#### *David Buchan vs. John S.*James, *adm’r. and others.*

1. Bill filed by a legatee against defendant, an administrator, and others, with himself the distributees of his intestate, for an account of monies which, it was alleged, had been received by their intestate and not accounted for, as one of the executors of the will under which he claimed. The executors proved the will of their testator, and assumed the administration of his estate in Virginia, in 1804. Defendant’s intestate, in 1807, made a letter of attorney, in which he authorized his attorney to settle and adjust all matters of debt and account whatever, and with whomsoever, in which he might be interested in his private capacity, or as executor or administrator, with the usual powers to sue for and receive all monies that might be due, to execute releases, and to make partial and final settlements, &c; and in 1808 removed to South Carolina. There was no evidence of the receipt of any funds by the intestate of the estate of the testator, except some drafts drawn by him and paid to his order by his attorney in Virginia in 1824 and 5; nor was there any proof that the monies drawn for, were not received by the attorney immediately after the execution of the letter of attorney under which he acted. The complainant resided abroad, and his bill was filed in 1840, twelve years after a final settlement and distribution of the estate of defendant’s intestate, and fifteen after his death. Twenty one years had elapsed from the probate of testator’s will till the death of the intestate, and from the probate till the filing of the bill, thirty-six. Until this time, it did not appear that any notice of the existence of this demand had been given to any of the parties.

2. The Court were of opinion^ and held that complainant’s demand was barred by the statute of limitations.

3. The well established doctrine of this Court, based on the English Chancery, is, that the statute of limitations will not bar a demand growing out of a direct trust, but will a demand arising out of a trust raised by implication of law. And whether it is in obedience to the positive enactment of the Legislature, or a rule of Court, founded on a supposed analogy to the statute, is now immaterial, as it is followed implicitly. *Vide Alexander vs. Williams,*2 Hill, 522; *Massey vs.*Massey, 2 Hill Ch. Rep. 496 ; *Tucker vs.*Tucker, 1 McCord Ch. Rep. 176; *Miller vs. Mitchell,*1 Bailey Eq. 437.

4. Distribution of the estate of the intestate having been made twelve years before complainant’s bill was filed, each distributee believing he was entitled to retain what he had received, and not knowing that any one else had a higher claim, is in strict accordance with the definition of an implied trust.

■ 5. The question as to the presumption of payment arising from the lapse of *376time, not deemed necessary to the decision of the case; and as to its merits, the Court declined expressing any opinion.

6. Although it has been decided that after the death of an administrator of an intestate, his next of kin cannot maintain a suit to recover property of the estate without an administration *de bonis non,*yet its universal application has been since questioned,* and the better opinion seems to be, that such a suit will be allowed without a new administration, when from the lapse of time it may be fairly presumed that all the other concerns of the estate have been finally settled.

*Before his Honor*Chancellor Johnson, *at Laurens, Jane Term,*1841.

*Bill for account, &c.,*

The decree of his Honor, the Chancellor, who heard this case on the circuit, presents all the material facts so fully as to render any further report unnecessary. It is as follows :

