
    Webster et al. v. Bible Society.
    Executors—Legacies— When not a continuing and subsisting trust—■ Action for recovery of— When accrues—Statute of limitations—• When bar complete.
    
    1. An action to recover the amount of a general pecuniary legacy, with respect to which the executor is not charged with any duty except to pay it out of the assets when due, is not founded on a continuing and subsisting trust, nor exempt from the operation of the statute of limitations, although the will creates some special trusts in the management and disposition of particular property by the executor.
    2. Before the adoption of the code of civil procedure, cases for the recovery of such legacies were within the concurrent jurisdiction of courts of law and equity, and in either tribunal were subject to the statute of limitations.
    
      3. The cause of action upon such a legacy accrues, when, by the terms of‘the will or rules of law it becomes due and payable, and the executor has sufficient assets applicable thereto. Where the right of action accrued before the code, but the action has been commenced since, it is governed by the statute in force when the right accrued.
    4. In order ,to set the statute running in favor of the executor, it is not necessary that he resign, or renounce administration of the estate, nor, that the legatee have actual notice of the legacy or will. Nor will the bar of the statute be defeated, after it once becomes complete, by an order of the probate court directing final settlement and distribution of the estate, or by the payment of other legacies by the executor.
    (Decided January 24, 1893.)
    Error to the Circuit Court of Cuyahoga county.
    The original action was commenced in the court of common pleas of Cuyahoga county, on the 16th day of January, 1886, by the American Bible Societjq against Horace P. Weddell, administrator with the will annexed, of the estate of Peter M. Weddell, deceased, and John H. Webster, assignee for the benefit of the creditors of Horace P. Weddell, to compel the assignee to allow, and pay out of the assets in his hands, in preference to other creditors, a legacj'-- of one thousand dollars, bequeathed to the plaintiff b3r the will of Peter M. Weddell, with interest on the same from the 17th day of May, 1848. B3^ the will, which was executed on the 27th day of April, 1847, after making certain provisions for his widow, the testator gives a number of pecuniary legacies to various persons and societies, among them, one thousand dollars to the plaintiff, directing that they all be paid as fast as the executors are able to realize money from the personal assets, or sale of real estate; and bequeaths and devises all •the residue of his estate to Horace P. Weddell, his only child, and heir-at-law/
    On the 17th day of May, 1847, the will was admitted to probate and record, in the county of Cuyahoga, where the testator resided at the time of his death; and, there being no executor named in the will, Horace P. Weddell and Dudley Baldwin were appointed, and qualified, as administrators with the will annexed. They gave due notice thereof by publication in the newspapers, as required by law, and entered upon their duties as such administrators, and so continued until the 6th day of November, 1854, when Baldwin resigned, and his resignation was duly accepted by the court. On the 10th day of July, 1884, Horace P. Weddell made an assignment for the benefit of his creditors, to his co-defendant Webster, who qualified at once, published notice thereof, and proceeded to administer the assignment. On the 15th day of January, 1886, the plaintiff presented its claim for the legacjr to the assignee, who refused to allow it, and thereupon the action below was commenced. One of the defenses set up, was, that the action was barred bj' the statute of limitations; or, if not so barred, the demand had become stale, by reason of the great length of time which had elapsed after the plaintiff’s right of action accrued before the commencement of the suit, being a period, as is averred, of more than thirtjr-eight years. The cause, having proceeded to judgment in the court of common pleas, was taken on appeal to the circuit court, where a finding of the facts was made, which, as far as they are deemed material to the questions considered in the report of the case, are, in addition to those already stated, in substance as follows: Upon the resignation of Baldwin, as one of the administrators, Horace P. Weddell took possession of all the real estate and personal property then remaining, a part of which, exceeding in value the amount of the legacy bequeathed to the plaintiff, was embraced in the assignment he subsequently made for the benefit of his creditors. On, or before, the 17th day of May, 1848, the administrators had realized from the assets of the estate, money, applicable thereto, sufficient to pay the plaintiffs’ legacjr in full, but it has not in fact been paid. Horace P. Weddell did not disclaim the trusts imposed upon him by the will, and settled a legacy in 1871, and another in 1875; and on the 10th day of March, 1884, the probate court required him to file his final account, and made a general order of distribution. The plaintiff had not actual knowledge of the legacy until October, 1885, but has had a general agent in Ohio since 1854, who was instructed to notify all judges of probate, and other officers having like jurisdiction, to forward to it, copies of all wills in which any legacy was given to it.
    Upon these facts the circuit court held the plaintiff’s action was not bajred, or its demand stale, and gave judgment requiring the assignee to allow the plaintiff’s claim in the sum of $8438.66, being the amount of the legacy with interest from the 17th day of May, 1848, to March 29, 1889, and h> pay that amount, with interest, from the first day of that term of the court, in preference to the claims of general creditors.
    The defendants prosecute error to this court to reverse that judgment.
    
