Novem'r Johnst'n, trustee, &c. V. which, by the provisions of "the stay law," would expire 1877. on the 1st of January, 1869, shall be extended till the 1st of July, 1869; and if on or before the last named day the debtor shall have paid all the interest then due, execution should be further stayed until other orders from headquarters. All the subsequent orders were to the Wilson's same effect, simply continuing the stay of execution. All & als of them were subject to certain conditions with respect to the payment of interest, and unless these conditions. were strictly complied with, the debtor was not entitled to the stay of execution. The military authorities in issuing these orders did not undertake or profess to extend all the provisions of the stay law; but only so much of it as related to executions and the forced sales of property. This court, in all the cases before it involving the construction of that act, has decided that the statute of limitations was suspended until the 1st of January, 1869; not, however, because the creditor was prevented fromsuing out execution, but because the seventh section of the act had provided that "the period during which the act should remain in force shall be excluded from the computation of the time within which, by the operation of any statute or rule of law, it might be necessary to commence any proceeding to preserve or prevent the loss of any right or remedy." If the legislature had reenacted and extended every provision of the stay law omitting this section, it cannot be questioned that the result would have been the complete restoration of the statute of limitations on the 1st of January, 1869. The military orders do not profess to continue the seventh section. They make no sort of reference to it. Their whole object was to prevent forced sales of property after the stay law had expired by its own limitation until relief could be afforded by the legislature. It is not to be sup adm'r Novem'r Johnst'n, trustee, V. 1877. posed that the military officers then commanding in VirTerm. ginia designed to do more than provide for an emergency, an extraordinary condition of affairs, which demanded immediate action; and this construction can be placed upon &c. their conduct without doing violence to their language. Wilson's It is unnecessary therefore to decide a question, sometimes suggested, whether the courts would now recognize as valid the order of any military commander suspending the statute of limitations for a longer period than that prescribed by the legislature. No such question arises here, and it need not be considered. adm'r & als. My opinion is, as stated in previous cases, that the 1st of January, 1869, is to be regarded as the period at which the stay law ceased to operate and the statute of limitations again commenced to operate in Virginia. The main question in this case is, whether the provision in the will of the testator charging his real estate with the payment of his debts prevented the running of the statute of limitations as to the debts in controversy? Prior to the act hereafter mentioned, it was settled ̧that a devise of real estate for the payment of debts, or a charge upon it, which was in effect the same thing, created a trust as to the proceeds of such real estate for the payment of all those debts which were not barred at the time of the testator's death; and after that event the statute did not so run as to affect the claims of such creditors upon the proceeds. Chandler's ex'x v. Neal's cx'or, 2 Hen. & Mun. 124. In some of the earlier cases it was held that a devise for the payment of debts had the effect of reviving debts already barred by limitation; but this doctrine has been long since exploded, and it is now held that such a devise does not take a debt out of the operation of the statute. Bureke v. Jones, 2 Ves. & Beam. 275; 7 John. Ch. R. 293; Tazewell v. Whittle's adm'r, 13 Gratt. 329; Baylor's lessee v. Dejarnette, 13 Gratt. 152; 1 Rob. Prac. 346. . 1877. Novem'r Term. Johnst'n, &c. V. adm'r In this state of the law the legislature passed the act of March 17th, 1842, (Acts of 1841 and '42, page 55), trustee," the first section of which provides that where any person shall die seized of any real estate which he shall not Wilson's by his will have charged with or devised subject to the &als. payment of his debts, the same shall be assets to be administered in courts of equity ratably for the payment of all the just debts of such person, as well debts due on simple contract as on specialty, subject, however, to a proviso that no debt should be charged on the realty which was not evidenced by writing signed by the debtor or his agent. The second section provided that no testamentary provision charging the debts of the testator generally upon his real estate shall be held to prevent the operation of the statute of limitations against such debts, unless it shall plainly appear to be the intent of such provision that the said statute shall be no bar to their recovery. What is the meaning of this latter section? Does it apply to all the debts of the testator charged upon his real estate, or is it to be confined to such debts as are barred by the limitation at the time of his death? Prior to the enactment of the first section, which must be considered along with the second, the real estate of a person dying intestate was liable only for debts of record and debts evidenced by bond in which the heir was bound. The statute just cited abolishes this rule of the common law. It gives effect to a devise for the payment of debts; but when there is no such devise the real estate is to be applied pro rata to all the just debts of the decedent, provided they are evidenced by writing. Subject to this single qualification the act makes the real estate liable to the debts of the decedent in the same manner and to the VOL. XXIX-49 Novem'r 1877. same extent as under a devise for the payment of debts Term. generally. In the one case to be administered, perhaps, as legal, and in the other as equitable assets. Johnst'n, trustee, The legislature having thus placed upon the same &c. footing, so far as the real estate was concerned, debts proWilson's vided for by the testator and debts provided for by the V. adm'r &als, statute, by the second section of the act already cited applied to both the same limitation, unless the testator plainly indicated a different intention. The testator, in making his real estate assets for the payment of his debts generally, was doing no more than the statute effected. without the devise; it was proper, therefore, to apply to those debts the same rule as to all other debts in the administration of the real assets. And this was by way of analogy to the principle governing a bequest of the personal estate for the payment of debts; which was never regarded as creating a trust, or as preventing the running of the statute of limitations. The reason is that such a bequest does no more than the law declares, and that is, that the personal estate shall be assets for the payment of debts. It is very true that the act of 1842 excludes debts due by account, whereas a devise for the payment of debts generally would embrace them; but this was only an additional reason for applying the statute of limitations. If we turn to the revisal of 1849, we shall find abundant confirmation of this view. The phraseology of the second section of the act of 1842 is materially changed, and is incorporated in the chapter on limitations. It is as follows: "No provision in the will of any testator devising his real estate or any part thereof subject to the payment of his debts, shall prevent this chapter from operating against such debts, unless it plainly appear to be the testator's intention that it shall so operate." Code of 1849, ch. 149, § 9. Novem'r Johnst'n, trustee, This is in effect a legislative declaration that all the 1877. provisions of that chapter in regard to the limitation of Term. actions shall apply in favor of the testator's debts, although there is a devise of real estate for their payment, unless it plainly appear that the testator otherwise intended. The devise is not of itself sufficient evidence of the intent. Wilson's adm'r It must appear from some provision or phrase independent of the devise, which indicates the purpose of the testator. When the testator specifies the particular debts he means to be paid out of his realty, but little difficulty ean arise with respect to his intention. It may be safely presumed these debts have not been paid, and that it was his purpose they should be paid, at all events, without regard to the limitation. But when the charge is for the payment of debts generally, the testator has no reference to any particular debt. It is not to be presumed his intention was to provide for an indefinite extension of time in favor of all who might assert claims against his estate. The legislature, at the revisal of 1849, changed also the first section of the act of 1842. It abolished the distinction between debts evidenced by writing, and debts not in writing. It made the real estate assets for the payment of all the debts of the decedent, whether due by bond, note, or open account: so that if we hold that the statute has no application to debts which were not barred at the period of the testator's death, we establish a rule which protracts indifinitely the settlement of estates in favor of all classes of creditors. I think the legislature in declaring that a devise for the payment of debts shall not prevent the statutes of limitation from operating against such debts, has plainly manifested the intention to apply the rule to all debts of the testator, whether barred or not at the time of his death. &c. V. & als. |