¶1(dissenting):
¶2The section of the law construed is as follows: “3STo acknowledgment or promise of any personal representative of a decedent, *35or by one of two or more joint contractors, shall charge the estate of such decedent, or charge any other of such contractors in any case, in which, but for such acknowledgment or promise, the decedent’s estate or another contractor could have been protected under the sixth section of this chapter.” The first point of the syllabus construing this section is as follows:
"An executor or administrator cannot make a new promise to pay a debt of his decedent, either before or after the debt has been barred by the statute of limitations.”
¶3This construction renders wholly meaningless the following words or clause, "in which, but for such acknowledgment .or promise the decedent’s estate … could have been protected under the sixth section of this chapter,” and amends the section so as to make it read: “iSTo acknowledgment of any personal representative of a decedent shall charge the estate of such decedent in any case.” The power of construction is certainly great when at one fell swoop, it can eliminate a complete qualifying clause from an enactment of the legislature. That this has been done in this case there can be no question.' The effect of so doing is simply to deprive the personal representative of a power heretofore vested in him, both by common and statute law for the protection of the decedent’s estate, to prevent unnecessary suits against it, and its devastation by the costs of useless litigation. This power was of no benefit to the creditor whose debt was in danger, for the courts are open to him, and by suit against both heir and personal representative he can easily prevent the bar of the statute though by so doing he mulct the estate with costs which by proper arrangement with the personal representative heretofore could have been avoided. But now no creditor dare wait or hesitate if his debt is threatened by the bar of the statute. He must bring his suits, one at law against the personal representative and the other in equity against the heir for the promises of the personal representative though full handed with assets, are worthless either as against himself or the estate. Being bound to plead the statute to save the estate he would not be liable individually for the reason that his promise would be without consideration, as the estate would not' be liable for the debt if paid by him after its bar, and the law as promulgated by the court makes his promise wholly void, .that is, neither binding on himself or the estate, it matters not what may be the condition *36of the assets. Heither can a testator clothe his executors with power to make arrangement with his creditors for the benefit of his estate if the statute of limitations is involved. Creditors must sue to save themselves, and the executor is powerless to protect the estate entrusted to his care from unnecessary costs. The holding of the court makes suits against the personal representative, heirs or devisees absolutely necessary to prevent the running of tire statute. 3STo such tiring was contemplated by the lawmakers and in using the language, now rendered meaningless, “in which but for such acknowledgment or .promise the decedent’s estate could have been protected under the sixth section of this chapter,” they did so advisedly, with the plain import that if the personal representative could not otherwise protect the estate from a just charge that his promise to pay’ by which suit was'delayed' and the estate protected would operate to prevent the running of the statute.
¶4And why should not such promise do so ? The estate is subject to no greater liability by reason thereof, but unnecessary costs and expenses are saved to it. But it'is said it may delay the setlement of the estate. Hot necessarily so, unless those interested therein desire such delay for their own and the estate’s benefit. The creditor is in no wise benefitted by the delay. He extends the credit for the estate’s benefit, not his own. Také even in the present case, if the creditor had sued promptly, would the estate have been any better off? And because in some instances the power may have been abused, that is no reason why it should be denied to all personal representatives, when it is so necessary for the proper and judicious administration of estates. The section under consideration was enacted for the purpose of rendering the preceding section, 8, chapter 101, harmonious with section 5, chapter 87, Code, wherein it provides that if any personal representative shall pay any debt, the recovery of which could be prevented by reason of illegality of consideration, lapse of time or by any other fact within his knowledge, no credit shall be given him therefor, and to destroy any inference therefrom that although he could not pay, yet being the legal representative of his decedent he might exercise the right of such decedent to renew a debt already barred by the statute by a promise in writing. It is strange that this section should have been several times re-enacted, carried through various editions of the *37Code and construed by the Supreme Court of the State of Virginia with its grammatical construction unchanged., and yet the discovery was never made that the law makers, including the revisors of 1849, had used the wrong tense to express their meaning until the present term of this Court, although if a mistake, it changes the entire meaning of the section as is perfectly apparent to any school child. Grammar is not such a new study that such a mistake so vital to its meaning could be introduced into a statute of importance and carried through so many editions of the acts and code for more than half a century without being noticed by some legal light, although the grammarians of the past may not compare with those of the present. It is not a mistake. The language was used advisedly. Why construe its plain meaning away? It is said it is necessary to remedy the evil the legislature had in view. What evil? The right of a personal representative to protect and preserve the estate. Such evils exist only in dreams. The personal representative has the power to stop the running of the statute as to the personal property by confession of judgment and as to the real estate by instituting a suit in equity. But these legal proceedings will entail costs on the estate. Why then should he not have the power to do the same thing by a proper promise in writing? Why should not such power extend to the real assets as well as personal? Why should he or the creditors be forced into legal proceedings when they could be so easily avoided without detriment and to the benefit of the estate ? The only answer is that it might enable him to unduly postpone the settlement of the estate. Those interested under the numerous statutory safeguards could easily prevent such a result, but if for the benefit of the estate and necessary to prevent sacrifice thereof, they ought not to want to prevent it. Such an argument would never have been advanced had not a creditor been duped by false promises into' waiting until his debt had been barred by the statute, and now it is not made for the protection of estates generally, but simply for the justification of bad* faith in the present instance. Because one estate is enabled to escape a just debt, many estates are made to suffer thereby, and all personal representatives are shorn of the power they heretofore possessed for the proper discharge of their administrative duties.
