Attributing, then, the statements of George W. Bruen, concerning the debt, to his official character as executor, they do* not revive the debt against the estate. Especially not against the real estate, the fund sought to be charged in this
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suit; and should a decree be made for the debt, as revived by a new promise of the executor, it should be limited, so as to confine its collection to legal assets only in the hands of the executor. (Morris v. White, 6 Johns. Ch. R. 373; 2 R. S. p. 101, §10.)
X. If a decree should be made for the principal debt, it should be without interest, or with interest at an equitable rate, and for not more than six years.

By the Court.

The original justice of the plaintiff’s demand against Thomas H. Smith & Son is not disputed ; nor is it pretended that any portion of either principal or interest has ever been paid upon it. The only question discussed before us was, whether the claim is or is not barred by the statute of limitations.

It was contended by the plaintiffs that the testator had created a trust for the payment of his debts, and that the statute of limitations therefore did not apply. The will contained the usual direction that all his just debts should be paid, but we are not aware that such a direction has ever been held to create a trust. It is only where the testator has ordered his real estate to be sold, or has devised it to be sold for the payment of his debts, that a trust is created, which is not affected by the statute of limitations. We have not been able to find any such devise or order in the will before us, or any clause or expression from which an appropriation of the real estate for the payment of debts, can be inferred. The idea that it might become necessary to resort to it for that purpose, does not appear to have entered into the testator’s thoughts. He evidently considered his personal estate to be much more than sufficient for the discharge of all his pecuniary obligations, for he directs that all the debts and incumbrances upon his real estate shall be paid ■ out of his personal estate, and gives a legacy of $30,000 to each of his children, and also the sum of $280,000 to be invested by his executors for their benefit, and then directs that if the personal estate should not suffice, after payment of all his debts, for these large sums thus given to his

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children or set -apart for their benefit, his executors should sell such part of his real estate as would enable them to make up and provide, not for his debts, but for the personal sums thus given to his children. He thus had distinctly in view, at the time of penning or dictating this clause, the existence of debts, and the necessity of their payment, as well as the amount of the legacies, and his direction to sell a portion of the real estate for the payment of legacies, and not of debts, is conclusive to show that he considered the personal estate to be sufficiently large to pay all the debts, and that therefore a provision for them out of the real estate was wholly unnecessary.

There was no trust then created by this will which would prevent the statute of limitations from running against this demand.

The plaintiffs next insisted, that, admitting the statute of limitations to be applicable to the claim, George W. Bruen, the executor, had made a sufficient acknowledgment of it to remove the bar of the statute, and, in support of that position, read his answer verified in June, 1842, to a bill in chancery, filed against him by one James Iddings. The plaintiff in that case was a receiver appointed by the court of chancery in a creditor’s suit, brought by Joseph Cowperthwaite, upon a judgment recovered by him against George W. Bruen for the sum of $36,000, or thereabouts; and the bill set forth the will of Thomas H. Smith and the various relations which George W. Bruen held towards his estate as surviving partner, executor, and devisee. It also charged, that all or nearly all of the debts and liabilities of the firm of Thomas H. Smith & Son had been compromised or paid and discharged, and that upon a settlement of the estate of Thomas H. Smith, there would be found a large balance belonging to Bruen individually, as one of the partners of Thomas H. Smith & Son, and also in right of his wife as devisee or heir of her father, and prayed for an account by him of the private estate of which he was executor, as well as of the partnership property.

In his answer to this bill, George W. Bruen admitted that a large amount of the debts and liabilities of the firm of Thomas

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H. Smith & Son had been compromised or paid, but insisted that there was still a considerable amount of debts and ..claims outstanding against them, several of which he specifies, and among them a debt due by the firm to Thomas Bloodgood, amounting to $20,000 and upwards, including interest, and that all these specified debts amounting in the whole to about $57,000, 'including interest, were, exclusive of certain judgments amounting to more than $800,000, recovered against them by the United States. He therefore denied that there was a large sum belonging to the firm of Thomas H. Smith & Son, in which he had an individual interest. He also denied that he had any interest in right of his wife in any surplus of the estate of Thomas H.'Smith, after payment of the debts and liabilities existing against it, because he believed that such debts and liabilities would, if they were all. paid, absorb the whole property of himself and wife, or either of them, in right of his said wife, as one of the heirs of Thomas H. Smith or otherwise. He then set forth two debts due from the individual estate of Thomas H. Smith, amounting, with interest, to $75,000, and said that those debts, being added to the before-mentioned debts of $57,000 against the estate of Thomas H. Smith & Son, made an aggregate liability against the estate of Thomas H. Smith, of $132,000 or thereabouts, exclusive of the judgments in favor of the United States for $800,000.

