The statute prescribes a fixed time for set tling estates within which the executor or administrator cannot be sued, or compelled to file an account, unless he waives the right; Moses v. Jones, 2 Nott & McC. (S. C.) 259; Baggott v. Boulger, 2 Duer (N. Y.) 160. If he makes payments erroneously, supposing the estate to be solvent, he may recover them, it being a mistake of fact ; Walker v. Bradley, 3 Pick. (Mass.) 261; Swope v. Chambers, 2 Gratt. (Va.) 319.
As to whether an executor or administra tor is bound to plead the statute of limita tion, the decisions are not uniform. That he is not bound to do so is held in Hodgdon v. White, 11 N. H. 208 ; Wiggins v. Lovering's Adm'r, 9 Mo. 262; Semmes v. Magruder, 10 Md. 242; Batson v. Murrell, 10 Humph.. (Tenn.) 301, 51 Am. Dec. 707; Conway's Ex'r v. Reyburn's Ex'rs, 22 Ark. 290 ; Cham bers v. Fennemore's Adm'r, 4 Harr. (Del.) 368; Appeal of Ritter, 23 Pa. 95 ; Barnawell v. Smith, 58 N. C. 168; Woods v. Irwin, 141 Pa. 278, 21 Atl. 603, 23 Aril. St. Rep. 282; In re Baumhover's Estate, 151 Ia. 146, 130 N. W. 817 ; but a different rule applies when the personal estate is insufficient to pay the debts and a resort to the realty is necessary; Pollard v. Scears' Adm'r; 28 Ala. 484, 65 Am. Dec. 364. That it is his duty to plead the statute is held in Patterson v. Cobb, 4 Fla. 481 (and if he does• not he is liable for Et devastavit); Tunstall v. 'ollard's Adm'r, 11 Leigh (Va.) 1; Matter of Milligan's Estate, 112 App. Div. 373, 98 N. Y. Supp. 480. But the executor was held bound by a waiver of the statute contained in the will; Glassell v. Glassell, 147 Cal. 510, 82 Pac. 42. If one co-admini6trator declines to plead it, the oth er may do so ; Scull v. Wallace's Ex'rs, 15 S. & R. (Pa.) 231, and if the administrator does not plead it, the next of kin may do so ; In re Clarke's Estate, 1 Phila. (Pa.) 356; or a creditor interested in the estate; Smith v. Pattie, 81 Va. 654. The bar of the statute having attached to a claim against an es tate, it cannot be waived by an acknowledg ment of the debt by the personal representa tive; Lee's Adm'r v. Downey, 68 Ala. 98; Vrooman v. Li Po Tai, 113 Cal. 302, 45 Pac. 470; Rurnett v. Noble, 5 Redf. Sur. (N. Y.) 69; Seig v. Acord's Ex'r, 21 Gratt. (Va.) 365, 8 Am. Rep. 605. And the executor or adminis trator cannot waive the statute as against a claim in his own favor ; Grinnell v. Bax
ter, 17 Pick. (Mass.) 383; rn re Brown's Es tate, 77 Misc. 507, 137 N. Y. Supp. 978; Clay ton v. Dinwoodey, 33 Utah 251, 93 Pac. 723, 14 Ann. Cas. 926; or the next of kin may set in up ; Willcox v. Smith, 26 Barb. (N. Y.) 316. He is, in some states, chargeable with interest, first, when he receives it upon assets put out at interest'; second, when he uses them himself ; third, when he has large sums paid him which he ought to have put out at interest ; Griswold v. Chandler, 5 N. H. 497; Wyman v. Hubbard, 13 Mass. 232; but he is not liable where he has funds which he holds pending legal proceedings to deter mine the rights of the remaindermen; In re Howard's Estate, 3 Misc. 170, 23 N. Y. Supp. 836. In some cases of need, as to relieve an estate from sale by a mortgagee, he may lend the estate money and charge interest thereon; Jennison v. Hapgood, 10 Pick. (Mass.) 77. The widow's suppbrt is usually decreed by the judge. But the administra tor is not liable for the education of infant children, or for mourning-apparel for rela tives and friends of the deceased; Johnson v. Corbett, 11 Paige Ch. (N. Y.) 265; Appeal of Flintham, 11 S. & R. (Pa.) 16.
The liability is in general measured by the amount of assets. On his contracts he may render himself liable personally, or as ad ministrator merely, according to the terms of the contract which he makes; 7 B. & C. 450; Murrell v. Wright, 78 Tex. 519, 15 S. W. 156. But to make him liable personally for con tracts about the estate, a valid consideration must be shown ; 3 Sim. 543 ; 2 Brod. & B. 460. And, in general, assets or forbearance will form the only consideration ; 5 My. & C. 71; Bank of Troy v. Topping & Holme, 13 Wend. (N. Y.) 557. But a bond of itself imports consideration ; and hence a bond giv en by administrators to submit to arbitra tion is binding upon them personally; Ten Eyck v. Vanderpoel, 8 Johns. (N. Y.) 120; Robinson v. Lane, 14 Smedes & M. (Miss.) 161. He may compromise a suit brought for the widow and next of kin, for the death of the intestate; Washington v. R. Co., 136 III. 49, 26 N. E. 653. In general, he is not liable when he has acted in good faith, and with that degree of caution which prudent men exhibit in the conduct of their own affairs; In re Bosio's Estate, 2 Ashm. (Pa.) 437.