
    M‘Cullough executor of M'Cullough against Montgomery and wife.
    In Error.
    
      Monday, June 4.
    • ERROR to the court of Common Pleas of Lancaster county. •
    bJ' g¡',en for a legacy, where aprindispute is, in what kind of j^ey?s payab!e>a WJt* examined f0^ the testator’s to the general suin'value ¡s not admissible.
    bill was §o^ed for tlie of a legacy to the full satisfaction of the testator’s widow, the mother of the legatee, it was held, that the declarations of the widow on her death hud that she was dissatisfied, and nothing could satisfy her hut the payment of the kgaey in specie, were not admissible in evidence in a suit on such penal bill: especially if the widow had settled an administration account as executrix of the testator, in which she received a credit for the payment of such b gacy.
    This was an action brought by the defendants in error, ° . 3 Montgomery and Jane bis wife, against William MiCitllough, executor of George M‘Cullough, deceased. The action was upon a penal bill dated the 14th October, 1779, whereby the said George bound himself to the said Jane Montgomery, (then Jane Grubby in the penalty of 300 pounds, currency, conditioned for the payment to the said Jane of her legacy as mentioned in her father’s will to the full satisfaction of her mother, the widow Grubb. Very soon after the date of this penal bill George MiCullough married Mrs. Grubb, the mother of Jane, and sole executrix of the will of her husband, Thotnas Grubb. This will was dated the 29th May, 1777, and the testator died in May, 1779. He queathed to his daughter Jane, besides specific legacies of a horse, saddle and bridle, with a bed and its furniture, the sum 0j 150/. current money of the State of Pennsylvania, when s^e came to ^le aSe °f eighteen years.
    
    
      W here a long period of tim« has elapsed fiom. the giving of a single hill for a legacy, the records of suits brought in th> hit* i \?l by the plaintiff against the executor, to recover [the same, are evidence ir» a sun on such penal bill tr >vbut the. presumption of pay merit arising from length of time.
    No presumption of payment of a p*-:ial hill given fora legacy, arises from, length of time, where a sui¡ was brought by the legatee in fifteen y ears after the lime when the legacy was payable, which abated by the marriage of the plaintiff, and another suit was brought eight years afterwards, and the plaintiff continued from that time endeavouring to obtain payment ot the legacy : and it is immaterial what form of action was used if the recovery of the legacy was the object of the suit.
    "Where a legacy was bequeathed by a will dated the 27th of May, 1777, of 150 pounds, Pennsylvania currency, payable \vben -the legatee came of age: the testator died in May 1779, and the legatee came of age in 1783 ; held, in a suit upon a penal bill given for such legacy, that the case was proper for auditors, under the 4th Sec. of the art of 3d April, 1781, and that the Court below erred in charging the jury, peremptorily, that the plaintiff was entitled to bn paid in specie.
    The Orphans* Court cannot receive pay meni of a legacy' for the use of a legatee; when there is no suit pending, nor account settled ; and therefore such payment by an executor cannot avail him, as valid.
    A legatee is not concluded by a settlement in the Orphans’ Court hv an executor, to which the” legatee is no party, in which the executor is credited for the payment of the legacy.
    Query, Whether such a decree of the Orphans’ Court would he conclusive evidence against ft legatee of all receipts and disbursements on account of debt'*, funeral expenses, &c.
    
      Query, Whether it would be primafacie evidence of the payment of the legacy. Nor Would the judgment of the Supreme Court on appeal from such decree, he more binding than the decree appealed from would have been.
    
