Foulk against Brown, 2 Watts 209

The opinion of the Court was delivered by Sergeant, J. The first error assigned is, that the court erred in sustaining the appeal of the defendant, entered without oath or bail. The appeal was entered in this manner under the proviso in the fourteenth

section of the act of the 20th of March 1810, that where executors or administrators may be the party appellant, they shall have an appeal as is by law allowed in other cases. The construction of this proviso has been, that they may enter their appeal without oath, without payment of costs, and without recognizance in the natureof special bail. Insurance Company of Pennsylvania v. Hewes, 5 Binn. 608.

But the plaintiff contends that the proviso applies only where the executor is sued as such, and not where the claim is against him personally : and that this action for a portion of the residuary bequests under the will, is against the defendant personally, and not as executor. It is certain that a distinction prevails in many important respects, between suits brought by or against executors in their individual and their representative capacities.

And if the suit were clearly against the defendant in the former character, there would be great reason why he should not be permitted to avail himself of the privilege of appealing without a compliance with the usual terms. It seems to have been thought in Durdon v. Gaskill, 2 Yeates 268, that an action for a legacy could not be brought against an executor individually; but in Clarke v. Herring, 5 Binn. 33, it was decided that it might. The declaration in the' latter case was a special assumpsit, alleging a promise to pay in consideration of assets having come to his hands. But in Morrow v.

Brenizer, 2 Rawle, it was decided, that assumpsit for money had and received would lie against an executor personally for the plaintiff’s share of a residuary bequest of personal estate, and proceeds of real estate, in conformity with Wilson v.

Wilson, 3 Binn. 55, in which it was held, that assumpsit for money had and received lies against an executor in his individual capacity, for a share of personal estate undisposed of by will; still the plaintiff may sue the executor as such, and seek a recovery, in the first instance, de bonis testatoris, proceeding after-wards, on the return of nulla bona, to obtain an execution de bonis propriis, on the ground of a devastavit. It is not pretended that he is obliged to sue the defendant personally to recover a legacy. The action here is in debt.

It is, in some respects, a charge against the executor in his individual capacity. It was commenced by capias, and special bail entered, and the declaration is in the debet and detinet. But in other material features, the suit is against the defendant as executor. The action is so entitled. 'The declaration in its commencement avers, that the defendant was attached as executor: it recites the will, and appointment of three executors, and accounts for the nonjoinder of the other two by alleging one to be dead, and the other absent from the state.

After setting forth that assets had come to the defendant’s hands as such executor, and the amount of the plaintiff’s proportion, it omits to state that the defendant thereby became liable to pay. If the declaration were ambiguous, the construction ought to be against the party whose pleading it is—more especially where such construction goes to preserve the trial by jury; on which account the court has always leaned towards a liberal construction in favour of an appeal in doubtful cases. Jones v. Badger, 5 Binn. 462.

I am, therefore, of opinion that, in this case, the defendant is within the privilege conferred by the proviso, and that the court below did right in sustaining the appeal. The counsel for the plaintiff prayed the court to charge the jury, that the decree of the orphan’s court was conclusive. The answer of the court seems to me to define with accuracy the effect of such a decree.

The orphan’s court has not hitherto possessed jurisdiction to entertain a suit for a legacy, or to settle the accounts between the executor and the legatees, and, therefore, its decree could 'have no bearing on the question as to the amount due to the legatee. Its only effect is to show the balance of assets in the executor’s hands after payment of debts and charges.

The righrto sue for a legacy is vested by the act of the 20th of March 1772, in the courts of common law, and to them is given power to appoint auditors to distribute the assets among the legatees, where they are insufficient to pay the whole of the debts and legacies. In this, therefore, there is no error. The third error assigned relates to the circumstances which went to repel the presumption of payment arising from length of time. The circumstances relied on by the defendant were various.

They consisted of the citation and other proceedings in the orphan’s court; the omission of dates on the administration account, made out and sworn to by the defendant; the long period during which there was no administration taken out on the estate of Isabella Foulk, the legatee ; the receipt of part of the moneys claimed within less than twenty years before this suit was brought. It appears that the testator died in May 1802, and Isabella Foulk in 1804. The widow died in May 1808.

The plaintiff took out letters of administration to his late wife, Isabella Foulk, on the 7th of May 1827; and, on the 8th of May 1827, presented a petition to the orphan’s court for a citation to compel the defendant to settle his accounts; which were accordingly passed, and'confirmed on the 13th of February 1828, finding a large balance against him as executor, and decreeing it to be distributed according to the will. The legacy was payable in May 1803, being one year after the testator’s death. Legacies not being within the statute of limitations, fall within the rule of presumption.

