McKnight v. Calhoun

Disseoting Opinion. Todd, J. I concur in the opinion just read in every respect, save in that part of it overruling the plea of prescription interposed by Mrs. Lane to the demand against her as heir of her mother, Mary S. Calhoun, and think that her plea, to this extent, should have been sustained. More than ten years had elapsed from the death of Meredith Calhoun and the opening of his succession, to which the debt was alleged to be due, and also, more than ten years from the death of Mrs. Calhoun, whose succession was charged with owing the debt, and I cannot see that prescription as to Mrs. Lane, co-heir of the latter succession, was suspended from any cause recognized by law. There was not, in my opinion, at any time during this prescriptible term any legal obstacle in the way of a suit against her for her share or portion of the alleged debt. The succession of Meredith Calhoun was regularly opened, an administrator appointed to it, whose right and duty it was as its legal representative to prosecute all claims in favor of it, and who could have been compelled to do so, if necessary, by creditors and other parties in interest. The mere fact that the administrator might have felt a reluctance to sue on this claim for reasons and apprehensions personal to himself, should not and did not, in my opinion, have the slightest bearing on the rights of Mrs. Lane, with respect to the prescription of this debt. It was a matter of no concern to her, brought about by no fault of hers and by which she could not be affected. *412 I, therefore, dissent from this part of the decree and the reasons adduced in support of it. Fenner, J. concurs in this opinion.