      On the trial of the caus.e in the Court below, the defendant to°k three bills of exceptions to the opinion of the Court admitting evidence offered by the plaintiffs in reply, and proposed eight questions, on which the opinion of the President was delivered in writing and placed on the record.
    1st. The plaintiffs offered to prove by the oath of Jeremiah Brown, that Thomas Grubb, was considered the richest man in Little Brittain township, had about 1000 acres of land, “a large stock of cattle, and a great deal of personal property, which went into the hands-of George McCullough, by his intermarriage with the widow.” To this evidence'the defendant objected, but the Court admitted it.
    2d. Bill of exceptions. The plaintiffs offered to prove by Levi Sidwell, that after the death of George M-Cullough, Isabella McCullough late Grubb, when on her death bed, told him, that she was dissatisfied, and nothing could satisfy her, but the payment of the legacy to Jane in specie. To this evidence also the defendant objected, but the Court admitted it.
    3d. Bill of exceptions. The plaintiffs offered in evidence the record of an action, brought to June Term, 1798, by Jane Evans, then a widow, now Jane Montgomery, one of the plaintiffs in this cause, against George McCullough and Isabella his wife, executors of Thomas Grubb, deceased, for the recovery of the legacy left to her by her father, the said Thomas Grubb—Also another record of a suit brought to August Term, 1806, by the present plaintiffs against the said George McCullough and wife, executors of the said Thomas Grubb, for the recovery of the same legacy, and a scire facias after the death of the said George McCullough, against his executor, in order to bring him in and make him a party to that suit. To this evidence the defendant objected, but the Court admitted it.
    The defendant had given in evidence the following facts. On the 6th of March, 1781, George McCullough and wife, deposited in the Orphans’ Court of Lancaster county 150/. in continental paper money, in payment of Jane Grubbs legacy, alleging that this identical money had been received in payment of a debt due to the estate of Thomas Grvbb. On the 29th of June, 1791, the said MíCulloue-h and wife, settled in 1 , . ,, , the Orphans' Court, their administration account on the estate of Thomas Grubb, in which they were credited foi 150/. paid to Jane Grubb in full of her legacy. But being dissatisfied with the opinion of the Orphans’ Court on several items of the account, they appealed to the Supreme Court at January Term, 1792, and that Court on the 20th of March, 1804, reversed the judgment of the Orphans’ Court as to the sum of 87 pounds 10 shillings, directed to be charged against the accountant, and ordered that the accountant should be credited with that sum. •
    The Court were requested by the' defendant to give the following matters, in charge to the jury.
    1st. That the law is, that a bond not sued within twenty years after it becomes due, and on which there is no payment made, or acknowledgment of the obligor, is to be presumed paid without any evidence given of payment.
    2d. That the jury, upon the plea of payment with leave, are bound to presume every thing paid, which in law or equity ought not to be paid.
    3d. That the settlement in the Orphans’ Court, the appeal to, and the decision of the Supreme Court thereon, is conclusive evidence of the satisfaction of the legacy by the credit therein obtained for the same.
    4th. That the record of the Orphans’ Court of the payment of the money into the Court, the settlement of the account in the Orphans’ Court, the appeal to the Supreme Court,, and its decree,thereon, is plenary evidence of the full satisfaction of their mother, widow Grubb, according to the condition of the bond sued.
    5th. The Court are requested to give in charge to the jury, that the bond sued upon in this cause, ought to be presumed satisfied by the jury under the evidence given.
    6th. That there is no evidence in this cause to impugn the legal presumption that the bond is satisfied, from its age.
    7th. That this bond, in its condition, is merely an engagement that the legacies are to be paid according to the will of Thomas Grubb, and in no other way, and if that will did not require it to be paid in specie, this bond did not create ao obligation to pay it in specie.
    8th. That current money of the State of Pennsylvania, means as used in the will of Thomas Grubby lawful money which continental money was at the malting ; and that as the bond sued refers to the will, and engages the legacy shall be paid according to the will, nothing but the then current money or its value, could be demanded upon the obligation.
    No interest can be recovered upon a legacy, until after a demand is made of it.
    Charge of the Court.
    This is an action on an obligation entered into on the 14th of October, 1779, whereby the testator, George MlCullough, bound himself to pay to Jane, now the wife of David Montgomery, the legacy of 150/., bequeathed to her by the will of her father, Thomas Grubb, when she arrived at the age of eighteen, to the full satisfaction,of her mother, widow Grubb„
    To this action, the defendant has pleaded payment, with leave to give the special matters in evidence, and under this plea, the jury are to take into consideration all the circumstances legally given in evidence, and are bound to presume every thing to be paid, which in law, equity, and good conscience, ought not to be paid.
    . The defence in this Case, rests principally upon two grounds, first, the length of time which elapsed from the period at which this bond was made payable, and the time at which the present suit was instituted. Arid, second, the payment of the money into the hands of the clerk of the Orphans’ Court, on the 6th of 'March, 1781, and the proceedings of the Orphans’ Court, and of the Supreme Court, respecting the administration account of George McCullough, and wife, on the estate of Thomas Grubb, and the matters connected with it. I shall first consider the second of these two grounds.
    . The bond in question refers to the .will of Thomas Grubb, and engages that the legacy shall be paid to Jane Grubb, according to the will, when she arrived at the age of eighteen years, to the full satisfaction of her mother, widow Grubb.
    
