
    Peter Miller v. Martha and Eliza Mitchell, Infants, defending by their Guardian, John C. You, and Jacob Lazarus, Executor of E. N. Frisk, deceased.
    Where an executor has duly advertised for the creditors of his testator, if a creditor neglect to render in his demand within the time prescribed by law, and the executor pays over legacies, but funds of the estate nevertheless remain in his hands sufficient to pay the creditor, the latter cannot afterwards compel the legatees to refund, although the funds retained by the executor have become unavailable by reason of his. insolvency. Aliter, if the assets were originally deficient.
    The testator bequeathed two small pecuniary legacies, to be paid as soon after Ms decease as could be conveniently done. He then directed his estate to he sold at such a credit, and on such terms, and conditions, as his executor might think advantageous; and directed his executor, as soon as his estate should be sold, to purchase, and emancipate, a certain slave, to whom he bequeathed the residue of his estate.
      Held, that the pecuniary legatees were intitled to be paid in preference to the bequest for the purchase of the slave to be emancipated; and that their legacies were not applicable to the payment of creditors, until the rest of the estate had been exhausted.
    A suit by a creditor, against pecuniary legatees of his debtor, to refund their legacies for payment of his demand, on the ground of the insolvency of the executor, will be barred by lapse of time, in analogy to the statute of limitations, in four years after the insolvency of the executor has been ascertained by the return of nulla bona to a fi. fa. against him. vide 1 Hill’s Ch. 145.
    Courts of Equity will not only apply the statute of limitations in cases of mere legal titles and demands, but in cases of purely equitable cognizance will also give effect to lapse of time as a bar, in analogy to the statute of limitations: and a mere personal demand for money, although purely equitable, will, by analogy to an action at law for the recovery of money paid by mistake, be held stale in four years from the time when the right to sue in equity accrued.
    
