
    JULY TERM, 1843.
    Pharaoh Carter, Administrator, &c. vs. The Judge of the Probate Court of Adams County, for the use of the Estate of A. Griffin.
    G. married the widow of C. and lived with her during her life in the occupancy and enjoyment of C.’s estate; and continued to occupy the same after her decease to the time of his death, being in all about twenty years, and preferred no charge against the estate of C. during all that time, for the support and maintenance of C.’s children, who lived with him, or for money paid out on account of the estate. After G.’s death, his administrator presented an account against C.’s estate for the support and maintenance of the children, and for money paid by G. on account of the estate. Held, that the facts raise a fair presumption that G. never intended to make any charge for the support and maintenance of the children, or for money disbursed by him, on Account of the estate. And that the account therefore ought not to be allowed.
    If G. permit even a well founded claim against the estate of C. to sleep for twenty years without presenting, or in any manner attempting to enforce its collection, it will be such laches as ought to bar his claim. And especially if it be not supported by proper vouchers.
    Appeal from the probate court of Adams.
    A sufficient statement of the case is made in the argument of Mr. Baker, and in the opinion of the court.
    Baker, for the appellant.
    This record contains the proceedings in two cases, to wit: The estate of James Cole, deceased, and Absalom Griffin, deceased. James Cole died in 1812, intestate, and his wife Sythia Cole, and one Gideon Hopkins administered on his estate. Hopkins died, and in 1814, the administratrix intermarried with said Griffin, who became administrator in right of his wife, and paid the debts of the estate to the amount of several thousand dollars, out of his own funds; for which he took the legal and requisite vouchers, but which were subsequently lost. By the death of the administratrix in 1817, Griffin ceased to be administrator, and no final settlement of said estate had been made.
    