    The will gives to Jane Grubb, the sum of one hundred and fifty pounds, current money of the State of Pennsylvania, When she comes to the age of eighteen years : and this sum could be legally paid, only in the money current in vania, or its value at the1 time it is made payable. Continental money was not then current, and the payment cannot, we think, be settled and adjusted according to the scale established by the Act of Sd April, 1781.
    • We are asked to instruct you that the settlement in the Orphans’ Court, the appeal to, and the decision of. the Supreme Court thereon, are conclusive evidence of the satisfaction of the legacy by the credit therein obtained for the same, and that the record of the Orphans’ Court of the payment of the-money into the Court, the settlement of the account in the Orphans’ Court, the appeal to the Supreme Court, and its decree thereon, are plenary evidence of the full satisfaction of their mother, widow Grubby according to the condition of the bond.
    I cannot thus instruct you, because I do not think that the law would bear me out in so doing. It does not appear to me, that there was any Act of Assembly, or other law, which authorised the payment of the money into Court at the time that it was made, so as in any manner to bind the parties to this suit; the subsequent proceedings could not render the transaction valid and binding, if it were not so at the time it was done ; and • as it appears to the Court to have been a mere nullity, it ought not to have any effect in this cause.
    Under these impressions, we cannot think that these proceedings are plenary evidence of the full satisfaction of the widow Grubb, but that the matter was open to the evidence which was given on that point. On the ground of defence, connected with the length of time, the law is well settled, that when twenty years have elapsed after a bond becomes due, on which there is no payment made, or acknowledgment of the obligor, it is to be presumed paid, without any evidence given of payment.
    But this is merely a presumption, which the law raises, liable to be repelled by evidence of facts, which are inconsistent with this presumption, such as a suit or an acknowledgment of the debt within the twenty years.
    A suit brought within the twenty years, would destroy the presumption of payment. The plaintiff has produced the records of certain suits instituted in this Court against George MlCullough and wife, who was executrix of Thomas Grubb.
    
    These suits were instituted for the amount of the legacies . «o given by Thomas Grubb. George Ml Cullough9' the obligor in this bond, was a party to these suits. If the legacy were not paid, the bond was not paid. And it would seem to me, that the suits for the legacy, being instituted against the person who was also the obligor in the bond, would have the same effect as a suit for the amount of the bond given for the payment of the legacy ; and would take'the case out of the presumption, which the law would otherwise raise, in consequence of the lapse of time.
    But it is for you to decide upon the facts. If you are of opinion, that there is no evidence in this case to impugn the legal presumption that the bond is satisfied from its age, your verdict will be in favour of the defendant.
    But if you are of opinion that the legal presumption of payjnent, js repelled by the evidence, your verdict ought to be in favour of the plaintiffs, for the amount of the legacy bequeathed to Jane, the now wife of David Montgomery, by the will of Thomas Grubb, with interest from the time it was first demanded, of which you must judge as well as you can from the evidence.
    Hopkins, for the plaintiff in error.
    1. Bill of exceptions. The evidence was improper, because it was irrelevant to the issue. It was also hearsay evidence, and was intended to operate on the passions of the jury only. The inventory of Thomas Grubb's estate, was the proper evidence of the amount of that estate.
    2. The evidence stated in the second bill of exceptions, was also erroneously admitted, because it was hearsay evidence. Mrs.'M'-Cullough might have been examined as a witness. In 2 Johns. Rep. 31. declarations of a testator after making his will, that he had been forced .to. execute the will, for fear of being murdered, were held not to be evidence.
    3. The records stated in the third bill of exceptions were not evidence ; first, because they were not between the same. parties; secondly, not for the same subject matter ; and thirdly, they were irrelevant.
    