      
      vide Act of 3 791,1 Faust, 32.
    This was a suit, by petition, brought by a creditor against the legatees of his debtor, to compel them to refund their legacies, which had been paid to them by the executor, and to have the amount applied to the satisfaction of the petitioner’s demand, the executor, who was a party defendant to the suit, being insolvent. The cause had been referred to the master ; and came on to be heard, upon his report, at Charleston, in February, 1829, before Harper, Chancellor, from whose decree the case made will be fully understood. ,
    Harper, Ch. The facts, and circumstances, on which this suit is founded, are as follows. The testator, E. N. Frisk, who died in 1812, by his will, gave legacies of $100, each, to the infant defendants, Martha, and Eliza Mitchell; and directed his executor to purchase, and emancipate, a negro woman named Amy, to whom he bequeathed the residue of his estate. The executor, Jacob Lazarus, paid the legacies of $100, each, to the guardian of the infant defendants, in 1812, soon after the death of the testator. The petitioner, Peter Miller, who was a creditor of the deceased, brought an action at law, on his demand, against the executor, in 1817; and in 1820, recovered a judgment for about $1,500, on which a fi. fa. was immediately issued, and a return of nulla bona subsequently made thereon. It appears, that the executor, Lazarus, is insolvent; and it is alleged by the petitioner, that the assets of the testator were originally insufficient to authorize the payment of the legacies : and lie prays therefore that the legatees may be ordered to refund. The defendants rely upon the lapse of time, and the statute of limitations.
    I think the demand a stale one, and that the petition must be dismissed. There is no doubt, that in the event of a deficiency of assets, creditors may call upon a legatee to refund. According to the English cases, if an executor pays one legatee in preference to others, not retaining sufficient assets to satisfy the rest, and becomes insolvent, the unsatisfied legatees may compel the first to refund ; although if he retains sufficient assets, and afterwards wastes them, there is no such recourse on the part of the unpaid legatees. Anonymous, 1 P. Wms. 495. Edwards v, Freeman, 2 Id. 446. But a similar distinction does not appear to' obtain with respect to creditors. They are preferred to all legatees; and if there be a deficiency of assets, whether original, or from the waste of the executor, they shall compel legatees to refund. In consequence of our executor’s law, creditors are on somewhat a different footing with us, from that on. which they stand in England. It)'England, no time, but that prescribed by the various statutes of limitations, is limited lor creditors to render their demands to the executor. Our law directs the executor to advertise for creditors to render their demands within twelve months. It is their duty to render them accordingly, and they are guilty of laches if they omit it: and I , ,. 6 J J apprehend, that if creditors fail to give notice of their demands within the time limited, and the executor pays over the estate to legatees, he may, if afterwards sued, protect himself by the plea of plena administravit. But on general principles, a party’s laches shall not be permitted to work an injury to an innocent third person. If due notice, by advertisement, be given by the executor, and the creditor fails to render in his demand, and the executor pays over a legacy ; and there are funds in the hands of the executor, over and above the legacy, applicable to the payment of debts, and sufficient for that purpose, which the executor afterwards wastes, or which perish, or in any manner become unavailab'e to the ereditors ; the legatee ought riot to be compelled to refund. If he is compelled, he is deprived of his legacy by the laches of the creditor, who might have obtained payment, if he had given notice, and prosecuted his demand in due time. There was enough, both for the legatee, and the creditor. The case might be different, if suf. ficient funds to pay debts were not left in the hands of the execu. tor, after payment of the legacy.
    . Act of 1789, sec. 27, r. 1..
    In the present case, the executor states, that he gave due notice to creditors. Perhaps I ought to presume in favor of the regularity of his proceedings. There is no allegation or proof to the con. trary. He states, also, that he liad no notice of the petitioner’s demand, until his aclion at law was commenced in the year 1817. I think, too, it sufficiently appears, that after payment of these legacies of $100, there were in the hands of the executor sufficient-funds to pay the petilioner’s demand, and that they were applica. ble to that purpose prior to these legacies. It was admitted in the cause, that, in pursuance of the will, $1,000, were paid by the executor for the negro woman, Amy, who was emancipated; and it appears from the master’s report, that there was left in the hands of the executor a furlher balance of $480. The petitioner’s demand, wi^i interest accumulated, was, in 1820, about $1,500. I think the $1,000, paid for Amy, was applicable to the payment of debts rather than the defendant’s legacies. The wiil itself gives them a preference. The testator directs them “ to be paid, as soon after” his “ decease as can be conveniently done.” He then direots his estate to be sold ,s at such a credit, and on such terms an^ con^'*'ons) as his “ executor may think advantageous.” As soon as his estate should be sold, (and, we must infer, the money* for which it should be sold, collected,) he directs the negro woman Amy to be purchased, and emancipated. It seems to me, from the terms of the will, to have been the intention of the testator, that if either of these bequests should fail, it must be that for the purchase oí Amy. It does not appear what has become of Amy ; and with respect to her a singular question might perhaps arise.
    I wish, however, to express the opinion, distinctly, that the petitioner is barred by his delay after the recovery of his judgment in 1820, and the defendants protected by lapse of time, in analogy to-the statute of limitations. The defendants have been in possession of their legacies since 1812, claiming adversely : that is, claiming them as their absolute, unqualified, property. Whatever equity, or cause of action, the petitioner has against them now, arose, at all events, on the return of nulla bona to his execution issued on the judgment of 1820. At that time the executor, Lazarus, had become insolvent, although the precise date of his assignment for the benefit of his creditors does not appear. The master’s report states, that judgments obtained against him as early as 1818, remain unsatisfied ; and I conclude he was insolvent when the judgment of 1820 was obtained. But the return of nulla bona must have been made within the year after the judgment rendered ; and the present petition was not filed until the 10th March, 1826 : and by any computation, the petitioner’s equity must have arisen more than four years before his present suit was commenced.