      Webster & Angelí, for plaintiff in error.
    I. a. We understand that it is unquestionably the law that the statute of limitations does not run against an express trust, or against a continuing or subsisting trust, as the rule is phrased in our statute of limitations. It becomes necessary to determine, for the purposes of this action, what is an express trust; what is a continuing and subsisting trust. We understand that within the meaning of this rule an express trust is one which is peculiarly within the cognizance of a court of equity. It is such a trust as is created only by will or by deed. It is a trust which involves the supposition that a personal confidence was placed in the trustee by the creator of the trust. The court will ascertain by an examination of the will, that the testator named no executors. He left certain legacies; he stated that he wished certain lands sold, if necessary, to pay these legacies. He did not impose upon any one the personal obligation to see that his wishes in this respect were carried out. He evinced no determination to impose any special confidence, or any special trust, upon an3>" one. He made the bequests; he left the legacies. By the fact of his omission to name executors in his confidence in the statutory scheme of administration law, he trusted the carrying out of his wishes to the provisions of the existing law upon the subject. He created no trust. The express trusts which are outside of the statute of limitations are those which are technically cognizable only in a court of equity. Wood on limitations, §200, 201; Pomeroy’s Equhy Jurisprudence, sec. 152, 156; McDonald v. Aten, et al., 1 Ohio St., 293; Cadbery v. Smith, Law Report, 9 Equity, 37; Carr Adm'rx. Chapman, 5 Leigh, (Virginia) 174; Berman v. Brooks, 9 Pick., 242.
    