      
      As to the charge of the court.
    1. The first question was answered properly, but the second was afterwards contradicted.
    3. 4. & 5. The proceedings in the Orphans’ Court are evidence, first, that the legacy to Jane was paid, and secondly* that it was paid to the satisfaction of the widow Grubb, according to the condition of the bond ; and the decision of the Supreme Court on appeal, rendered it conclusive.
    On the remaining points he Contended that the charge was erroneous in stating that the legacy should be paid in specie; because the bond is a contract within the 1st and 2d sections of the act of 3d April, 1781,1 Dali. St. Laws, 880, establishing a scale of depreciation. This act regulates all contracts, entered into between the 1st January, 1777, and the 1st March, 1781. In May, 1777, when the will was made, the depreciation was two and á half paper, for one specie dollar: when the testator died, it was twenty four for one; and in October, 1779, when the bond is dated, the depreciation was thirty for one. Now a bond is a contract within the meaning of the act: and therefore the defendant was not bound to pay in specie, but was entitled to allowance for depreciation, according to the act.. In Lee v. Biddis, 1 Dali. St. Laws, 175, it is held, that current lawful money,' means money current at the time of making the contract, and that, parol evidence cannot be received to prove the contrary. ' ’ ’
    Jenkins, contra,
    considered the case in three points of view. 1. Were the payments on the 6th March, 1781, and the settlement in the Orphans’ Court, reviewed by the Supreme Court, conclusive evidence of payment of the legacy. 2. If not paid in fact, was it paid in presumption of law. 3. Was this legacy such a debt, as should have been scaled under the Act of 3d of April, 1781.
    1st. The money was no.t deposited for safe keeping, but as a payment. Such payment was not authorised by any law. The legacy was not due; the legatee was then an infant and had a guardian, William Arbuckle, who was appointed guardian on the 6th June, 1780. The bond was to pay the legacy according to the will. It was not á vested legacy, but being given “ when she arrived at the age of eighteen,” it would have lapsed if she had died before eighteen. The pretended payment was two years and a half before .she came to the age of eighteen, which was not till August, 1783. There was no law nor practice authorising such a deposit in A i the Orphans’ Court. If the legacy had been due, it should have been paid to the guardian of the infant whose duty it would have been under the 4th section of the Act of 1713, (Purd. Dig. 408) to put it out at interest. The Court below therefore were right in deciding, that this pretended payment was a nullity, though recognised by the Orphans’ Court. We had a right to go into the proceedings of the Orphans’ Court and to deny the payments allowed by that Court. On the appeal to the Supreme Court, this point was not touched, nor could it have been, because it was M'-Cullough who appealed.
    On the first bill of exceptions, he contended, that as the defendant below alleged that the estate of Grubb was insolvent, the plaintiff had a right to shew that Grubb left a large estate, which came to the hands of the executor.
    On the second bill of exceptions, he contended, that as the bond was conditioned to pay the legacy to the satisfaction of Mrs. Grubb, therefore the plaintiff had a right to prove that she was not satisfied. Her oath in the Orphans’ Court, was under the influence of her husband. This Court has frequently decided that the proceedings of the Orphans’ Court are not conclusive.
    [The Court relieved Mr. Jenkins from speaking as to the admissibility of the records in evidence,-to rebut the presumption of payment arising from length of time.]
    Then as to the scaling of this debt, by the Act of 3d April, 1781. Grubb died in May, 1779, when 150/. were of very little value, too little to make any kind of provision for the daughter. He had a large landed estate, and gave a plantation to each of his sons. In Grubb v. M'-Cullough, 1 Teates, 193, a case is reported of a suit for legacies under this very will of Thomas’ Grubb, and auditors found that they were to be paid in value, equal to specie.
   Tiughman, C. J.

delivered the opinion of the Court.