    It was argued, that this is a merely equitable demand, to which the statute of limitations does not apply. It is true, that, the terms of the statute apply only to actions at law : but, as observed by the Master of the Rolls, in Beckford v. Wade, 17 Yesey, 96, “Courts of Equity, by their own rules, independently of any statutes of limitations, give great effect to length of time ; and they refer frequently to the statutes of limitations, for no other purpose than as furnishing a convenient measure for the length of time that ought to operate as a bar in equity of any particular demand.” Mere legal titles, or demands, are sometimes to be adjudicated in Courts of Equity, on which actions at law might have been sustained; the Court either having concurrent jurisdiction, or the matter being incidentally drawn within its jurisdiction : and with respect to these, there is no question, that the Court is bound to yield obedience to the statute. But in other cases, where from the nature of the demand there never could have been any proceeding at law, the Court has given effect to time in analogy to the statute. In the case of Bonney v. Ridgard, cited in Beckford v. Wade, 17 Ves. 97, an executrix had sold leasehold property, to a purchaser with notice, in fraud of her children. The children, suing after they came of age, were held to be barred by lapse of time in analogy to the statute. What time bad elapsed, between the children s coming of age, and the filing of .the bill, does not appear ; but we learn, that less than twenty years had elapsed between the time when the youngest came of age, and the decree. This was a case of purely equitable cognizance.
    . , Cases, 145.
    102?’ vide Act of P. L.
    It has been sometimes said, that twenty years will bar an equity: and that this is the bar applicable to purely equitable demands ; as to a bill for foreclosure, or to redeem, or a bill of review. But it is to be recollected, that this bar has been adopted in equity, in analogy to the English statute of limitations respecting actions for real estate; or in conformity to the rule of law, which raises the presumption of satisfaction of a specialty, or of a judgment, and many other presumptions, in twenty years. Where there has been an adverse possession, and no trust, or fraud, it seems, that time will always bar, in analogy to the statute. As was said by Lord Redesdale, in Hovenden v. Lord Annesley, “ I think it impossible not to see, that Courts of Equity have constantly guided themselves by this principle, that whenever the legislature has limited a period for law proceedings, equity will, in analogous cases, consider the equitable rights as bound by the same limitations.” 2 Sch. & Lefr. 632.
    But what is the analogy in the present instance; and what provision of the statute shall we apply to the petitioner’s demand? It is amere personal demand for money, and I think .the same provision will apply, that would bar such a demand at law. If an executor, not having notice of a debt, should pay over the estate to legatees, and then be compelled to pay the debt, and should file his bill against the legatees-to refund, the analogy would, perhaps, be more perfect. It would be an action to recover money paid by mistake. The petitioner’s demand seems to me to be of the same character. If the executor were solvent, the creditor would be compelled to resort to him in the first instance ; and the executor’s recourse would be against the legatees. It is the executor’s insolvency which gives him the equity to come directly, and in the first instance, against the parties who would be ultimately liable.
    Upon the whole case, there cap be no doubt, that the petitioner has been guilty of great neglect, and delay; and in all probability, if he had used due diligence, he might have secured his debt, without depriving the defendants of these inconsiderable legacies.
    It is ordered, and decreed, that the petition be dismissed with costs.
    Fronl this decree the petitioner appealed, and now moved that the same might be reversed.
    T. O. Eiliott, for the motion.
    The direction for the purchase and emancipation of Amy was in the nature of a specific legacy, and was therefore to be performed before payment of the legacies to the defendants, which are pecuniary, and general. 1 Roper on Legacies, 150. Admitting it, however, to be only a general pecuniary legacy, it stood upon the same footing with the legacies to the defendants, and all were bound to abate equally ,* nor would it have made any difference, if the testator had, in express terms, directed the legacies to the defendants to be paid in the first place. ■Blower v. Morret, 2 Ves. 420. Brown v. Allen, 1 Yern. 31, and see the cases collected -by the editor, in the note to that case. It is manifest, therefore, that when the executor paid the legacies of the defendants, he did not retain sufficient funds to pay the petitioner’s demand ; and so the argument in the first part of the decree entirely fails.
    With regard to the statute of limitations, it is conceded, on all hands, that the bar of the statute applies only to legal titles and demands, and that the petitioner's claim is purely equitable ; but it is said, that Courts of Equity give effect to lapse of time as a bar, by analogy to the statute, even in eases of mere equitable cognizance. There is no doubt of this, and this principle has led to the well established general rule, that twenty years will bar an equity. It is wholly immaterial by what precise analogy this period was agreed upon : it is sufficient that it is fixed ; and it is unquestionable, that, as a general rule, the lapse of twenty years is requisite to bar an equity. There may be an exception, where there are circumstances to aid the presumption of satisfaction arising from the lapse of a somewhat shorter period ; by analogy to the rule at law in relation to the payment of bonds, and satisfaction of judg. ments: and the case cited, of Bonney v. Ridgard, 1 Cox’s Cases, 145, seems to be founded on such an exception. But it is nowhere laid down, that mere lapse of time will bar a purely equitable demand, within less than twenty years. To discriminate between equitable demands, with a view to apply the bar arising from lapse of time, at different periods, to different classes of demands, according to supposed analogies to legal demands; is not only, in effect, to apply the various statutes of limitations, in all their strictness, to equitable demands, at the same time that it is declared, that they are not applicable to such demands at all; but it is to apply them without any certain rule to guide the applica. tion : for all such analogies must be more or less fanciful, and perhaps no two Chancellors would agree on the precise time applica. ble to any one case. Vide Anonymous, 1 Salk. 154. Blakeway d. Earl of Strafford, 1 Dickens, 48. Fergus v. Gore, 1 Sch. & Lefr. 107. '
    
      
       The testator died before the Act of 1820, prohibiting the emancipation of slaves, and this bequest to purchase and emancipate a slave seems, therefore, to have been lawful, vide Lenoir v, Sylvester, 1 Bailey, 632.
    
   Per Curiam.

We concur in the Chancellor’s decree for the reasons therein stated. It is therefore affirmed, and the motion to reverse it is dismissed.

Decree affirmed.  