After a lapse of twenty years, bonds and other specialties, merchant’s accounts, legacies, mortgages, judgments, and indeed all evidences of debt excepted out of the statute, are presumed to be paid. 1 Fonb. Eq. 329; Gilb. Eq. Rep. 224; Bickley v. Richards, 13 Serg. & Rawle 402. The court will not encourage the laches and indolence of parties, but will presume, after a great length of time, some composition or release to have been made. Fonblanque’s Equity 329. This length of time does not operate as a positive bar, but as furnishing evidence that the demand has been satisfied. Eldridge v. Knott, Cowp. 211.

But-it is evidence from which, when not rebutted, the jury is bound to draw a conclusion, though the court cannot. Crist v. Brindle’s Executors, 2 Penns. Rep. 262. Within the twenty years, the onus of proving payment lies on the defendant: after that time it devolves on the plaintiff to show the contrary, by such facts and circumstances as will satisfy the minds of the jury, that there were other reasons for the delay of the prosecution of the claim than the alleged'payment.

And if these facts are sufficient satisfactorily to account for the delay, then the presumption of payment, not being necessary to account for it, does not arise. Slighter circumstances are sufficient to repel the presumption than are required to take the case out of the. statute of limitations; the latter being a positive enactment of the legislature, the former merely an inference on which legal belief is founded. The rule in regard to the statute of limitations, (a rule which applies to executors and administrators as well as others—Gwill. B.

Ab. 479; Willes 27) that when the time Was begun to run, it suffers no interruption from the occurrence of circumstances that would otherwise prevent its application, does not, it is said, apply to the case of a legal presumption. 16 Johns. 214. Still the circumstances, whatever they may be, must account in some reasonable way for the lapse of time, without demand or suit.

The party’s ignorance of his right; his disability to sue during a portion of the time, owing to the prevalence of a war; 2 Yeates 268; 10 Johns. 210; 16 Johns. 214; 2 Cranch 184; and, it is said, a writ sued out against the party really liable, though not arrested, or an imperfect writ, if the-party were arrested; absence from the country during the last twenty years; lb.; Quince v. Ross, Taylor 155; a demand without suit, and generally, any circumstance explaining satisfactorily why an earlier demand has not been made; 1 Phil. Ev. 119; 1 Fonb. Eq. 332.

The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the result of a necessary regard to the peace and security of society. No person ought to be permitted to lie by whilst transactions can be fairly investigated and justly determined, until time has involved them in uncertainty and obscurity; and then ask for an inquiry. Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or'thrown away; and a new generation has appeared on. the stage of life, unacquainted with the affairs of a past age, and often regardless of them.

Papers which our predecessors have carefully preserved, are often thrown aside, or scattered as useless by their successors. It has' been truly said, that if families were compelled to preserve them, they would accumulate to a burthensome extent. Hence statutes of limitations have been enacted in all civilized communities; and, in cases not within them, prescription or presumption is called in as an indispensable auxiliary to the administration of justice. Courts of equity consider it mischievous to encourage claims founded on transactions that took place at a remote period. 2 Sch. & Lef. 71.

It therefore grants no relief after a great length' of time. lb. In a word, the most solemn muniments are presumed to exist, in order to support long possession ; the most solemn of human obligations lose their binding efficacy, and are presumed to be discharged, after a lapse of many years. In the present case, twenty-five years and upwards had elapsed from the time when the legacy was by law payable, viz. May 1803 to the institution of this suit in October 1829.

The circumstances relied on by the plaintiff to prevent the raising of this presumption are various, and it is in respect to these that the opinion of the court below is excepted to. The first circumstances are the settlement of the administration account in February 1828, and the citation and other proceedings in the orphan’s court. The mere settlement of the administration would not be an admission that the legacy was not paid. The executor may have paid all the bequests, and yet be compellable to settle an account.

That is a duty imposed by law, which any one possessing the character of legatee, or party in interest, has a right to enforce. The orphan’s court, on application for process to compel such settlement, could not inquire whether the legacy had been paid or not. It was declared by this court, in M’Lean v. Findley, 2 Penns. Rep. 100, that filing such account would not tend to repel the presumption; because it does not, in any way, admit a liability to distributees ; nor, for the same reasons, does it as to legatees. Connected with the citation, however, the proceeding is of a different character.