David Montgomery and Jane his wife, who was a daughter of Thomas Grubb, deceased, the plaintiffs below, brought this suit against William M'Cullough, executor of the last will and testament of George M'Cullough, deceased, on a penal bill dated the 14th of October, 1779, whereby the said George bound himself to the said Jans Monti> ornery, (then Jane Grubb) in the penalty of 300 pounds Pennsylvania currency, conditioned for the payment to the said Jane, of her legacy, as mentioned in her father’s will, to the full satisfaction of her mother, the widotu Grubb ; very soon after the date of this penal bill, George McCullough married Mrs. Grubb, the mother of yene, and sole executrix of the will of her husband, Thomas Grubb. This will was dated the 27th of May, 1777, and the testator died in May, 1779. He bequeathed to his daughter Jane, besides a specific legacy of a horse, saddle, and bridle, with a bed and its furniture, the sum of 150/. current money of the State of Pennsylvania when she came to the age of eighteen years. On the trial of the cause, in the Court below, the defendant’s counsel took three bills of exception to the opinion of the Court on points of evidence, and proposed eight questions, on which the opinion of the President was delivered in writing, and placed on the record.

It appears by the 1st bill of exceptions, that the plaintiff’s counsel offered to prove by the oath of Jeremiah Brown, that “ Thomas Grubb was considered the richest man in Little Britain township, had about 1000 acres of land, and a great deal of personal property, which went into the hands of George M’Cullough, by his intermarriage with the widow.” To this evidence, the defendant objected, but the Court admitted it. A principal point of dispute on the trial, was, in what kind of money the legacy of Jane, the daughter of Thomas Grubb, was payable ; that depended on the intent of the testator, which in cases of this kind may be shewn, by circumstances dehors the will. If the value of the testator’s property, in specie, was small, and the amount of legacies bequeathed by him, great, it would afford a strong presumption, that he could not have intended that the legacies should be paid in specie. It was proper therefore to admit evidence.of the value of his estate. But the evidence offered by the plaintiff, was of too loose a nature—the general reputation of the value of the property. The witness should have been confined to his own knowledge. Under that restriction.he might have been permitted to testify, as to the value of Grubb’s estate ; but the Court suffered him to go farther, and in that there was error.

The 2d. bill of exceptions shews, that the plaintiff offered to prove by the oath of Levi Sidwell, that “ after the death of George M’Cullough, Isabella M’Cullough, late Grubb, when on her death-bed,told him, that she was dissatisfied, and nothing could satisfy her, but the payment of the legacy to Jane, in specie.” To this evidence, also the defendant objected, but the Court admitted it. The gen eral rule is, that declarations, not under oath, are not evidence. Mrs. M’Cullough might have been examined as a witness ; the defendant had a right to the benefit of cross examining her, on oath, and such a cross examination was very necessary, as she had, together vyith her husband, George M’ Cullough, settled an account of her administration on the estate of her first husband, Thomas Grubb, in which'she had received credit, for 150/. paid to her daughter Jane, in full of this legacy : this account was settled, on her oath : clearly therefore, her subsequent declarations, without oath, that she was dissatisfied with the payment of the legacy, ought not to have been received.