Johnson Ch. The Rev. Robert Buchan, of Stafford County, Virginia, died therein the latter part of the year 1803. He left a will, wherein he nominated John M. Daniel and Benjamin James, his executors, and after disposing specifically of a part of his estate, he directed his executors to sell the residue, real and personal, and to remit the proceeds, together with all monies arising from debts due to him, by means of bills of exchange, to his brother David Buchan, (the complainant,) and James Buchan, who reside in Great Britain. The executors both proved the will and assumed the administration, and the complainant states in his bill that in March 1804, they sold two tracts of land, the proceeds of which amounted to $7,000. The sale is supposed to have been on a credit; and that the executors wTere delayed in recovering the amount from the purchasers by a claim interposed by the State of Virginia to the lands, as having escheated to the State, which led to a protracted litigation between the State and the purchasers, and was ultimately decided in their favor; and that they paid the executors the purchase money, but at what time does not appear. That the executors took possession of and sold the personal estate — collected the debts due, to an amount of *377which complainant is ignorant. And that there was no inventory of the estate, or any account of their administration, except an account returned by Benjamin James alone to the county Court of Stafford; which is exhibited with the bill, which complainant charges is imperfect. John M. Daniel, one of the executors, died in Stafford county, many years ago. And in-the complainant, and the legal representatives of his co-legatee, James Buchan, who was then dead, by a proceeding in the circuit Court of the United States, for the eastern District of Virginia, recovered against the legal representatives of the executor Daniel, the amount of' the assets of the estate, which remained in his hands. Benj. James, the other executor, removed from Stafford, Virginia, to Laurens district, in this State, in 1808 ; died there intestate in 1825, leaving the defendants his heirs or distributees, and defendant, John S. James, administered on his estate. The bill charges that monies of the estate of the testator, Robert Buchan, to a large amount, came into the hands of the said Benj. James, which have never been accounted for, and prays that the defendant John S. James, his administrator, may account for and pay to complainant the balance remaining in his hands ; and in the event of his having fully administered the estate, by paying it over to the other defendants, his distributees, that they may account, *&c.*The defendants answered severally. They admit that John M. Daniel and their intestate were appointed executors, and assumed the administration of the estate of Robert Buchan, and that their intestate survived the said John M. Daniel. But they deny any knowledge of his receipts and disbursements on account of the testator’s estate, or any of his actings and doings in relation tfiereto, and demand strict proof of any liability he may have incurred. The defendant, John S. James, states in his answer that having paid all the demands exhibited against his intestate, and after having given public notice through the newspapers, calling on creditors to present their demands, in 1828 he came to a final account with the dis-tributees of the estate of his intestate, his co-defendants, and paid them severally their distributive shares, retaining only his share as one of them, without having had any *378knowledge or notice of the complainant^ demand, until about the time of filing this bill, and he pleads this matter in bar to his personal liability. The other defendants admit the final account and settlement of the estate of their intestate, and the receipt of their distributive shares thereof in 1828. On the 24th December, 1|307, defendant's intestate made a letter of attorney to one Thomas Sidden, authorizing him to settle and adjust all matters of debt and account whatever, and with whomsoever, in which he might be interested in his private capacity or as executor or administrator, with the usual powers to sue for and receive all monies that might be due — to execute releases, and to make partial and final settlements, &c. On the 5th August, 1824, the intestate drew on his attorney in favor of Capt. Wm. Moore, for one thousand dollars, expressed to be for money due him as the executor of Bu-chan ; and on the 20th August following, that sum was paid to Moore by Sidden. On the 28th February, 1825, the intestate drew a similar order on his said attorney in favor of Moore, for the further sum of one thousand dollars — which was duly paid on 19th March following. It seems also that on the 2nd September, 1820, the intestate drew on one Cary Sidden, in favor of his said attorney, Thomas Sidden, for any money which he (Cary Sidden) might still owe to the estate of the late Rev’d. Robert Bu-chan deceased, on account of lands purchased from the executors at their sale of the said estate in 1804. It *ought*to have been remarked before, that both of the orders in favor of Moore express that they are to be paid out of the fund collected by the attorney from Cary Sidden, for the intestate, as executor of Buchan. This bill was filed in 1840, and from the foregoing facts, it will be seen that thirty-six years elapsed between the probate of Buchan’s Will, twenty-one years before the death of the intestate, James — -fifteen years after his death, and twelve years after the final settlement and distribution of his estate, before the filing of the bill; and that no notice had been before given to any of the parties of the existence of this demand. Nor is there any evidence of the receipt of other funds by the intestate of the estate of the testator, but the sums paid to Moore by Thomas Sidden. The grounds *379principally relied on'in the defence, are: 1st, That if the defendants are accountable at all, they are liable only at the suit of an administrator *de bonis non*of Duchan, and not directly to the complainant as legatee. 2d. That from the lapse of time, the legacy will be presumed to have been paid. 3rd. That the statute of limitations is a bar to the complainant’s demand, 1st. In *Farley vs. Farley,*1 M’Cofd Ch. Rep. 506, it is laid down broadly, that after the death of an administrator of an intestate, his next of kin cannot maintain a suit to recover property of the estate, without an administration *de bonis*non; and that rule applies directly to the question first made here. The propriety of its universal application has, however, been since questioned, and the better opinion seems to be that such a suit will be allowed without a new administration, when from the lapse of time it may be fairly presumed that all the other concerns of the estate have been finally settled. It has grown out of the disinclination of the Court to delay the course of litigation, and increase the expences, in cases where all the parties interested are before it, and the whole merits of the case as fully exposed and as well understood without as with a man of straw, This qualification of the rule must govern here. The lapse of twenty years, as I shall have occasion hereafter more fully to state, will, according to the uniform current of our decisions, be sufficient of itself to authorize presumption of the discharge of all executory obligations, and the rule will apply more forcibly to those for which no demand is made. After thirty-six years, therefore, it is a fair and reasonable presumption that all the other concerns of Bu-chan’s estate, if not his demands, have been finally settled.

