Dempsey v. McNabb

Alvey, C. J., delivered the opinion of the Court. This action was brought by the appellant, as administratrix of her sister, Bridget Dempsey, deceased, against the appellee, executor of Miles Crow, deceased, for wages, alleged to have been due the appellant’s intestate at the time of her death; and for money, alleged to have been received by Miles Crow after the death of the plaintiff’s intestate, as the proceeds of certain stock in a building association, belonging to the intestate at the time of her death. The declaration contains five counts; hut only the second and fourth counts state the causes of action upon which recovery is sought. The second count is for work and labor performed by the plaintiff’s intestate; and the fourth count is for money had and received hy Miles Crow in his life-time, for the use of the plaintiff as administratrix of Bridget Dempsey, deceased.

The defendant pleaded seven pleas. The first and second of which were, that neither the decedent, Miles Crow, nor the defendant, as his executor, was indebted as alleged, nor did either of them promise as alleged. Third, that Miles Crow, in his life-time, paid and discharged the plaintiff’s claim to Bridget Dempsey in her life-time. Fourth, that the alleged causes of action did not, nor did either of them, accrue within three years before suit brought.

Fifth and sixth, set-off; and seventh, that after the death of Bridget Dempsey, Miles Crow, in his life-time, paid her funeral expenses, doctor’s bills, and other just debts to an amount greater than plaintiff’s claim. A bill of particulars was filed with the pleas, whereby the estate of Bridget Dempsey is charged with money paid for coffin, and for serving funeral, $80, and for money paid for medical attendance on the deceased, $154. Issues were taken on the pleas, and trial thereof ⁴³⁷ resulted in verdict and judgment for the defendant, and the plaintiff has appealed. It appears that Bridget Dempsey, the plaintiff’s intestate, went to live with her cousin, Miles Grow, in the year 1866, and remained a member of his family until she died, on the 8th of August, 1885.

During the time that she so lived with her cousin she performed valuable services for him, in cooking and taking care of his household affairs; hut was always treated as a member of his family. That, in the winter of 1884-5, she was very delicate, and from April to the time of her death she was in bed, unable to do any service, but had to be taken care of. It also appears that, on the 29th of September, 1885, after the death of the plaintiff’s intestate, Miles Crow, without administration, but simply professing to act as the next friend of his deceased cousin, and “on behalf of any heirs’’ she might have, received of the Darlington Mutual Building Association, the sum of $141.58, the value of two shares of stock held in that association by the deceased at . the time of her death. This is the sum of money sought to be recovered under the fourth count of the declaration.

Miles Crow died in the year 1887, leaving a will, and the defendant qualified as his executor. The plaintiff, the sister of Bridget Dempsey, deceased, obtained letters of administration upon the estate of her intestate, in the year, 1888, and, on the 1st of September, 1888, this suit was brought. There is no evidence in the case to indicate in the slightest degree the terms upon which Bridget Dempsey rendered service to Miles Grow. Whether there was a yearly, monthly, or weekly hiring, or an indefinite hiring terminable at the will of either party, or any hiring at all, does not appear.

It is simply stated that she lived in the family and rendered valuable services, until she was taken sick and became unable to work, some months ⁴³⁸ before her death. If the claim for services-be founded simply upon an implied obligation to pay for services rendered, that obligation accrued as the services were performed, and became an existing’ debt payable in prce,senti, and therefore due in the life-time of the plaintiff's intestate; and consequently the Statute of Limitations commenced to run against such claim from the time the right of action accrued. And that being so, the principle is well settled, that when the Statute of Limitations once begins to run, no subsequent circumstances will arrest its operation; but it does not begin to operate until there is a person in esse competent to sue after the right of action accrues. Ruff’s Adm’r d. b. n. vs. Bull, 7 H. & J., 14 ; Haslett’s Adm’r d. b. n. vs. Glenn, lb., 17; Rockwell vs. Young, 60 Md., 563 .

Here, so far as the claim for services is involved, the Statute of Limitations commenced to run in the life-time of the plaintiff's intestate, and became a complete bar before suit brought; and as there is nothing in the evidence to remove the bar, there was no error committed by the Court below in rejecting the first, third, fourth and fifth of the plaintiff's prayers, for the reason that they sought to exclude or ignored the bar of the Statute. Nor was there any error in granting the first prayer of the defehdant; but we think there was error committed in refusing to grant the second prayer of the plaintiff, and in granting the sixth prayer of the defendant. These latter prayers had reference to the money received by the defendant's testator from the building association, sometime after the death of the plaintiff's intestate; and by the Court's ruling on these prayers the plaintiff was denied the right to recover in this action the money so received. By the sixth prayer of the defendant the jury were instructed that if they believed that the defendant's testator, not being the personal representative of Bridget Dempsey, assumed, after her death, to collect moneys be ⁴³⁹ longing to her estate, still he cannot he charged for the same in this form of action, and under the pleadings in this case.