By the 3d bill of exceptions, it appears, that the plaintiff offered in evidence, the record of an action brought to June Term, 1798, by Jane Evans, then a widow, now the wife of David Montgomery, and one of the plaintiffs in this cause, against George M’Cullough and Isabella his wife, executors of Thomas Grubb, deceased, for the recovery of the legacy, left to her, by her father the feaid Thomas Grubb ; also another record, of a suitbroughtto Azzg’WsiTermjlSOSjby the present plaintiffs against the said George M‘Cullough and wife, executors of the said Thomas Grubb, for the recovery of the same legacy, and a scire facias, after the death of the said George M’Cullough, against his executor, in order to bring him in, and make him a party to that suit. To this evidence, the defendant objected, but the Court admitted it. When it is considered, that this was offered as rebutting evidence, in order to remove the presumption of the payment of the legacy, arising from length of time, on which the defendant relied, it will appear at once, that it was evidence, material, and highly important. When a creditor suffers a long period of time to elapse, without demanding payment, or doing any act from which it may be inferred that he. keeps up his claim, a strong presumption of payment arises ; because the conduct of the creditor cannot otherwise be well accounted for. But there is no ground for such presumption, when it' appears, that so far from remaining passive, the creditor has been prosecuting legal measures for the recovery of his demand. These records, therefore, were proper and powerful evidence, to rebut the presumption, set up by the defendant; and the Court was right in admitting them.

In order to judge of the opinion given by the President of the Court of Common Pleas, to the eight questions proposed by the defendant’s counsel, it will be necessary to state some of the evidence given by the defendant. On the 6th Miirch, 1781, George M'Cullough arid' wife, deposited in the Orphans’ Court of Lancaster county, 150/. in continental paper money, in payment of Jane Grubb's legacy, alleging that this identical money had been received in payment of a debt' dire to the estate of Thomas Grubb. On the 29th of June, 1791, the said M’Cullough and wife, settled in the Orphans’ Court their administration accounts on the estate of Thomas Grubb, in which they were credited for 150/., paid to Jane Grubb in full of her legacy j but being dissatisfied with the opinion of the Orphans’ Court on several items of the account, they appealed to the Supreme Court at January Term, 1792, and’that Court, on the 20th March, 1804, reversed the judgment of the Orphans’ Court, as to the sum of eighty seven pounds and two shillings, directed to be charged against the accountant, and ordered that the accountant should be credited with that sum.

The questions proposed to the Court below, though eight in number, may he reduced to three points. 1st. Ought the jury to have been directed to presume payment of the bond on which this suit was brought, or of the legacy which the bond was intended to secure. 2d. Was the bond, or the legacy, such a debt as ought to have been reduced to its value in specie, according to the scale of depreciation established by the act of 3d of April, 1781. 3d. Were the proceedings in the Orphans’ Court, and the Supreme Court, conclusive evidence of the payment of Jane Grubb's legacy ?

1st. It is very clear, that the length of time between the date of the bond and the commencement of this suit, considering all circumstances, aiforded no ground for a presumption of payment. In general, when a debt is due on bond, apd twenty years elapse, without, any payment of principal or interest, or any demand of payment by the obligee, it must be presumed that the.debt is paid, because it is contrary.to the usual course of human affairs, that a creditor should acquiesce s0 long- without receiving satisfaction. But the presumption ceases, when it appears that the creditor has not acquiesced, but endeavoured to obtain payment. Now in the first place, although this penal bill bears date in October, 1779, yet the legacy secured by it was not payable till the 8th of August, 1'783, when Jane Qrubb arrived at the age of eighteen years ; counting from that.period, it appears, that after the expiration of only fifteen years, Jane Grubb, then the widow Evans, commenced an action of debt against George McCullough and wife, for the recovery of her legacy.. This suit was brought to February Term, 1798, and abated by the plaintiff’s marriage with her present husband, David Montgomery. The action was renewed by the' present plaintiffs, against M'Cullough and wife, to August Term, 1806, and from that time to the present moment, the plaintiffs have been endeavouring tó obtain payment of the legacy, either by an action of debt, in which the legacy was demanded, or by an action on the penal bill of George. M'Cullough. It is immaterial which form of action was used, for in either, the recovery of the legacy was the object of the suit. When'the President of the-Court of Common Pleas left it to the jury to determine upon, this evidence, whether the usual presumption arising from length of time, was not rebutted by the circumstances of the case, he charged more favourably to the defendant, than he had any right to expect, for the charge might very properly have been, that, taking alb things into consideration, no presumption of payment arose.