It has been before said that the lapse of twenty years will be sufficient to authorize the presumption of the discharge or satisfaction of all executory obligations. It is so in the cases of bonds for the payment of money *---Blake vs.*Quash, 3 McCord, 340. So in the cases of bonds for the performance of covenants — 1 Bailey, 148. So a legacy wjll be presumed to have been paid after a lapse of twenty *years*— Barnwell *vs.*Barnwell, 2 Hill Ch. Rep. 233. The rule itself is not controverted, nor is there any difficulty in its application, when the presumption of payment is pot *380repelled by extrinsic circumstances, as the payment of interest on a money bond, or any part of the principal; the admission the legacy has not been paid, and that the covenants provided for in the bond have not been performed, &c. In computing the lapse of time, it is indispensably necessary to ascertain, where it is uncertain, when the liability of the party charged first attached. In this State one year is allowed to an executor to ascertain the condition of his testator’s estate; and if at the end of this time he has neglected to perform any of the duties required of him, he is liable to suit at the instance of either a creditor or a legatee. I do not know, nor have I the means of ascertaining, how these matters are regulated by the laws of Virginia; but taking it for granted that there is some reasonable time in which an executor is required to adjust the affairs and account for his administration of his testator’s estate, and in the absence of any other, I propose to adopt that limited by the laws of this State. Allowing one year, therefore, before the presumption would attach, the question is, whether there is any thing in the case to postpone it. The complainant states in his bill that the executors made no inventory of the estate, and rendered no account of their sales ; and the only account of receipts and disbursements, which was rendered by the intestate, James, he repudiates as imperfect on its face. Here, then, was abundant cause of complaint, and a bill for an account might well have been maintained; and so if he had neglected to take all necessary measures to make sale of the estate, and collect all monies due, and account for, and pay over the same, without unnecessary delay. In the absence of any proof, the presumption is, that he performed his duty. It is said that, he was delayed in collecting the proceeds of the land, by the interposition of a claim on the part of Virginia, which led to a protracted suit. But we have no evidence of the fact of such a suit but naked rumor ; and even that does not show when it commenced or terminated.

Three circumstances are mainly relied upon to repel the presumption of payment. 1st. The removal of the defendant’s intestate from Virginia to this State. 2nd. That he did not actually receive the money on his order drawn in favor of Moore until 1824. 3d. The resi*381dence of complainant abroad. There is no pretence that there was any secrecy in the intestate’s removal' to this State. He left behind him an attorney, clothed with ample powers to settle this and all other demands against him. He was a man of character and distinction, and any enquiry there would, in all probability, have led to a knowledge of the place to which he had removed. The intestate’s letter of attorney to Thomas Sidden, it will be remembered, is dated in 1807, and from any thing that appears, he received the monies now claimed immediately after; and it will not be insisted that the intestate would not have been liable immediately on the receipt of his agent; and computing the liability from that time, thirty-three years elapsed before the filing of the bill. The non-residence of the complainant is not sufficient to repel the presumption of payment. In the absence of proof, it will be presumed that he had knowledge of the legacy having been bequeathed to him ; and it is not reasonable to suppose that he would have delayed for more than twénty years to demand payment; nor ought it to have the effect of extending the time necessary to complete the presumption of payment. Our statute of 1824, limits the time of prosecuting a claim or title to ten years; and in *Blake vs.*Hayward, 1 Bailey’s Eq. Rep. 208, it was held that parties residing beyond the seas were entitled to no more, as there was no saving or exception in their behalf. Twenty years, as before observed, will authorise the presumption of the payment of a legacy, and I have not found any case in which non-residents were more favored, and none have been referred to. The intestate and his co-executor sold the estate of their testator in 1804. It does not appear that any demand for this legacy was made until the filing of this bill. In the mean time the intestate has died. The defendants are utterly ignorant of the manner in which he administered the estate — no human being, as far as we know, is better informed. The absence of all documents and vouchers, leaves us in utter uncertainty as to the true state of the facts, and if presumptions are worth any thing as a rule, they must obtain in this case. For the general doctrine, particularly as applied to cases vvhere the original parties have been long dead, and their estates, as here, *382finally settled and closed, I refer to *Barnwell vs.*Barnwell, before cited. The defence, if possible, stands even on higher grounds. The demand is barred by the statute of limitations. The well established doctrine of this court, based on the authority of the English Chancery, is, that the statute of limitations will not bar a demand growing out of a direct trust, but will a demand arising out of a trust raised by implication of law. And whether it is in obedience to the positive enactment of the Legislature, or a rule of Court, founded on a supposed analogy to the statute, is now immaterial, as it is followed implicitly. *Alexander vs. Williams,*2 Hill, 522; *Massey vs. Massey,*2 Hill Ch. Rep. *496*— Tucker *vs. Tucker,*1 McCord Ch. Rep. 176— *Miller vs. Mitchell,*1 Bailey Ch. 487. If one place money or goods into the hands of another, upon an agreement that the bailee shall *keep*them safely and restore them when demanded by the bailor, it is a direct trust, to which the statute will not apply. But if one receive money or goods of another, believing that they belonged to him, when in fact *ex equo et bono*they belonged to a stranger-— that is an implied trust, and the stranger is entitled to recover — but he may be barred by the statute of limitations. To which of these classes does this demand belong'! The defendants were the distributees of the intestate, and entitled to equal shares of his estate. Bistibution of the estate was made twelve years before the filing of the bill, each believing he was entitled to retain what he had re-’ ceived, in ignorance that any one else had a higher claim, and is in strict accordance with the definition of an implied trust. It is in effect money paid and received to the use of another, which, in an action at law, would be barred by the statute — unless brought within four years after the action accrued — -and according to the rule before laid down, is barred in this Court. In *Alexander vs. Willliams,*Mil*ler vs. Mitchell,*and *Massey vs. Massey,*the precise point was ruled. A distributee or legatee is protected by the statute of limitations against creditors or others claiming, unless they file their, bills within four years after distribution of the estate.