      In 1833, said Griffin died intestate, and no administration on his estate was obtained until applied for by the appellant; when administration de bonis non was granted to him on the estate of said Cole, and administration in chief on the estate of said Griffin. The estate of Cole, upon the death of the admin-istratrix, was indebted to Griffin for the amount which he had paid on account of the estate; and also for the maintenance and education of Cole’s 'minor children. Griffin’s wife, the mother, the natural and legal guardian of said children, being bound, both naturally and legally to maintain and educate them.
    After the grant of administration as stated, the appellant, as administrator of Griffin, presented to the judge of probate, for allowance, his account against the estate of Cole for the amount of money paid by Griffin on account of Cole’s estate, while he was administrator in right of his wife; this account the court refused to allow, although fully sustained by the testimony taken in the case. From this interlocutory order of the probate court the appellant has brought the case into this court. As to the right of appeal from an interlocutory order of the probate court, see Green, administrator v. Tunstall, et al., 5 How. Rep. 638.
    The only error assigned and insisted upon, is the order of the probate court disallowing the account presented by appellant, administrator of Griffin, against the estate of Cole. I will notice 1st, the nature of the account presented; 2d, the proof of the same, and 3d, the powers and jurisdiction of the probate court.
    1. The account consists of two classes of items, to wit: one for money paid out on account of the estate of Cole; and the other for the maintenance and education of the minor children of- said Cole.
    As to the first class of items, it will hardly be doubted that the appellant has not a clear right to their allowance. Griffin, as the administrator of Cole, was bound to pay the debts of the estate, and having done so out of his own funds, he thereby justly makes himself a creditor of Cole’s estate to the amount so paid, and the estate is clearly bound to reimburse the same to appellant upon presentation of the claim supported by sufficient proof. Griffin, the administrator, being legally and equitably bound to satisfy the debts of his intestate, and having done so, has, unquestionably, a legal and equitable claim against the estate for the amount so paid, whatever it may be.
    As to the second class of items in the account, the claim to satisfaction seems clearly manifest. No guardian appears to have been appointed by the court for the- children of Cole; they remained with their mother, their natural guardian, who was under the strongest moral obligation to maintain and educate her offspring. This it seems she was wholly unable to do; for she told the witness Mrs. Roddy, that such were her reduced circumstances, that had she not have married Griffin, she would have been obliged to bind her children out to servitude. Griffin having married the mother of these children, took upon himself the discharge of those moral duties towards the children, that before the marriage, rested solely on the mother, and having discharged them with the liberality, and kindness of a father, he ought to be entitled to the same compensation as though he had been regularly appointed guardian by the court, and had advanced his own funds for the procurement of necessaries suitable to their estate and degree.
    It is not sought to make the administrator of Cole’s estate liable, as such, for this last class of items. There is no personal property belonging to the estate of Cole, and the real estate has descended to, and is now in the possession of his said children, and heirs, all of whom are made parties to the proceedings had in the case, having been regularly cited, &c. Under these circumstances it is contended that the probate court has the power, in the exercise of its equitable and legal jurisdiction, to subject the real estate of said James Cole, to the satisfaction of the claims of the appellant.
    2. As to the proof of the claim of appellant. The deposition of the witness Luse, proves the payment by Griffin, administrator, of one thousand dollars, the amount of two notes given by Cole in payment for land bought of Luse. This item is set down in the account at $ 1100, which included the interest at the time of payment. The deposition of Mrs. Roddy proves the payment of $ 600, for the negro Prince. This item is set down at $ 650, which likewise included the interest at the time of payment. Her deposition also proves the payment of the item of $ 100, to Holmes, as charged in the account. These are all the items of the class first noticed, and amount, together with the legal interest thereon up to the filing of the account, to the sum of $ 5012. All the items of the class secondly specified and which relate to the maintenance and education of the children of said Cole, are proved by the testimony of all the witnesses, but particularly so, by that of Mrs. Roddy and witnesses Earhart and Sojourner.
    3. The powers and jurisdiction of the probate court of this state have, I think, been too often discussed, and have been too well settled by this court to require argument at this late day.
    The substance of the decisions of this court upon this point is, that the powers of the probate court, as to all matters over which it has jurisdiction, are as ample and complete as those of a court of equity. Blanton v. King, et al., 2 How. 856. Edmundson v. Roberts, et al., 2 How. 822. Carmichael, et al. v. Browder, 3 How. 252. McRea v. Walker, et al., 4 How. 455.
    Upon this construction of the probate jurisdiction, it is clear that what a court of equity might properly decide upon the facts of the case presented in the record, ought to be the rule to govern the action of the probate court.
    Griffin, as the administrator of Cole in right of his wife, paid the debts of Cole’s estate to a considerable amount, and for aught that appears, to the full amount, out of his own funds; and before any final settlement of the administration account was made, Mrs. Griffin, the administratrix, in whose right Griffin was administrator, died, and consequently his right to further administer the estate ceased to exist.
    For the amount so paid by Griffin the requisite vouchers were obtained, but have been lost or destroyed; as after the most laborious search for the same in the office of the clerk of probate, where they ought to be kept, they cannot be found.
    
