In re the Estate of Sullenberger

Hayne, C. — This is an appeal from an order setting aside the allowance by the judge of a claim against the [550]estate. The ground of the order was that the claim was barred by the statute of limitations.

We think the claim was barred. It was upon a promissory note dated December 2, 1878, and payable eight months after date. Sullenberger died December 5,1883, at which time the statute had run against the note, unless the case is taken out of its operation by the following circumstances: After the death of L. C. Drummond (the payee), Sullenberger (the maker) sold some wheat to M. Drummond, who was the son of the payee and the executor of his will, and delivered some hogs to him to be sold; and M. Drummond advanced some money to Sullenberger and paid some of his debts, and testifies that on one occasion, when about to go on a short journey, “he said that when he should return, which would be in a short time, he would settle the whole indebtedness; and if the proceeds of the wheat and hogs were not sufficient to settle the note and money advanced and paid to his creditors, he would pay the balance.” M. Drummond sold the hogs, and after applying the proceeds of the hogs and wheat to the various demands against Sullenberger, there remained due on the note a balance of $828, for which sum the claim was presented. Two grounds are urged to show that the foregoing circumstances take the case out of the statute.

1. It is said that the transactions mentioned constitute a mutual, open, and current account. But if we assume that this is so, the account was not between the parties to the note. There is no evidence that M. Drummond had any authority from the Probate Court that the estate of which he was executor should advance money to Sullenberger, or pay his debts, or buy his wheat, or act as his broker in selling hogs. And it does not appear that the estate did so. So far as the evidence showed, M. Drummond advanced his own money for the purposes mentioned, and acted individually in his purchase of the wheat and sale of the hogs. [551]His testimony is as follows: “ He was going away from Davisville temporarily, and was owing some to me and Liggett and to other persons. He delivered to me some hogs to sell for him and Liggett, and I had bought from him his wheat. I was to let him have some money then, which I did, and paid some debts for him.” There is not a word to show any dealing between Sullenberger and the estate of Drummond. The passage first above quoted amounts to nothing more than a permission from Sullenberger to M. Drummond to apply whatever balance should remain in his hands to the payment of the note due to the estate. We attach no importance to the statement of M. Drummond that the note was “ considered a part ” of the business transactions which he had with Sullenberger, or that it “ was understood to form a part of the indebtedness.”