It is ordered that complainant’s bill be dismissed, with costs.

*383*Copy of Robert Buchan’s Will."*

In the name of God, amen. I, Robert Buchan, clerk, do make my last will and testament, in the manner and form following, viz;

I give to the negroes that may be in my possession when I die, their freedom, after the crop on hand is finished, and the other property, which I may then possess, is all sold. It is my will also, that they should be dismissed well clothed ; and that each of them shall be furnished with an axe and a hoe, at the expense of the estate. Should I die, however, before Jesse, and the boy Dudley, are twenty-five years of age, I give their services to Mr. Sidney Wishart, till they arrive at the said age of twenty-five ; after which, it is my will they shall be free. I also give and bequeath to Mr. Wishart, my family bible and prayerbook, because I stood sponsor for him at his baptism. I give and bequeath to Dr. John M* Daniel, my watch, as a remembrance of me. I give and bequath to Benjamin James, Esq. all my books in the Greek and Latin languages. I give to William Ramsay one of my horses, and should he owe me any thing at the time of my death, I acquit him of the debt. I give and bequeath to my successor in the parish of Overwharton, if a minister of the Protestant Episcopal Church, my surplice ; but if the parish should not obtain one of that pursuasion, my executors may dispose of it as they think proper. I give to the negro man, Tom, my wearing apparel. It is my will, that the land and personal property, which I now possess, shall be sold, after my decease, and my executors, if they think they can sell the said property on better terms, by selling it on a credit, allow the purchasers some time for making payment.

I give and bequath to my brothers, David and James, to be equally divided between them, the money arising from the sale of the land and other property, and from the debts due to me at the time of my death; and as they reside in Great Britain, it is my will, that my executors make remittances to them in bills of exchange, or any other mode, as soon as they can. I appoint Dr. John M. Daniel and Benjamin James, Esq,, executors to this, my last will and testament.

In testimony whereof, I have set to this my name, and affixed my seal, this 12th day of July, in the year of our Lord, 1803.

ROBERT BUCHAN, [l. s.]

*384The complainant gave notice that he would move the Court of Appeals to reverse the decree, upon the following grounds:

1. Because, under the circumstances of this case, lapse of time afforded no protection to the defendants, and could not defeat the right of complainant to recover.

2. Because his Honor erred in holding that the statute of limitations applied to the case, and was a bar to complainant’s recovery.

3. Because the decree of his Honor was contrary to law and equity, and the defendant, upon the facts proven, should have been decreed to account to complainant for the amount of the funds in his hands, shewn to have been received by Benjamin James, deceased, as executor of Robert Buchan, deceased.

*Irby*& *Young*for'the appellant. *Sullivan,*contra.

*

*Farley*vs. *Farley,*1 McC. Ch. 506.

*Curia, per*Johnson, Ch.

The court agree that by the rule adopted by the court, in analogy to the statute of limitations, the demand of the complainant against the defendants, is barred, and on that ground, concur in the decree of the circuit court. The question as to the presumption of payment arising from the lapse of time, is not, therefore, necessary to the decision of the case, and the court have declined expressing any opinion as to its merits.

Appeal dismissed.

Harper, Dunkin and Johnston, Chancellors, concurred.