      The amounts paid by Griffin, are as follows: two notes of $ 500, each, given by Cole, for land purchased of the witness Luse; a note of $100,’for the horse, purchased by Cole of Holmes; and a judgment against Cole for $600, for the negro boy Prince, as stated in appellant’s account filed. For these payments the vouchers would be three notes, and a transcript of the judgment. The evidence of payment having by lapse of time or by accident been lost or destroyed, the appellant has resorted to the only proof left, that of witnesses; by whom he has fully proved the several payments. The heirs of Cole, who are parties to the proceeding, insist that the use and occupation of the one hundred and fifty acres of land of which their ancestor died seized, ought to be considered by the court as an adequate remuneration for their maintenance and education. Whatever the court might think, under a state of proof different from that furnished by defendant, I cannot perceive upon what principle the court can arrive at such a conclusion. The heirs of Cole have wholly failed, or neglected to show the value of the land, or how long said Griffin occupied it, if he occupied it at all, and as the court cannot judicially know how long Griffin may have occupied the land, or of what value it was, it cannot by assumption undertake to supply this deficiency in the respondent’s testimony. But should the court be of a different opinion, it does not affect the applicant’s claim for the amounts paid by him on account of said Cole’s estate,
    As to the foundation of the judge’s decision in the court below, as stated in the record, I have not been able to'perceive any reason or law that sustains it. He says, “ the estate of Cole would not have been liable for the claim of sustenance of the heirs of Cole during the administration of Griffin.” This is mere assumption of the judge; the administrator, as snchj was unquestionably not legally bound to maintain them; and if they were not entitled to maintenance out of the estate of their deceased ancestor, then they were entitled to none at all, so far at least as the administrator was concerned, and I suppose the worthy judge would have left them, however tender in years, to shift for themselves. Again, “ that if the claim had been charged in the administration account, the court would have been bound to reject it.” The court will perceive that the claim for maintenance, &c., is not placed as a claim against the administrator. All the heirs of Cole are made parties, and are in court by regular process, and it is against them that the liability for sustenance is Sought to be established. “ Then,” says the judge, “ much more would it be rejected after the lapse of twenty years.” This, I think, is wholly a matter of super-errogation on the part of the judge, to thus voluntarily set up, on the part of respondents, the statute of limitations, when they neither set it up in their answer, nor gave evidence of it on the trial. Nor does the judge seem to consider that in this case, there was no one in existence in whose favor the statute could run, and I take it, there must, in the application of this statute, be a mutuality; there must be some one in being, against whom a remedy might be enforced, or else surely it cannot operate.
    There was no administration de bonis non, granted on Cole’s estate after the death of Mrs. Griffin, the administratrix, and consequently, there was no person in being against whom Griffin, had he been ever so desirous, could have enforced his remedy. How then can he be said to be barred by laches ? And would it not be most iniquitous, that a creditor of an intestate should be barred of his remedy, because there was no one against whom he could enforce his claim. Nor was Griffin bound, as suggested by the judge in his second reason, “ to take out administration de bonis non, on Cole’s estate, or lose his claim.” Here is another new idea. I have not been able to find any law of this or any other state, that says that if a creditor will' not take out letters of administration .on the estate of his deceased debtor, he shall be barred of his remedy to recover the same, although another may subsequently obtain letters. The judge next assumes, in his third reason, “ that if Griffin had had an unliquidated claim against the estate, he certainly would have taken administration, or some other means of enforcing his claim.” Here is another assumption. Griffin had no power to compel another to administer, and if he did not choose to administer himself, what other mode the honorable judge could have alluded to, I am wholly at a loss to perceive.
    The argument of the judge, if reduced to a syllogism, would stand thus: He who has a claim against his deceased debtor, and will not take administration, must be forever barred: Griffin had a claim against Cole, his deceased debtor, and did not take administration, therefore Griffin is forever barred of his remedy. Or thus: He that hath a claim against his deceased debtor, and will not take administration himself, nor compel another to do it, must be forever barred of his remedy : Griffin had a claim against Cole, his deceased debtor, and did not take administration himself, nor compel another to do it; therefore Griffin is forever barred of his remedy. The fourth reason of the judge is fully answered in my remarks relative to the defect of testimony on the part of the respondents. What I have already said relative to the applicatipn of the statute of limitations, fully answers the fifth and last reason assigned by the judge for rejecting and disallowing appellant’s claim. With regard to the statute of limitations, it cannot apply in this case, even had it been pleaded, (which should have been done to entitle the respondents to the benefit of it) because no laches can be attributed to a plaintiff for not suing, while there is no administrator against whom an action could have been brought. See Cooper’s Equity Pleading, 253. 2 Vernon’s Rep. 695.
    As to the rights of an administrator, or executor, who has paid the debts of the deceased, see 2 How. 815. 10 Peters, 567. 2 Leigh, 70.
   Mr. Justice TuRNee.

delivered the opinion of the court.

This is an appeal from the decision of the judge of probate of Adams county, disallowing an account filed by the administrator of the estate of Absalom Griffin, against the estate of James Cole.

It is necessary to recapitulate only the main facts of this case, to obtain a proper view of its merits.

