Traweek v. Kelly

Citations

• 60 Miss. 652

Syllabus

<p>Limitation or Actions. Judgment in favor of executors. Suit by legatees. Gase in judgment.</p> <p>T. died in 1864, having made a last will and testament, and leaving several children as his devisees and legatees. On the 20th of October, 1886, the executors of T.’s will recovered a judgment in the Circuit Court against K. Several executions were issued on the judgment, and all were returned “ nulla bona.” The administration of the estate was closed and the executors discharged on the 28th of September, 1875. On the 12th of December, 1881, the legatees filed a bill in chancery to subject to the judgment against K. certain lands which it was alleged he had fraudulently conveyed to his wife. The bill discloses the facts, (1) that at the date of the testator’s death, one of the legatees was of full legal age, and under no disability; (2) that when the judgment was rendered all of the legatees were under the disability of infancy or coverture; and (3) that one of the legatees had attained her majority and was under no disability on the 2d of April, 1867, when the Statute of Limitations, which had been suspended during the war, began to run again. The defendants demurred to the bill on the ground that the complainant’s right of action was barred by the Statute of Limitations. The complainants claim that the statute did not begin to run against their cause of action till the rendition of the judgment; while the defendants contend that it began to run from the death of the testator, or on the 2d of April, 1867. Held, that the right of action was conferred by the will, and, ordinarily, the Statute of Limitations would have begun to run from the death of the testator, assuming that the debt had matured at the time of the testator’s death; but, as the statute was then suspended, it did not begin to run against the cause of action till the 2d of April, 1867, when it again became operative. And, as the right of the complainants was joint, and not joint and several, and one'of