#### *Henry Cooper et al.*vs. *Ann Peyton, et al.*

An administrator cannot retain for a debt of hi% own, -which was barred by the statute of limitations at the death of his intestate.

*Before*DeSaussuee, Ch., *at Charleston, April,*1831.

The decree of his Honor, the presiding Chancellor, is as follows:

DeSaussuee, Ch. The bill was filed in this case for the distribution of the estate of the late Mrs. Ann Hutchinson. The rights of the parties claiming distributive shares are not disputed. The only point in controversy, is relative to a claim made on the estate of Mrs. Hutchinson by Mr. Charles Peyton, for a debt due by her, in her lifetime, to him and Ann Peyton, the administratrix. That debt, it is alleged, arose from her receiving a sum of money for them, which she never paid. Some of the distributees object to the payment of the demand, on the ground that it has not been sufficiently proved, and that, if it had been regularly proved, it was barred by the statute of limitations.

The case was referred to the Commissioner, who has made a clear report of all the facts — which report accompanies this decree. The proofs stated of the payment to Mrs. Hutchinson, are entirely satisfactory, but they were not taken in the regular manner by the Commissioner ; so that the advantage of a cross-examination has not been had by the distributees. If the demand should not be considered barred by the statute of limitations, the parties opposed to the payment of the claim will have a right, if they choose, to require the demand to be regularly proved under a commission. It seems that the demand comes from Ireland, by Mr. Charles Peyton, a resident there, on behalf of himself and Mrs. Ann Peyton, the administratrix, and the claim was made within the time prescribed by the Court for claims to be made. There is no doubt that demands brought in under such circumstances, are subject to all the rules appli*260cable to other claims against estates. They must be regularly proved, and if barred by the statute of limitations, may be rejected on that account. And the executor or administrator, would have the same power "as in common cases to admit a demand barred by statute, if it was believed just and unsatisfied.

In the case we are considering, the demand, comes from abroad, and the claim is of a peculiar nature, amounting *to*a trust. Great part of the money, according to the proofs, (assumed to be correct for the present,) was paid to Mrs. Ann Hutchinson, for the use and benefit of Charles Peyton and Ann Peyton. The last named person has since administered on the estate of Mrs. Ann Hutchinson. She could not sue herself, and she admits the debt notwithstanding the statute. The question now to be decided is, whether, under these circumstances, there is any thing in the case to take it out of the operation of the statute of limitations. It was learnedly argued by all the counsel. I shall not follow them in the argument, or in the numerous cases cited. It will be sufficient *to state*briefly *the*reasons on which my opinion is formed.

It is very certain, that the money paid to Mrs. Hutchinson, in the year 1816, for Charles Peyton and Ann Peyton, as assumed in the argument, was not a direct trust. It was a trust by implication, and the decided cases have settled, that the statute of limitations is applicable to such implied trusts.

And the time elapsed in this case, would operate as a bar, unless prevented by some other circumstances. The demand coming from abroad would not prevent the operation of the ■statute after the lapse of such a time; more especially as one of the claimants, Mrs. Ann *Peyton,*resided in this *country*in the house with Mrs. Hutchinson. The only remaining ground is, that Mrs. Ann Peyton was claimant and administratrix, as well as a distributee. She could not sue herself; and she could exercise, in her own case, her privilege of deciding, whether she would, as administratrix, take or refuse to take advantage of the statute as a bar to the demand. It appears to me it was peculiarly a case, in which she might refuse to apply that bar; *261not indeed to admit an unjust demand, but to refuse to apply the statute to a just debt. Of the justice and extent of the demand, she, however, is not the exclusive judge.

It is, therefore, ordered and decreed, that the claim in question be established in the regular way by commission, and full proof; and that, if established, the same be paid out of the estate of Mrs. Ann Hutchinson, but without interest till the filing óf the bill. The estate, then remaining, to be distributed according to law. Costs to be paid out of the estate.

From this decree, the plaintiffs appealed, and moved the Court, that the same be reversed.

The opinion of the Court was delivered by

Harper, J.

We understand the naked question to be submitted to us, and the plea to depend upon it, whether an administrator may retain for a debt of his own, which was barred by the statute of limitations at the death of his testator? The authorities seem to be clear, that against another creditor an executor is not bound to plead the statute. The only authority in favour of his power to retain for his o*wn debt in such case, is that referred to by Maddock, in his treatise on Chancery, 1 vol. p. 583: *Hopkinson*vs. *Leech,*decided May, 1819. It is said in the note, “ Leach was of opinion he might retain, but directed the opinion of a Court of law to be taken.” We are not acquainted with the circumstances of that case, and it can hardly be regarded as authority. The reasoning in the text of Maddock, seems unsatisfactory: that as the executor might have paid a debt to another, without pleading the statute, so he may retain for himself. That confidence is reposed in the executor, because as to others he represents the testator, and is not bound to take an advantage, which it would have been unconscientious for the testator himself to take. 'He is supposed to be disinterested, or if having any interest, it is to prevent the establishment of debts against the estate. But it would be against the whole spirit of our law, that confidence should be reposed in a man in relation to a matter, in which his own *262interest is concerned, and where there must be the utmost temptation to abuse that confidence. There would be continual inducement to fraud, by setting up stale demands, and such perhaps as had been actually satisfied: and administration might be often taken out for such purpose. The case *Ex parte Dewdney,*15 Ves. 479, may be authority to this purpose. That was a case where claims, against which the statute had run, were presented against the estate of a bankrupt. They were disallowed by the Chancellor. He says, *“*a commission of bankruptcy is nothing more than a substitution of the authority of the Lord Chancellor, enabling him to work out the payment of those creditors, who could by legal action, or equitable suit, have compelled payment, and that the objection upon the statute is competent to creditors, and may be sustained. I see no reason for holding that it is not competent to the bankrupt, to take this objection, and if he waves it, to creditors.” In that case, the creditors were the actual parties litigant. In this case, it is the distributees: against them the administrator’s demand must be established, and I have no doubt but that it is competent to them to take the objection.

The Chancellor’s decree must be therefore reversed, and the plea sustained.

Johnson and O’Neall, JJ., concurred.

*Decree reversed.*