James Cole died about the year 1812, intestate, possessed of certain real estate, goods, chattels, rights and credits; and letters of administration tvere granted to his widow and Gideon Hopkins. The latter died, leaving the widow of Cole, sole admin-istratrix, who intermarried in 1814 with Absalom Griffin, whereby’said Griffin became administrator, in right of his wife. The wife of Griffin died about the year 1817. Griffin did not take out letters of administration de bonis non upon Cole’s estate, nor •does it appear that any one .farther administered upon it. Griffin died, intestate, in 1833 or 1834.

Pharaoh Carter — who married the daughter of Griffin, by another marriage than that solemnized between said Griffin and the widow of Cole — at the April term of the probate court of Adams county, in 1840, obtained letters of administration de bonis non upon the estate of said Cole, and also letters in chief on the estate of Absalom Griffin, whose legal distributee he had married. At the June term of said court, as administrator of Griffin’s estate, he presented an account, against the estate of Cole, setting up an indebtedness of the latter estate to the for-mer of $19,946 40. This account embraces two classes of charges. The first and largest, for the maintenance and education of the children of Cole, and the interest upon the sums' thereby alleged to be due. The second class, for moneys paid upon debts due by said Cole, and interest thereon. The first class of items runs through a series of years, before and after the death of the mother of these children. Evidence is introduced of the facts, that they lived with Griffin and went to school, of the reasonableness of the charges made in the account of Griffin’s administrator, and of the payment of certain moneys by Griffin in discharge of debts due by Cole. It is suggested by the appellant, that the vouchers of Griffin, deposited in the probate court, have been lost.

Upon these premises, the probate court held that the account should be disallowed, and assigned reasons for this decision. An appeal has been prayed to this court, and there is a general assignment of error,' “ that the decree should have been for the appellant.”

We think the ground to have been well taken by the probate court, that it is to be presumed that Griffin, who lived some twenty years after his marriage with the widow of Cole, and for a long series of y ears, in occupancy of the estate of Cole, certainly contemplated no charge against that estate, for any disbursement of moneys on its account, or on behalf of the children, the heirs of Cole. It is probable, that he considered the use and occupancy of this estate, as satisfaction for any outlay of his own moneys (whatever that may have been), and if he did not, it is clearly referable to his own laches, that he did not.establish an account, and recover his claim against the estate of Cole, which he certainly could have done, if in no other way, by taking out letters de bonis- ?ion. It is clearly apparent too, that the estate of Cole, even should this account of the estate of Griffin be allowed, would be entitled to some credits, on account of Griffin’s use and occupancy of said estate of Cole. Of these credits, no mention seems to be made, although the appellant, Carter, is the administrator of both estates.

The probate court had fully the right to consider this matter of the laches of Griffin. This court has said, in the case of Carmichael, et al. v. Browder, 3 Howard, 258, “Its powers (viz. the probate court) may be said to be coextensive with those of a court of equity, for, if necessary, parties may proceed by bill and answer, and the court may decree as the justice of the case may require.” And it clearly tends to the equitable administration of justice,- that, within some proper period, to be assigned by the legislative authority, of the country, even well-founded claims should go-without day, if suffered to sleep in silence.

In the 90th section of the Orphan’s Court Law, (Rev. Code, p. 54,) it is provided, “ That the vouchers or proofs of any claim on open account shall be a certificate of an oath or affirmation, taken by the creditor, as aforesaid, since the death, indorsed on or annexed to that account, ‘ that the account as stated is just and true, and that he or she hath not received any part of the money stated to be due, or any security or satisfaction for the same, except what (if any) is credited,’ and moreover such account shall not be paid, until the same be examined and allowed by the orphan’s court.” No such account on behalf of Griffin, thus attested, has been exhibited, and under all the circumstances of this case, we deem that more than a mere suggestion of the loss of vouchers is necessary in the absence of such, or a similar account.

The judgment of the probate court must be affirmed.

Note. This case was decided by Judge Turner at the July term, 1843, of the court. It should have been reported in the first volume of Smedes and Marshall’s Reports.  