A citation is a process to enforce the'payment of the bequest. It is true the party may, under the legacy act, sue in a court of common law, and recover his proportion of the-residuary bequest. But the usual, and perhaps most convenient way is, first to ascertain by a settlement in the orphan’s court the amount in the executor’s hands, and then bring an action for the plaintiff’s proportion; and therefore, the citation within twenty years to settle such account, duly prosecuted, is a claim by legal proceeding, and a bar to the presumption.

Lapse of time shall not prejudice a person who has'title, while seeking a discovery of that title from persons in possession of the evidences of it. 1 Sch. & Lef. 42, 413. If this citation had been taken out by the legatee within twenty years from the time at which the bequest rvas payable, it would be sufficient. That, however, was not the case, except as to the sum payable after the widow’s death; and therefore, as to all but that, is of no avail. The second circumstance relied on, is the omission of dates in the administration account, as made out and sworn to by the defendant.

This is not a fact from which we can infer any thing. The court below say very properly, that if there were objections to this form, they should have been made when the account was presented and investigated. We are not now inquiring into suppression or fraud] nor are we to presume them : we must judge from the account as it is ; and the absence of dates furnishes no fact from which a con.clusion can be drawn for or against the payment. The third circumstance relied on by the plaintiff, is the want of administration being taken upon the estate of Isabella Foulk.

From the death of Isabella Foulk in 1804, to the year 1827, a period of about twenty-three years elapsed, during which there was no administration to her estate, and it is insisted that this is a circumstance to fepel the presumption of payment. But it,-is to be observed that the bequest was to the plaintiff’s wife, and the legacy was therefore, in effect, his property. He was entitled, during her lifetime, to demand and receive it, and if not paid, to sue for and recover it. The case is clear, for that period, of any circumstance that operates to rebut the presumption.

Then, on the death of the wife and his survivorship, he1 acquired, by the statute of distributions, the right to her choses in action as next of kin, and this legacy, if not previously discharged, devolved to him, as his absolute and indefeasible property ; so much so, that he might receive it from the executor, bequeath it by will, or, if he died intestate, it would pass to his representatives and not to his wife’s. 1 P. Wms 381. He had the sole right to administer to his wife : every other person was excluded by the express provisions of the act of assembly of the 21st of March 1772.

Now although it is true that in order to sustain a suit for this legacy, after his wife’s death, the plaintiff would have been obliged to take out letters of administration, yet that was a ceremony at all times in his own power to resort to. He had but to ask, and would have received them as a matter of course. His disability to sue was a voluntary one.

How then can he set up his own laches and indolence in this respect; or bow. does it show that he was not paid 1 If the legacy was due, it was a great benefit, and we cannot suppose a person- would neglect to receive it, or if not paid would omit to qualify himself to sue for it, unless it had been discharged in some way or other. It- is not like the case of an ordinary administration. There no one is qualified to demand the property of the intestate without letters of administration. If the nearest of kin will not take them out, another may; or even in some cases a creditor.

It is uncertain till letters are granted, who will be clothed with the right. When appointed, the administrator is not, generally speaking, the person entitled exclusively to the estate, but merely a trustee for those interested. So in the case of executors, though they are designated, and may do many acts before probate, yet they are not ordinarily the owners of the estate, and jtis uncertain whether they will act.

I am therefore of opinion, that the want of administration is not a circumstance o*perating in favour of the plaintiff to repel the presumption arising from the lapse of time; and that there' is no error in the charge of the court below to that effect. The receipt of part of the moneys charged within less than twenty years before suit brought. The court below instructed the jury that this was sufficient to repel the presumption as to the part thus received, but could have no operation on moneys before received by the executors, and which they ought to have paid over. In this I can perceive no error.

It cannot be justly pretended that the presumption begins only with the date of the last receipt of money by tne executor; for he is bound to pay over the money as received amongst the legatees, I mean where it is not wanted to pay debts. The presumption begins from the time the right accrues; from the time the executor ought to pay, and the legatee is entitled to receive. What amount was received within the twenty years, is uncertain on the accounts. It would seem likely that some portion was. In relation to that, the presumption would not arise; but it would as to the receipts, more than twenty j^ears back.

With regard, however, to such portion of the residuary bequest as was not payable till after the widow’s death, no presumption can arise except from that period. That event occurred in 1808. From 1808 to 1827, when the citation issued, only nineteen years elapsed ; and a period short of twenty years is not sufficient. This portion the court ought to have distinguished from the main bequest, and as to this, we think there was error in the charge of the court, and that the judgment ought to be reversed. Judgment reversed, and a venire facias de novo awarded.