      b. We submit that the finding of the court that there were funds in the administrator’s hands in money, in 1847, sufficient to pajr this legacy, brings it within the rule announced in §169, of Angell on Limitations. Scott v. Jones, 4 Clark & Fin., 383; Freak v. Cranfeldt, 3 Myl. & Gr. Ch. 409; Souzer x. DeMeyer, 2 Paige N. Y., Ch., 577; Angell on Limitations, §170.
    The distinction which we seek to draw between the case of so-called legal trust, or a statutory trust, where all the duties imposed upon a man are those imposed by statute, and the technically express trust, which is cognizable only in a court of equity, is well illustrated in the case of Paschall v. Hinderer, 28 Ohio St., 568. See also Yearly v. Long, 40 Ohio St., 27; Douglas v. Corry, 46 Ohio St., 349; Robinson's Committee v. Elam’s Ex'rx, 14 Southwestern, 84; Beers v. Myers, 28 Ill. Appeals, 648; The Matter of Underhill, 1 Connolly, 541, N. Y. Sur. Rep.; Kane v. Bloodgood, 7 Johns. Ch., 110; Loder v. Hatfield, 71 N. Y., 92; Butler v. Johnson 111 N. Y., 204; American Bible Society v. Hebard, 51 Barber, 570; 41 N. Y., 619; Matter of Neilley, 95 N. Y., 383.
    II. The correctness of our position, that the trusts created bjr the appointment of Mr. Weddell as administrator with the will annexed, are legal in their character, and not such as are within the exclusive jurisdiction of a court of equity, is further illustrated by the powers, which, it has been adjudged by our courts, belong to the administrator. -The administrator with the will annexed has no power under our; law, except as it is conferred upon him by statute, to sell land. The powers given to the executor do not pass to the administrator with the will annexed, except by force of statute. Wills v. Cowper, 2 Ohio, 124; Leiby v. Parks, 4 Ohio, 469; Ludlow v. Johnson, 3 Ohio, 559; Elstner v. Fife, 32 Ohio St., 358.
    III. It may be urged, as it was in the court below, that the statute did not begin to run until the time when the plaintiff knew of the existence of this will. It was urged that the statute does not begin to run until the discovery of the fraud, and we are referred to Carlisle v. Foster, 10 Ohio St., 198. This is, however, no case of the discovery of any fraud. The rule in equity in this state is laid down in Douglas v. Corry, Executor, 46 Ohio St., 354; Wood v. Carpenter, 101 U. S., 135; Howkv. Minnick, 19 Ohio St., 462; Hemphill v. Moody, 62 Ala., 510.
    IV. Independently, however, of the statute of limitations, we submit that this case comes under the rule, that courts of equity do not entertain stale demands. This is a well known rule of courts of equity independent of the statute of limitations. It has been very frequently applied in cases of legacies. We have all the circumstances in this case which brings it under the rule of the third exception stated’ by Chancelor Kent, in Kane v. Bloodgood, 7 Johns. Ch. Matter of Neiliey, 95 N. Y., 383; Jones v. Tuberville, 2 Ves. Jr., 11; Campbell v. Grayham, 2 Clark & Fin., 429; Anderson v. Burwell, 6 Gratten, 405; Carr’s Adm’r v. Chapman, 5 Leigh, 174; Stampner's, Adm’r v. Garrett, 31 Gratten, 550; Broderick’s Will, 21 Wallace, 519.
    
      G. M. & A. W. Barber, for defendant in error.
    As to the first two grounds of error complained of, that the claim is barred by the statute of limitations, and that it is stale in equity, a statement of the case and the finding of the court is a sufficient answer. It cannot be claimed that any statute of limitations commenced to run before the appointment of the administrator with the will annexed. There is therefore no statute of limitation applicable to the case except such as apply between an executor or administrator with the will annexed and a legatee.
    
