This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The death of a party after a right of action has once accrued,1 whether plaintiff2 or defendant,3 does not suspend the running of the statute of limitations. In case the plaintiff dies, it is the duty of those claiming under him to proceed at once to have an executor or administrator appointed to collect claims due to his estate, and accordingly it is their own fault if there is no party in existence capable of bringing suit.4 So if the defendant dies, persons having claims against his estate have it in their power in most states to have an administrator appointed against whom such claims can be presented, and their failure to cause such appointment to be made, is caused by their own negligence. Hence failure to appoint a personal representative does not extend the period of limitations in either case. So the death of a party to a suit eighteen days before the time fixed for taking an appeal expired, does not extend the time for taking such appeal though an administrator was not appointed for six months thereafter.5 If a cause of action accrues in favor of a decedent's estate after his death, it has been held that limitations does not begin to run until an administrator has been appointed.6 Thus insurance which should have been paid to the administrator of decedent was paid to another. Limitations was held not to run against the right to recover such money from such other person until an administrator was appointed.7 Even where leave of court is necessary to enable an action to be brought, omission to ask such leave does not prevent limitations from running from the time when such leave might have been asked, and if it had been obtained, suit might have been brought.8 Thus even if leave of court to bring an action is necessary, limitations runs on a judgment from its rendition,9 and on an administrator's bond from the date of the final decree of distribution.10 By statute in some jurisdictions the statute of limitations is suspended on the death of the debtor, either for a fixed period of time,11 or till an administrator is appointed.12
9 Davis v. Coblens, 174 U. S. 719. And for similar facts see Pattern v. Dixon, 105 Tenn. 97; 58 S. W. 299.
10 Thorp v. Raymond, 16 How. (U. S.) 247.
11 Meyer v. Christopher, 176 Mo. 580; 75 S. W. 750; Causey v. Snow, 122 N. C. 326; 29 S. E. 359.
12 Sims v. Everhardt, 102 U. S. 300; Sims v. Bardoner, 86 Ind. 87; 44 Am. Rep. 263.
1 Davis v. Hart, 123 Cal. 384; 55 Pae. 1060; Hardy v. Riddle, 24 Neb.
670; 39 N. W. 841; Granger v. Granger, 6 Ohio 35; Rowan v. Chenoweth, 49 W. Va. 287; 87 Am. St. Rep. 796; 38 S. E. 544.
2 Mereness v. Bank, 112 la. 11; 84 Am. St. Rep. 318; 83 N. W. 711; Hill v. Townley, 45 Minn. 167; 47 ' N. W. 653.
3 McMillan v. Hayward, 94 Cal. 357; 29 Pac. 774.
4 Rowan v. Chenoweth, 49 W. Va. 287; 87 Am. St. Rep. 796; 38 S. E. 544.