¶5Read the statute again: “No acknowledgment or promise of *38any personal representative of a decedent shall charge the estate of such decedent in an]' case, in which, hut for the acknowledgment or promise, the dececlenfs estate could have leen protected under the sixth section of this chapter
¶6Protected by whom? By the administrator. If he can protect it without a new promise, it is his duty to do so. But if he cannot protect it without a new promise, it is his duty to make the promise. The limiting elau.se rejected by the majority of the court necessarily implies that there are acknowledgments and promises of personal representatives that will charge the estate, otherwise it would have been omitted just as the Court now expunges it. What are these acknowledgments and promises of the personal representative that will hind ? Such as are made by them when they cannot otherwise protect the estate from sacrifice or loss. Why does such acknowledgment or promise bind the estate? Because the estate gets the benefit thereof, and is protected thereby. The creditor refrains from suit, and extends the time to save cost, expense to and sacrifice of the estate. This section was intended merely as a qualification upon the preceding section, and includes no other subject except the- bar of the statute of limitations. There are but two kinds of promises within its purview, both of which are provided for directly or by plain implication. One is where the debt is barred by'limitation at the time of the promise, and the other is where it is not so barred. In the one instance the personal representative, can and is bound to protect the estate and a promise made by him contrary thereto is void. In the other, he cannot protect the estate without such promise, and it is recognized as valid and binding because of indulgence extended to the estate. Otherwise one creditor being forced to bring- suit to avoid the statute might bring the estate into disrepute and precipitate an avalanche of suits against it, involving much needless cost and expense. It was plainly the intention of the revisors of 1849, and of each succeeding legislature down to the present time to preserve to the personal representative the power to protect the whole estate, both real and personal assets, by such binding promise in writing as was pecessary for this purpose, until such assets could be made legally and properly available for the payment of debts. The protection of the real estate referred to by the revisors was not the real'assets, but such portion of the real estate as had passed *39into the hands of an innocent purchaser for value, without notice, under section 5, chapter 86, Code. All other assets were to' be subject to the protecting power of the personal representative.. Without being guilty of redundancy they expressed this intention in the section under consideration as plainly as it is possible-for language to express it. It is true they might have added the-further clause, “But in any case in which such estate cannot be-protected without such promise in writing, the same shall be w valid charge thereon.” This would be unnesessary repetifem., for the same meaning already exists by necessary implication,, and it might be held that the word “protected” referred to the time of the plea, and not to the time the promise was made, and-if at the time of the plea, the debt was not barred, the writing would not be invalid or it might be held that the clause was sur-plusage and did not change the meaning as now construed. Do legislation can be armored against the ruthless club of judicial construction, wielded by-willing hands. My conclusion is that as to a debt -not barred by the statute of limitations the promise of a personal -representative, made for the purpose of protecting the estate against unnecessary and premature suits, will prevent the running of the statute and make such debt a proper charge against the assets both real and personal, except such portion of the real estate as may have been conveyed by an heir or devisee to an innocent purchaser for value without notice, as provided in •section 5, chapter 86, Code. In so far as Judge McWi-ioRtee's opinion is consistent with this conclusion, I concur with him, and in so far as Judge Beaxxon^s opinion conflicts therewith, I dissent.