      Here is a will which expressly mentions executors and expressly invests them with a trust to effectuate the intentions of the testator. It cannot be claimed that such a trust, once accepted and entered upon by executors named in the will, would not be a continuing and subsisting trust until it was executed or the trust denied.
    But the testator failed to nominate executors, and administrators with the will annexed were appointed by the proper court to carry out the provisions of the will. The plaintiff in error claims that the persons so appointed were not invested with anjr personal trust such as might become continuing and subsisting trusts—that because they were not named as executors in the will the trusts assumed by them were not express trusts and not exempt from the running of the statute, and cites Wood on Rimitations, sec. 200 and 201. We cite section 199 of the same author. Also Wood on Rimitations 72, 73, and 199; Angell on Rimitations, secs. 90, 16 and 169; Parker v. Ache, 1 Vern Cases in Ch., 256; 2 Williams on Executors, 2029; Thompson v. McGaw, 2 Watts, Pa. 161; 5 Watts, Pa. 225; Higbee v. Bacon, 8 Pick. 484; Schouler, §123; Underhill, Raw of Trusts and Trustees, page 9, Art. 7; Underhill, page 41; Dodkin v. Bunt, Raw Reports, 6 Equity, 580.
    The trust was created by the words of the will and was as complete an express trust as was ever created by a testator, and was such a direct and technical trust as under the common law fell within the peculiar, proper and exclusive jurisdiction of a court of chancery. See Angell on Limitations, sec. 168, 169; Story’s Equity, secs. 980, 981 and 1194É1; Smiths. Colloway, 7 Blackf., Ind., 86; Decautche v. Savatier, 3 Johns. Ch., 89; Leak v. Leak, 75 Va., 800, 802; 8 Pick. 484 (488); 3 Sneed (Tenn.) 157.
    What constitutes a stale equity depends upon the facts and circumstances of each particular case and not on the lapse of time alone. Paschall v. Hinderer, 28 Ohio St., 568. The trust in that case arose before the code and in that as well as other respects is similar to our case.
    Before the code courts of equity had exclusive jurisdiction of continuing and subsisting trusts. By the code all actions became civil actions, and by sec. 6200, Revised Statutes, a civil action by legatees, among other claimants for distributive shares of an estate against executors or administrators, upon order of distribution, might be brought, to be governed in all respects as other civil actions, therefore the exception to the general statute of limitations became necessary to protect continuing and subsisting trusts.
    Time does not begin to run against a cestui que trust until he has knowledge or may fairly be presumed to have knowledge of the existence of the trust. Carlisle, et al. v. Henry D. Foster, et al., 10 Ohio St., 198; Hill on Trustees, 168-523.
    No title to the property, devised to H. P. Weddell as residuary legatee, vested in J. H. Webster except as subject to the trusts on which said Weddell held it. H. P. Weddell did not avail himself of the provisions of sec. 5997, Revised Statutes, by giving bond as residuary legatee, but gave bond as administrator -with the will annexed under sec. 5996. Therefore his title to the property was by his own act left subject to the provisions of the will, and therefore the creditors of Everett, Weddell & Co. or himself can share nothing in the estate of H. P. Weddell until these trusts are paid in full. Rogers, Assignee v. Miranda, 7 Ohio St., 179; Brock v. Bateman, 25 Ohio St., 609.
    The exclusive jurisdiction of the probate court in the settlement of the estates of deceased persons does not extend to claims under an order of distribution, which includes legacies.
    A final account; so as to relieve his bond, cannot be filed until all the distributees have been paid. Revised Statutes, 6175.
    The fact that he never filed such account and continued to pay legacies as late as 1884, shows conclusively that he did not claim the estate was settled and did not disclaim or repudiate any obligation that might rest upon him under his father’s will. And when the order of distribution was made in 1884, he paid the legac}^ to Richard Weddell to the administrator of his heirs, but filed no final account. Schouler on Executors, sec. 527; Dufour v. Dufour, 28 Ind., 421.
    After 30 days from the order of distribution any person interested in the order of distribution as creditor, legatee, etc., may file a petition in the probate court to collect the claim to which he may be entitled. Sec. 6195 and sec. 6200 gives the court of common pleas concurrent jurisdiction with the probate court.
    This action is brought in the court of common pleas under sec. 6200. The probate court had found that all claims against the estate other than legacies had been settled, but some of the legacies given by the will had not been paid. A general order of distribution was made and he was ordered to pay all unpaid legacies and file his final account.
   Williams, J.

In the disposition of the case, the relation of an administrator -with the will annexed, to the estate he represents, and his duties and obligations to legatees, may be regarded as not different from those of an executor of the will. The question is therefore presented, whether the obligation of an executor to paj' a general pecuniary legacy, after it becomes due and payable, and there is sufficient money in his hands applicable thereto, constitutes such a trust as will prevent the lapse of time from operating as a bar to an action for its recovery. In the determination of the question, it is not important whether the right of action accrued before the adoption of the civil code, or afterward; since, that provision now contained in section 4974 of the Revised Statutes, which excepts cases of continuing and subsisting trusts from the limitations upon the time within which actions may be commenced, is but the legislative enactment of the rule which had theretofore existed. It is well settled since the code, and was so before, that only those cases of technical, continuing, and subsisting trusts which are within the proper, peculiar, and exclusive jurisdiction of courts of equity, are exempt from the operation of statutes of limitation. Paschall v. Hinderer, 28 Ohio St., 568; Yearly v. Long, 40 Ohio St. 27; Douglas v. Corry, 46 Ohio St., 349. Other trusts, which might be the ground of an action at law, have always been subject to such statutes. Okey, J., in Carpenter v. Canal Co., 35 Ohio St., 317, and cases above cited.

