Gibbs v. Bunch
Gibbs v. Bunch
Opinion of the Court
delivered the opinion of the court.
The death of Mrs. Gibbs terminated the power of her husband, as such, to bind her separate estate, and her will does not empower him as executor to give a note. Therefore the action on the note is not maintainable against the executor.
The indebtedness in all of its forms prior to the execution of the note sued on is barred by the lapse of four years and six months after the qualification of the executor. Code of 1871,§2155 (Code of 1880, § 2676). This code governed by virtue of.the provision that the limitation prescribed in it “ may be pleaded in any case where a bar has accrued under the provisions thei'eof,” § 2172. Besides, it is indisputable that the right of action, if any, against the estate of Mrs. Gibbs accrued under the, Code of 1871, since it appears that the claim is for a balance due for services in 1871, on which there was no right of action until the end of that year. Wherefore, in any point of view, the Code of 1857 had no application to the question of the statute of limitations.
This view renders it unnecessary to consider any other question in the case.
jReversed and remanded.
Reference
- Full Case Name
- W. D. Gibbs v. T. C. Bunch
- Status
- Published
- Syllabus
- 1. Estate op Wipe. After death. Power of husband to bind. Under the Code of 1871, the death of the wife terminated the right of the husband, as such, to bind her separate estate. Nor could he, as her executor, bind her estate after her death by giving his individual note for a preexisting debt, unless so empowered by her will. 2. Limitation op Actions. Suits against executors. Section 2172 and $ 2155, Code of 1871 (Code of 18S0, ? 2676), applied. G-. gave his note to B. for services rendered as manager of his wife’s plantation during the year 1871. A few years afterward he took up this note and gave B. a new one, and in January, 1879, again renewed his note. In 1879 G.’s wife died, leaving a will making him her executor, and he qualified as such in August of that year. In January, 1881, G. again renewed his note. In April, 1884, B. instituted suit on this note against G. individually and as executor, and obtained judgment against the latter in both capacities. Held, that the indebtedness, in- all of its forms, prior to the execution of the note sued on, was barred, under $ 2155, Code of 1871 (Code of 1880, § 2676), which provides that all actions against executors must be brought within four years after they have qualified, and which, by virtue of $ 2172, “may be pleaded in any case where a bar has accrued under the provisions” of that code.