2. The President charged, that inasmuch as the legacy to fane Grubb was not payable till her age of eighteen, at which time the continental paper money was not current; the case was not within the Act of April, 1781, and the plaintiff was entitled to recover the nominal amount of the legacy in specie. Was this opinion right or wrong? By the 4th Section of the Act of 3d April, 1781, it was enacted, that, ‘‘ in all cases between debtors and creditors, for debts or demands due and payable, or incurred before the 1st Margh, 1791, where the parties cannot otherwise agree* it shall be lawful for the Court to appoint auditors, who- shall have full ■power to- hear and examine the parties upon interrogatories, and also the witnesses, papers, and proofs, of the parties, and to liquidate and settle all debts and demands, and coritroversies subsisting hetween them, agreeably to the directions of this Act, where that- can be done ; but in cases where the Act shall not apply, then to settle the. samé according to equity and good conscience,'upon due consideration had, of the nature and circumstances of the case.” Now let us consider the nature of this case, and see how the Act of Assembly bears on it. Although the penal bill, on which this suit was brought, was a contract entered into between the 1st of _"January, 1777, and 1st of March., 1781, (in which case the Act of Assembly was to bé .applied, as appears by the 1st and 2d sections,) yet the real object of the obligation was, to secure the payment of a legacy, which is not a contracts and moreover, a legacy.not payable till.the year 1783; so that no suit could have been maintained on the penal bill, before the year 1783. It appears therefore, that this was one 6f the cases to'be settled by auditors, according to equity and_ good conscience, and not subject to a peremptory reduction, by the scale of rdepreciátion laid down in the Act of Assembly. And in truth, if ever there was a case, which called for a settlement according to equity and good conscience, it was this. It is extremely difficult, I might say impossible, to decide with certainty, what the testator intended. At the date of his will, (27th óf May, 1777,) the scale of depreciation is, two and a half paper, for one specie dollar.' At the •testator’s death, (May, 1779,) the difference between paper, and specie, was, as twenty-four to one. At that time, the will was consummate. Reckoning twenty-four for one, the legacy of four hundred dollars, was reduced to sixteen dollars and two thirds. . Is it .possible that a man of large fortune, who gave a tract of land to several of his sons,' could mean to provide for his daughter, by'giving her a horse, saddle, and bridle, and a bed, and furniture, with a legacy of only sixteen dollars and sixty-six cents ? The question will not bear a moment’s consideration. But what did he mean ? Most probably he'süpposed, as was generally supposed, that before his daughter came to the age of eighteen, the currency of the country, (which both at the time of making, his will, and at his death, was in a' state of progressive depreciation,) would be fixed at the value it had sustained before the war. But auditors might do justice, by taking into consideration, ^ value of his estate, the circumstances of the times, and other matters which might throw light on the.intention of the testator. We are not without authority to shew that this case should be settled by auditors. In Levan’s Adm. v. Frey, 2 Yeates, 320, the action was debt, on an obligation, dated 9th January, 1779, conditioned for the payment of eighty pounds, on the 10th of January, 1780. The plaintiff offered to prove, that the bond was given in lieu of another bond between the same parties, for a debt contracted long before the revolutionary war. Held, that the case was proper for auditors, and not for a jury ; and the Court declared, that if the plaintiff made out his case before auditors, he would be entitled to recover eighty pounds in specie, and interest. But what come home to the.póint, are the cases of Joseph, John, Thomas, James, and Benjamin Grubb, against these very executors, for legacies bequeathed by this same will, reported in 1 Teates, 193. These five suits were referred to auditors who reported in favour of the plaintiffs, fixing the value of' the legacies equal to specie. I am therefore of opinion, that it was going too far, for the Court below to say peremptorily, that the plaintiffs were entitled to recover the nominal amount of the legacy, in the present current money of the country. It would have been more proper, to refer the case to auditors, after the precedent in Levan’s Adm. v. Frey.