Courts of equity originally took jurisdiction of suits tO' administer and distribute the estates of deceased persons, only, where discovery of assets was necessary, special trusts were involved, or the rights of married women, infants, and others under disability, were affected; but eventually came to exercise jurisdiction generally, though not exclusively, in -the administration of estates. Suits to recover legacies were embraced in that jurisdiction. With respect to them, some courts held, that the executor could not be sued at law unless he assented to the legacy; his assent being considered equivalent to an admission of assets. If he did not assent, a court of equity was regarded as the appropriate jurisdiction, because it could take control of the whole subject matter of the distribution, and so mould its orders and decrees as to protect the executor and parties in interest, by requiring the legatee, when necessary, to give bond wdth sureties to refund any part of the amount paid him. The power of protecting the executor in that mode, was conferred on courts of law in this state, by the act of March 23, 1840, Swan’s Statutes, (1841) 360, when payment of a legacy was required within the time allowed creditors to prosecute actions on their claims; and that provision, has ever since continued to be a part of the statute law of the state. The act also enjoined upon executors and administrators, the duty of converting the assets into money, paying the creditors, and making distribution to the legatees and other distributees, according to their respective rights; and since that act, the assent of the executor to the legacy has no longer been, if it were before, requisite to an action at law by the legatee; nor, has resort to equity for the recovery of the legacy been necessary, except, it may be, in special cases involving grounds for other relief. In Pomeroy’s Equity, sec. 187, that author says: “In the same general class of pecuniary reliefs belonging to th'e concurrent jurisdiction, and united together by a tie of close analogy, are suits for the recovery of legacies, suits for the recovery or enforcement of donations causa mortis, and the various suits, involving some equitable feature or incident, brought in connection with or in aid of the administration of the estates of deceased persons. Although the administration of decedents’ estates has, in this country, been committed to courts of probate, and the former jurisdiction of equity to entertain ‘administration bills’ for the complete and final settlement of such estates does not practically even if nominally exist, still there are many special cases belonging to the concurrent jurisdiction in which suits may be brought to obtain pecuniary recoveries against executors and administrators, in the process of and connected with their work of administering and settlement.”

Actions for the recovery of pecuniary legacies being within the concurrent jurisdiction of courts of law and equity, statutes of limitation have been held to be applicable to them in either tribunal. As said by Johnson, J., in Paschall v. Hinderer, 28 Ohio St., 577: “In all cases where there was a concurrent jurisdiction of the courts of law and equity for breaches of trust, the rule was well settled that the equitable action was barred in the same length of time as the action at law.” In speaking of the defense of the statute of limitations in such cases, Story, J., in Pratt v. Northman, 5 Mason, 95, says: “In cases of concurrent jurisdiction it is clear, that courts of equity are bound by the statute of limitations equally with courts of law. That was the doctrine of Rord Redesdale, in Havenden v. Lord Annesley, 2 Sch. & Lefroy R., 607-630, and of Mr. Chancellor Kent, in Kane v. Bloodgood, 7 John’s Ch. R. 90. There are other cases, not of concurrent jurisdiction in which the statute of limitations is applied by courts of equity by way of analogy to the law, in which courts of equity follow the law, and give effect to its regulations upon equitable titles. In this last class of cases equitable exceptions may well be admitted and justified, because the bar is furnished by the court itself, and stands upon no positive legislation.”

