#### Taylor, Appellant, *v.*Coggins.

*Equity*— Trusts—Laches.

A bill in equity to enforce an alleged trust is properly dismissed, where it appears that the suit was instituted more than nineteen years after the right of action accrued and more than *229seventeen years after tbe plaintiff attained his majority, and 'the only fact explaining the delay is that the plaintiff did not know until a few months before the filing of the bill of the existence of the will of his father, under which he claimed, but knew that his father’s papers were in the attic of the house in which he lived and never made any examination to find out what was there or to see if a will was among the papers; and this is particularly true where all of the material witnesses have died, and there was no evidence that any certain assets were set aside for the alleged trust fund or that any such fund existed.

Argued Jan. 19,1914.

Appeal, No. 328, Jan. T., 1913, by plaintiffs, from decree of C. P. No. 1, Philadelphia Co., Dec. T., 1911, No. 762, in equity, dismissing bill in case of Charles L. Taylor, in his own right, and in behalf of Lawrence G. Taylor, Samuel S. Taylor, William M. Taylor and Julia T. Harrison, children of Charles W. Taylor, deceased, who may desire to participate herein, v. Paschal H. Coggins, executor of the estate of Mary W. Coggins, deceased, Paschal H. Coggins, individually; Carrie L. Coggins, Anna M. Stackhouse, executrix of the estate of Anna W. Stackhouse, deceased; Anna M. Stackhouse, individually, Elizabeth W. Dailey, Rebecca S. Haldeman, Thomas W. Stackhouse and Louis W..Eldridge.

Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.

Affirmed.

Bill in equity to recover trust funds.

The court dismissed the bill in an opinion by Bregy, P. J., as follows:

The complainants’ claim briefly put is this — that one George Williams, in his will, left a sum of money in trust for Charles W. Taylor, during his life, with power of disposal by will; that he is one of the children of Charles W. Taylor and that by his father’s will he is entitled to a share in the principal of the trust fund.

His suit against the present defendants is based on the allegation that the executor of George Williams was Thomas Williamson, who mingled the assets of the *230estate and Ms own together and embezzled the same— or a large part thereof; that after the death of the said executor the administrator d. b. n. c. t. a. of the Williams estate, who was also guilty of embezzlement and mismanagement, gave certain sums of money and certain property to the defendants, who were heirs of the Williamson estate in settlement of their claims against the estate of the executor and himself; that some of the property thus transferred to the Williamson heirs (the defendants) was 'part of the trust fund belonging to complainants’ father and should be returned by them.

Dates in this matter are important.

George Williams died May 1, 1850.

Thomas Williamson the executor died August 26, 1871.

Passmore Williamson the administrator d. b. n. c. t. a. of Thomas Williamson died March 11, 1895.

Charles W. Taylor (complainants’ father) died May 30,1893, leaving a will, dated April 19, 1892.

This bill was filed in December, 1911.

The transfer of the property to the defendants took place in the early part of 1886.

The trial judge found among other reasons for dis-. missing the bill “that the claim is barred by lapse of time, by analogy of the statute of limitations”; and “that the plaintiffs have been guilty of such laches as to bar them from equitable relief.”

This suit was instituted more than nineteen years after the death of complainants’ father, when the right of action accrued, if there ever was any.

■ Two excuses are given for this delay. One is that the complainant was a minor at his father’s death. This is so, but he became of age seventeen years before he began this proceeding.

The second excuse is — he did not know of his father’s will until a few months before filing this bill. The fact as shown by the complainant, in this respect, is this: The will under which he claims had been in the attic of *231the house he lived in for over nineteen years. He may not have known there was a will among the papers there stored, but he knew his father’s papers were there and never made any examination to find out what was there, or to see if a will was among the papers.

Laches is not excused by simply saying: “I did not know.” If by diligence a fact can be ascertained the want of knowledge so caused is no excuse for a stale claim. The test is not what the plaintiff knows, “but what he might have known, by the use of the means of information within his reach, with the vigilance the law requires of him.” Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co., 167 Pa. 136.

While it may be true that the statute of limitations does not apply to suits in equity, it is only so as a statute of limitations. The principle prevails: Suits brought after the period of time that the law prohibits actions at law are looked upon with suspicion and unless the defendant is responsible for the want of knowledge of the complainant, it is a rare case that survives if more than six years old.

The trial judge was so entirely right in dismissing the bill for laches that we might stop without saying more; but the case that was presented was of so doubtful and uncertain a character that no chancellor would be justified in making a decree in favor of the complainant. There was no evidence that any certain assets were set aside for the trust fund. There is in fact no evidence that there was any trust fund. It was not shown that the father ever received any income from it and he does not mention it in his will.

While there is no evidence on the subject at all this condition of affairs might be explained, as was said by the judge in his findings, by the fact that the Williams will provided that “all the principal sums of money owing to me, by each and every, or any one of the legatees herein named, either on bond, bill or note or book account (but without in any case estimating interest *232thereon) shall be deemed a part of my estate for settle-» ment and division, agreeably to the bequests herein contained.”

Complainant having delayed his action in this case till all the material witnesses are dead, to wit — Pass-more Williamson, E. Spencer Miller, Sr., Esq., Thomas H. Speakman, Esq., J. Howard Gendell, Esq., Joseph B. Townsend, Esq., and Thomas B. Taylor, Esq. — must not only satisfactorily and legally explain his delay but must make out a clear case entitling him to a decree.

This, in our judgment, he has not done.

The exceptions are dismissed and a decree is now entered dismissing the bill at the costs of the complainants.

*Error assigned,*among others, was in dismissing the bill.

*Joseph H. Taulane,*with him *J. Washington Logue,*and *Charles L. Taylor,*for appellants.

The plaintiffs are not barred by laches: Hansell v. Downing, 17 Pa. Superior Ct. 235; Roney’s Est., 227 Pa. 127; Montgomery’s App., 77 Pa. 370; Wilson v. Ott, 173 Pa. 253; Scranton v. Manley, 13 Pa. Superior Ct. 439; McLaughlin v. Shields, 12 Pa. 283; White v. Patterson, 139 Pa. 429; Hayes’s App., 113 Pa. 380.

*Edward P. Bliss*and *Henry P. Brown,*with them *Clay & Steelman,*for appellees.

If complainant ever had any legal or equitable right or claim against the defendants, such right or claim was lost by his laches or barred by. the statute of limitations before the filing of his appeal: Broderick’s Will, 88 U. S. 503; Harwood v. Railroad Co., 81 U. S. 78; Hardt v. Heidweyer, 152 U. S. 457; Williamson v. Beardsley, 137 Fed. Repr. 467; Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co., 167 Pa. 136.

*233February 16, 1914:

Per Curiam,

The order dismissing the plaintiffs’ bill is affirmed on the opinion of the learned president judge of the Common Pleas.