¶1delivered the opinion of the court.
¶2The death of Mrs. Gibbs terminated the power of her husband, as such, to bind her separate estate, and her will does not empower him as executor to give a note. Therefore the action on the note is not maintainable against the executor.
¶3The indebtedness in all of its forms prior to the execution of the note sued on is barred by the lapse of four years and six months after the qualification of the executor. Code of 1871,§2155 (Code of 1880, § 2676). This code governed by virtue of.the provision that the limitation prescribed in it “ may be pleaded in any case where a bar has accrued under the provisions thei'eof,” § 2172. Besides, it is indisputable that the right of action, if any, against the estate of Mrs. Gibbs accrued under the, Code of 1871, since it appears that the claim is for a balance due for services in 1871, on which there was no right of action until the end of that year. Wherefore, in any point of view, the Code of 1857 had no application to the question of the statute of limitations.
¶4This view renders it unnecessary to consider any other question in the case.
¶5jReversed and remanded.