In some of the states it is held, that independent of statutory permission, an action at law may be maintained to recover a legacy, when the executor has assets applicable thereto. Weeks v. Sowles, 58 Vt. 696; Prescott v. Morse, 62 Me. 447; Colt v. Colt, 32 Conn. 422. In other states, statutes have been enacted, providing for such action. In this state, as early as 1816, a statute was passed giving an action of debt on the bond of an executor or administrator, to any person injured, and authorizing the executor or administrator or his sureties to plead any matter which might be pertinent in their defense. Swan’s Statutes (1841) p. 162. And the act of March 23, 1840, Swan’s Statutes (1841) p. 373, provides, that suit may be brought on the executor’s bond, by a legatee, when he is entitled to the payment of his legacy; and that provision has been retained in the statutes of the state. The legacy is payable by forcé of the will. The amount payable is definitely fixed by it. And it needs no assent to, or allowance by, the executor to establish the legatee’s right, nor any order or judgment to ascertain the sum due on the legacy.

It was found, as a fact, by the circuit court, that in May, 1848, the administrators of the Weddell estate, had in their hands, “money applicable thereto, sufficient to pay” the legacy given by the will to the plaintiff. “Money applicable” to the payment of the legacy, means money which the plaintiff was entitled to have applied in payment, and imports that there were no debts or other obligations having preference over the legacy, to prevent the proper appropriation of the money in the hands of the administrators to its payment, or delay its recover}’- by the legatee. It was unimportant to the plaintiff’s right of action to recover the legacy, that the will imposed special trusts upon the administrators in the management and disposition of the real estate, or other particular property. They were charged with no trust with respect to the legacy, either in its custody, management, or control, and none existed, except in the broad sense, that a trust may be said to arise -whenever one man has in his possession money belonging to another which he is under a present obligation to pay over. The duty of paying the legacy belonged to the administrators, as such, and not as trustees of a continuing trust. In the case of the American Bible Society v. Hebard, 51 Barb. 552, which was affirmed by the Court of Appeals, 41 N. Y. 619, a bequest was made of $1,200, which the executor was directed to invest in the purchase of a dwelling for the testator’s widow, to be held by her during her life in lieu of dower, if she elected to take under the will; and at her death, the dwelling was to be sold, one-half the amount paid to the plaintiff, and the other half to a missionary society. The widow died before the money was invested, without electing to take under the will. The court held, that the right of the plaintiff and the missionary society to the $1,200 vested at once on the death of the widow, and an action accrued to them within one year thereafter; and no suit having been brought within six years thereafter by the plaintiff, the action was barred. The court said: “Where there is a strict technical and continuing trust which is cognizable only in a court of equity, no lapse of time will bar the claim of the cetui que trust. But this rule is confined strictly to cases of that character. That this is no such case seems to me extremely clear. There can, I think, be no reasonable doubt that this claim was cognizable in a legal action. Indeed such is clearly the character of the action brought. It is to recover a specific sum of money, bequeathed, and not to enforce a trust as such.”

We are of opinion that the plaintiff’s case is not one of a continuing and subsisting trust, against which statutes of limitation do not run; and the bar of the statute, if complete, was a valid defense to the action below. And, we think the fact that the plaintiff had not actual notice of the legacy, or the will, did not prevent the running of the statute. The will was a matter of public record, and the administrators gave the notice, by publication, of their appointment and qualification, required by law. The plaintiff had the same means of knowledge as other persons interested in the estate, and like all other persons was bound to take notice, unless there was some contrivance to prevent inquiry, and that is not claimed. Douglas v. Corry, 46 Ohio St., 354. Nor, did the order for the final settlement and distribution of the estate, made by the probate court on the 10th day of March, 1884, operate to revive the'plaintiff’s right of action, if theretofore barred, or otherwise establish its validity, or deprive the administrator of any legal defense then existing to it. That court was without jurisdiction to determine the state of accounts between the administrator and legatees or distributees, and did not undertake to do so. It could only make a general order for distribution according to law, of any balance in the hands of the administrator, leaving the rights of the parties with respect to it, to be inquired into when the distribution was sought to be enforced. Cox v. John, 82 Ohio St., 532. As said by Scott, J., in that case, the settlement in the probate court “had relation only to the accounts between the administrator and the estate; and not to the state of accounts between him and the several distributees.” Distribution according to law, is distribution only to such parties as have lawful claims; and hence, the order of distribution referred to, did not have the effect of precluding the administrator from setting up the statute of limitations, or any other legal defense, to the plaintiff’s action. Nor, was it necessary he should resign, or renounce administration, in order to set the statute running, or make its bar available as a defense. Neither did the fact that other legacies had been settled before, or after they were barred, prevent him from interposing that defense to the plaintiff’s claim.