It was admitted that there was no other debt due from Thomas H. Smith & Son to Thomas Bloodgood than the 'debt mentioned in the pleadings in this cause. ' Here, then', was an acknowledgment in the year 1842j by Bruen, not only in his capacity of surviving partner of Thomas H. Smith & Son, but as executor of Thomas H. Smith, that the plaintiff’s debt, with the interest upon it, was a subsisting and valid claim against the estate of his testator, entitled to priority over the claims of the legatees and devisees under the will, he himself, in right of,his wife, being one of such legatees and devisees. The acknowledgment, considering the circumstances under which it was made, implied not only his obligation, but his willingness to pay, if he had sufficient funds of the estate in

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his hands for that purpose. The interposition of the statute against the payment of this debt would have been entirely inconsistent with the defence set up against the claim of the receiver. The answer was, to use the language of Mr. Justice Bronson, in Van Keuren v. Parmelee, (2 Comst. 531,) a plain admission that the debt was due, and that the party was willing to pay it, for it was an absolute denial of any interest in the estate until after the debt should have been paid.

It was objected, however, that the acknowledgment was made, not to Bloodgood himself, nor to any one in his behalf, but to a third person. But it has been repeatedly decided,' both in this state and in England, that it is not necessary that the acknowledgment of a debt should, in order to take it out of the statute, be made to the creditor or his agent; it is sufficient if made to a stranger. In Walden v. Lawrence, ( 9 Wend.. 297 ,) the court, in answer to this objection, said that the statute .of limitations does not, like an insolvent’s discharge, impair the contract, but only operates upon the remedy by affording a presumption of payment, and hence the acknowledgment of the existence of the debt revives the debt by removing the presumption; and upon this ground it is obviously unimportant to whom the acknowledgment is made; and so, the court adds, are the authorities. The same point was lately decided by the supreme court in the third district in Carshore v. Huyck, 6 Barb. S. C. R. 583;) see also Whitney v. Bigelow, ( 4 Pick. 110 ,) Mountstephen v. Brooke, (3 Barn, and Ald. 141,) Clarke v. Houghton, (2 Barn, and Cres. 149.)

The defendant’s counsel further contended, that whatever might be the effect of the acknowledgment by the executor upon the personal estate, it could not bind the testator’s real estate, and cited the case of Mooers v. White, (6 J. C. R. 373,) in support of his position. Chancellor Kent in that case held that an admission or acknowledgment by the executor ought not to bind the real assets in the hands of the heir or devisee, inasmuch as the executor does not represent the heir, and has no control over the real estate. In the present instance, however, the executor who made the acknowledgment was also devisee

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in trust of the whole estate, and had the entire management of it in his hands, and the whole control over its disposition. Admitting, then, the authority of Moers v. White, in ordinary cases, where the executor has no duties to perform or power to exercise with regard to the realty, it has no application to a case in which the real estate is placed as entirely under the control of the executor as the personal. The same principle which renders his acknowledgment as executor binding on the personal estate, gives to it an equal power over the real estate.

But this question does not necessarily arise at present in this suit. The plaintiff, on the hearing, did not ask any relief against the real estate of the testator. It appears from a statement of the decree in the case of Iddings v. Bruen, which is in evidence, that provision has been made in that decree for the payment out of the estate of all the debts of Thomas H. Smith and Thomas H. Smith & Son. All that is necessary, therefore, in the present suit, is to declare that the note given by Thomas H. Smith & Son to the plaintiff’s testator, and set forth in the bill, is a valid and subsisting claim against the estate of Thomas H. Smith, to be paid with the interest accrued thereon, in a due •course of administration. The plaintiff is entitled to a decree declaring the amount due for principal and interest on the note, (which may be ascertained and shown to the court upon affidavit,) to be a valid and subsisting claim against the estate of Thomas H.’Smith, to be paid in a due course of administration.

The plaintiff is álso entitled to recover his costs, to be paid at the same time with the debt.

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