Langham v. Baker. himself for payment of testator's debts, after having exhausted the personalty. The answer denies that anything was due the executor for debts of the estate paid by him, over and above the assets which came, or should have come, to his hands, and denies his right to the relief sought. The answer is filed also as a cross-bill, and seeks to charge the executor with a devastavit for paying debts clearly barred by the statute of two years. Upon the pleadings and proof, the Chancellor dismissed the cross-bill, and gave relief upon the original bill. We are of opinion that the Chancellor's decree is erroneous in allowing claims in favor of the executor paid by him more than two years after the 1st of January, 1869. The statute of two years formed a complete defense to all claims not sued for before that time, unless the executor had requested delay for a definite time, or until the happening of some future event, and he was bound to plead it. 4 Heis., 258; 9 Yer., 434; 2 Hum., 566; 11 Hum., 515; 1 Heis., 389. Although it was said in the 2 Hum. case, that an executor seeking to exonerate himself from the claims of distributees, will not be held to such strict proof as would be required in a contest between him and a creditor, yet it has not been held that a general request for delay, from time to time, or an assurance that the debt is good, will save the operation of the statute of two years. Such were the requests in this Langham v. Baker. case, and when the statute is complete, it is a devastavit in the executor or administrator to pay such barred debt, for which he will be held liable. The Chancellor's decree will be reversed, and the cause will be remanded and an account taken of the several debts paid after the 1st of January, 1869, and no credit will be allowed for such debts to the executor. But valid debts paid previous to that time, the executor will be credited with. Such debts paid by him, over and above assets received, if any, would not be barred by the statute of two years, as against his claim for payments beyond assets received, if paid within two years from January 1, 1867-that is, previous to January 1, 1869. The Chancellor allowed $100 compensation to the executor. This sum may or may not be too large, as the amount of the estate does not very clearly appear. There is nothing in the record which seems to entitle the executor to more than the usual compensation of five per cent. Nor is there anything to justify the charging of the executor with the debt on E. M. Baker, which was lost by reason of his insol vency. Langham will pay the costs in this court, and the costs below will be hereafter adjudged by the Chancellor. Voorhies v. Granberry. WM. M. VOORHIES, JR., v. JAS. M. GRANBERRY. MARRIED WOMEN. Powers of. Where the wife's estate is not what is technically called a "separate estate," but is an estate conveyed to her by deed in fee simple without restriction or limitations, she may, with her husband, convey her land in trust to secure a debt of the husband. The act of 1869-70 does not affect such a case. Case cited: Bayliss v. Williams, 6 Col., 449. Code cited: Sec. 2486 a, b, c, d, e and f. DEADERICK, C. J., delivered the opinion of the court. This is an action of ejectment, begun in the Circuit Court of Maury county, by Granberry against Voorhies, and, upon an agreed state of facts, submitted to the determination of the Judge, without the intervention of a jury. The facts are, that Granberry loaned Voorhies $7,000, for which he took his note, and Voorhies and his wife executed a deed of trust to James H. Thomas for a tract of land belonging to the wife to secure the note. The deed was acknowledged by the husband, and privy examination of the wife had, in due form, and was registered. Voorhies v. Granberry. The note was not paid at maturity, and the land was sold, in conformity with the provisions of the trust deed, and Granberry became the purchaser. He took a deed of conveyance from the trustee, and instituted his action of ejectment to recover the possession of the land. The plaintiff in error maintains that the wife had no power to convey her land in a joint deed with her husband to secure his debt, and this is the question submitted to the court, with the agreement that if the court was of opinion that she had such rights judgment should be rendered for the plaintiff below, otherwise for the defendant. The court adjudged the question in favor of the plaintiff below, and the defendant appealed to this court. This precise question was adjudged by this court at Brownsville at its April term, 1869, when it was held that the wife may unite with her husband in the execution of a mortgage to secure money loaned to her husband (6 Col., 449), and at the last term at Jackson the same thing was held. These 2486 c, We do not think sec. 2486 a, b, c, d, e, f of the Code affect the questions arising in this case. several sections of the act of 1869-70, except being the third section of the act by the sec. 2486 f of the Code, are restricted in their application to married women, who have abandoned, or been abandoned by, their husbands, and to cases of insanity of the husband, or non-cohabitation between the parties. The sec. 2486 c gives to "married women owning a 45-VOL. 5. Voorhies v. Granberry. separate estate settled upon them, and for their separate use, the power of disposition by deed, or will, or otherwise," where such power is not expressly withheld by the deed or will under which they take the property. This section seems to have been intended to settle the question, as to which the authorities are somewhat conflicting that is, whether, when a married woman takes a conveyance of separate estate, there being no words either restricting or authorizing her to convey, she may do so; some cases holding that she cannot convey, because there is in the conveyance to her no power to do so; others, that she may, because there is no prohibition against the exercise of such power. But that question does not does not arise in this case. The wife's estate is not, in this case, what is technically called a "separate estate," but is an estate conveyed to her by deed in fee simple, without restrictions or limitations. The judgment of the Circuit Judge was in favor of plaintiff below, and we affirm his judgment. |