We are aware that it has been held by the courts of New Jersey, and, it may be of some of the other states, that notwithstanding courts of law have concurrent jurisdiction with courts of equity in suits to recover legacies, the statute of limitations is no defense in either court. And some courts and authors have declared that the plea of the statute lias never been known in suits against executors. But we think the better rule, the one sustained by the better reason and authority, is that airead}1' stated as having obtained in this state. Our law favors the prompt and speedy settlement and distribution of estates, and has provided adequate remedies and procedure for the accomplishment of that result. Eimitations upon the commencement of actions against executors and administrators, are not more for their, protection, than for the security of the estates of deceased persons, and the repose of rights and titles derived from and through them.

The statute of limitations being available as a defense to the plaintiff’s action, the inquiry arises, when did the right of action accrue, and what lapse of time is necessary to bar it? The general rule adopted by the English courts of chancery, and in many of the American states, is, that pecuniary legacies become due and pajmble one j^ear from the death of the testator, and they accordingly bear interest from that time, unless a different time of payment is to be derived from the will. Wood v. Penoyre, 13 Vesey, 333; Rotch v. Emerson, 105 Mass. 431; Kent v. Dunham, 106 Mass. 586; Wheeler v. Hathaway, 54 Mich. 547; In re Spencer, 16 R. I. 25; Chambers v. Chambers, 87 Ky. 144. This rule, it is said by Eord Chancellor Redesdare, in Pearson v. Pearson, 1 Sch. & E- 10, was taken from the practice in the ecclesiastical courts, where a year was given the executor to collect the effects, and he could not be called upon before that time, because he could not know what fund there was, with which to pay. And in Wheeler v. Hathaway, supra, it is said, that “for convenience, the law, in the absence of statutory regulation, has prescribed the general rule that where no time of payment is named by the testator, and in the absence of any intention to be inferred from the will itself, such general legacies shall be raised and satisfied out of the testator’s personal estate at the expiration of one jmar next after his death. * * * This rule was founded on the principle that the assent of the executor to the legacy was essential before the title of the legatee to the legacy became complete. * * * The civil law fixed for the purpose a }^ear from the testator’s death as the time when the executor’s assent is presumed and when the legacy is payable. This rule has quite generally been adopted by the English courts. In the American courts, in the absence of statutes regulating the subject, legacies are regarded as due and payable at the end of the j-ear from the death of the testator. But in those states where statute or the judge of probate allows a year in which to pay debts and legacies, such legacies are not due until the end of a j-ear from granting letters testamentary, and the interest should be computed from that time.” The legacy being due and payable at the end of the year, like other overdue pecuniary obligations, bears interest from that time. This rule is stated by the supreme court of Michigan in Wheeler v. Hathaway, in the following language: “As a general rule, interest is payable on money on the ground of delay in paying the principal; and with respect to legacies it is payable on them from the time they are actually due.” There are many cases to the same effect.

