
    Rebecca Bailey et al. v. Thomas Shannonhouse ex’r of Thomas Davis,
    From Pasquotank.
    To a bill against the executors of an executor, by the legatees of the first testator, a plea of the act of 1715 {Rev. c. 2) barring claims against dead men's estates unless made within seven years, is not available, without an averment that the residue of the estate had been paid to the Trustees of the University.
    The bill was filed in March, 1828, by the legatees of Benjamin Bailey, for an account of his estate, and the payment of their legacies.
    It averred, that Benjamin Bailey died in the year 1811, having made his will, whereof he appointed the testator of the Defendant and another executors-* — that the testator of the Defendants alone proved the will in March, 1812, and took into his possession all the personal estate, and under a power conferred by the will, sold a valuable plantation, and received the purchase money — that, the executor acted for many years as the guardian of those of the hgalees, who were infants — that he died in the year 1817, having made his will, which was proved by the Defendant, whom he appointed executor.
    The Defendant pleaded, “ that the said Thomas Davis, “ this Defendant’s testator, died more than seven years “ before the filing of the Plaintiff’s bill, to-wit, at, &c„ e< in the year 1817 j nor has the Defendant, at any time “ since the death of his testator, promised or agreed to “ come to any account with the Plaintiffs, or make any “ satisfaction, or pay any money for or on account of his “aforesaid testator, and therefore this Defendant doth e< plead the act of Assembly in that case made in the year “ 1715, for the limitation of actions brought by creditors “ against any person deceased, and prays that he may “ ha\e the benefit of the same, and pleads the same in “ bar of so much of the Plaintiff’s bill as calls for an *( account of, &c. and prays judgment,” &c.
    
      His Honor Judge Daniei, sustained the ¡dea, and dismissed the bill — whereupon, the Plaintiffs appealed.
    
      II gg, for the Plaintiff's.
    
      Devereux & Kinney, contra,
    
    cited Beckford v. Wade, (1/ Ves. 8G) Hamilton v. Shepperd (3 Murp. 115) Hollow-ih. Pope (2 Murp. 108) McIntyre v. Carson (2 Hawks 544) Cook v. Streator (1 Dev. Eq. Cases 324) Eayner v-Pearsall (3 Johns. C. R. 578).
   Hall, Judge.

— In the present case, there is no question raised as to the. right of property. The Plaintiffs seek that which was their father’s, and which by will he bequeathed to diem ; and in the bill are included the fair Claims of the widow, derived from the same source.— Whether these claims are barred by the statute of limitations, and given to an executor, it is our province to Consider.

By the ninth section of the act of 1715 (Iredell’s Rev. c. 48) any remnant of an intestate’s estate, that remained in the hands of an administrator, unexhausted by creditors, and not claimed by the next of kin, is directed, after seven years, to be paid to the churchwardens and vestry, for the use of the parish. By the act of 1784, (Rev. c. 205) such balance in the hands of an adminis - trator, when his administration shall be finished, ant! mo further demand, shall he made by creditors, shall be deposited in the treasury, subject to the claim of creditors and the representatives of the deceased, without limitation of time. Suppose however, that an administrator does not pay over such surplus to the treasury, as he ought to do. As the representatives of the deceased can have no claim against the treasury, it follows, that such administrator will he liable after seven years, because if he had done his duty, the treasury would be liable without limitation of time | and the administrator should not become the owner of the property, as a re, ward for his delinquency.

By the act of 1809 fEev. c. 763) it is made the right of the trustees of the University to receive, and the duty of executors and administrators to pay to them all sums 'mo,ley> or other estate of. whatever kind, that shall have remained in their hands for seven years after their qualifications respectively, unrecovered by creditors, legatees or next of kin of their testators or intestates. And the trustees are authorized to hold the same absolutely, unless a just claim shall bo made for the same within ten years thereafter. If, in the present case, the Defendant had added to his plea, that he had delivered over to the trustees of the University the estate in question, the Plaintiff might have applied for it to the trustees at any time within ten years. But to hold on upon it, against the just and equitable claims of the Plaintiffs, when the executor cannot claim the semblance of a beneficial interest in it, is what the act of 1715 never contemplated. The decree therefore, made in this case in the Superior Court, must be reversed.

Per Curiam.

— Let the decree be reversed accordingly.  