3. But the third part remains for consideration. The defendant’s counsel contends, that the proceedings in the Orphans’ Court, and in the Supreme Court, on the appeal, are conclusive evidence of the payment of this legacy. If so, there is an end' of the plaintiffs’ action. Let us examine those proceedings then. As to the payment of four hundred dollars into the Orphans’ Court, on the 6th of March, 1781, in satisfaction of the legacy bequeathed to Jane Grubb, it was, as a judicial proceeding, a mere nullity. The legacy was not due, Jane being under the age of eighteen ; and if it had been due, it should have been paid to herself. There was no suit depending in the Orphans’ Court, no account settled. And the reason assigned for the payment, was a very bad one. For, granting that the depreciated paper had really been received, in payment of a debt due to the testator, it was uniust to throw the wholé loss oh the child, for the .benefit of George McCullough, to whose wife the residue of the personal estate was devised,, after payment of debts and legacies. Without doubt, the Orphans’ Court travelled out of its jurisdiction, in receiving this deposit on account of the infant, and this the counsel for the ■ plaintiffs concedes. But he relies on the subsequent settlement of the administration account, confirmed, as he supposes, so far as concerned the payment of this legacy, on an appeal to this Court. It is unnecessary to consider the general effect, of settlements in the Orphans’ Court. We are now on the subject of a legacy, and the question is, whether a legatee is concluded by a settlement to which he is no-party, in which the executor is credited for the payment of the legacy. I'have never heard of proceedings in the Orphans’ Court, to .compel payment of a legacy. There is no Act of Assembly authorising a suit of that kind, but there is an Act made expressly for the purpose of enabling legatees to sue for arid recover their legacies in the Court of Common Pleas; which is a pretty strong indication "of the sensé of the Legislature, that the subject was not within the jurisdiction of the Orphans’ Court. Now it would be most extraordinary indeed, if the Courts to whom jurisdiction in matters of legacy is assigned by .positive law, should be concluded by an account settled ip another Court, which did not possess that jurisdiction. Granting that a decree of the Orphans’ Court would be at least prima facie evidence of all receipts and disbursements, on account of debts due to and from the testator’s estate, funeral expenses, &c. (whether it would be conclusive against the legatee, as to these matters I give no opinion,) and supposing, for argument’s sake., that it would be prima facie evidence of the payment of the legacy, upon which also I express no opinion, yet it is Very certain, that it cannot be conclusive evidence of payment. As to the appeal to the Supreme Court, even if they had decided on the subject of the legacy, it would not have been conclusive, because the decision would have been made by them as a Court of Appeal, and therefore, not binding when they came to try the issue of. payment in a suit at common' law, for the recovery of the legacy; the judgment on the appeal, must partake of the nature of the judgment appealed from. Therefore. if the Orphans’ Court could not make a conclus've decree, on the subject of payment of a legacy, neither would the decree of the Supreme Court be conclusive, when made on the same subject, in their appellate capacity. But the truth is, that the Supreme Court never made any decision on the subject of the legacy : the record shews, “ that they reversed the decree of the" Orphans’ Court, as to the sum of eighty seven pounds, ten shillings, directed to be charged against the accountants, and ordered that the accountants should be credited with that sum,”; and nothing more appears. Neither does it appear, that Jane Grubb was a party to the proceedings, either in the Orphans’ Court, or in this Court. I am clearly of opinion, therefore, that the President of the Court below was right, in charging the jury, that these proceedings were not conclusive evidence of the payment of the legacy in question. On the whole, I am for reversing the judgment, and ordering another trial.

Judgment reversed, and a venire de novo awarded.  