Clark v. Van Amburgh

In the case of Morrow v. Morrow (12 Hun, 386), we held that the insertion in an inventory of a note, theretofore made by the executor to his testator, was a sufficient acknowledgment of the indebtedness by the executor to take the case out of the statute of limitations. In that case the inventory was verified by the executor in the manner required by law; that it was a true inventory of all the just claims of the deceased against the executor. In this case, the promissory notes held by the deceased against the defendant were not named in the inventory filed at all, but he inserted them at the foot of a copy of the inventory, and then inclosed the copy in a letter to his co-administrator, which letter was signed by him and contained this sentence: “ Dear Brother, inclosed I send a copy of the inventory taken yesterday.”

If the paper inclosed had been a copy of the inventory as made, then the case of Morrow v. Morrow would have been an authority for the plaintiff. The defendant, however, inserted these notes in the copy of the inventory, and then signed a writing which said it was a copy of the inventory. What did he mean by that ? Did he mean to say, I intend to have the inventory in this shape, and *559to have my two notes on it as a part of the assets of the estate of my intestate, and to acknowledge the existence of my indebtedness on these notes ? We think this must be held to be the legal effect of this act, otherwise Ms ■■ letter means nothing, so far as these notes are concerned, and that is not to be presumed. Contrary wise, it is better to presume that he meant to say, in effect, I -send you the inventory of property, by which I intend to be controlled in the settlement of this estate. It contains two notes of mine, and they are in existence and valid.

We think this declaration in writing to the administrator of the estate took the notes out of the statute, and that the plaintiff must have judgment on the submission, with costs.

Judgment for plaintiff on submitted case, with costs.