It is not necessary now to determine how far, if at all, the rule is affected by our legislation, which makes it the duty of the executor or administrator to collect the assets of the estate within one year after the date of his bond, but authorizes the court of probate to extend the time for that purpose from year to year, not exceeding, in all, five years from the date of the bond. It was held by the Supreme Court of Rhode Island, in the Spencer case, supra, that where the will gave the executors five years in which to settle the estate, they could not be sued for the payment of legacies until the expiration of five years from the time of their appointment. Whether onr statute should have a like operation, need not now be decided; for if given that effect, it would not postpone the maturity of the legacy beyond the period to which the time for the collection of the assets should be extended.. By other provisions of the statute in force when the administrators of Weddell’s estate were appointed, they were required to “proceed with all diligence to pa}r the debts of the deceased,” and to that end, it became important that creditors should present their claims within a 3rear after the notice given by publication of the appointment of the administrators; for, having given such notice, no suit could be commenced against them by an3>- creditor, after four years from the date of the administration bond, unless new assets came to their hands, or the creditor’s claim matured after that time. The statute contained the further provision already referred to, that if the executor or administrator should be required by anyr legatee to make payment of his legacy within the period last above mentioned, the court might require the legatee to give bond, ■ with sureties, to refund so much of the amount paid as might be necessary to indemnify the executor or administrator against loss or damage on account of such payment. It may be fairly inferred from the statute, that a legatee can sue for the payment of his legacy before the expiration of the four years; but when he does, he may be compelled to give the bond and security therein provided for. The reason for fixing that period within which such a bond may be required, evidently was, that, as creditors might at any time within the four years sue the executor for debts dpe them, the amount paid the legatee might be needed to satisfy such creditors; and the bond was therefore necessary, or at least proper, for the protection of the executor. But not being liable to the suit of creditors after that period, the right to the payment of the legacy is then absolute, without such bond, or other qualification, if the executor have sufficient assets applicable thereto. And such, as we understand it, is the effect of the decision in Dawson v. Dawson, 25 Ohio St., 443.

The circuit court appears to have held, in accordance with the generally recognized rule, that the legacy bequeathed to the plaintiff became due at the end of the year from the appointment of the administrators; they then having, as that court found, assets applicable to the legacy sufficient for its payment; and, interest was accordingly allowed from that time. If that be.accepted as correct, the plaintiffs’ right of action for the non-payment of the legacy was then complete. And in any view that may be taken of our statutes, the cause of action accrued, not later than four years from the date of the administration bond. That would be the 17th day of May, 1851, before the adoption of the civil code, and the limitations prescribed by it, upon the time of commencing actions, would not apply. The case must be governed by the statute in force when the cause of action accrued. Revised Statutes, sec. 4974. It does not become important to determine by what particular provision of the statute the case is governed, for it is obvious the action was barred, if given the benefit of the provision allowing the longest period which could be extended to it. The action was not commenced until the 16th day of January, 1886.

We are also of the opinion, that if the plaintiffs action was not strictly within any provision of the statute of limitations, or if the statute was not applicable to it at all, the claim was a stale one when presented to the assignee. It has long been established that equity will refuse 'its aid, independent of the act of limitations, after great lapse of time. Reasonable diligence must be exercised in asserting their claims by those who seek the active aid of a court of equity. Tuttle v. Wilson, 10 Ohio 24.

In Tatam v. Williams, 3 Hare, 347, a bill by a surviving partner, against the executor of a partner who had died thirteen years before the institution of a suit for an account of the partnership dealings and transactions, charging that the deceased partner was indebted to the firm at the time of his death, was dismissed with costs, on the ground of the lapse of time; no new liabilities of the former partnership appearing to have arisen or become known, after the death of the deceased partner. In Baker v. Read, 18 Beavan, 398, a bill, after seventeen years, to set aside a purchase of the testator’s estate by his executor, at an undervalue, was dismissed on the ground of delay, although the court was clear that the sale, if recent, should be set aside. In Tuttle v. Wilson, supra, the claim of a widow for dower was held stale after the lapse of twenty-one years. Arid see Campbell v. Graham, 2 Clark & Fin. 429; Car's Administrator v. Chapman, 5 Leigh. 174; Stamper's Administrator v. Garnett, 31 Gratt. 550.

In the case before us, Horace P. Weddell was the residuary legatee under his father’s will, as well as one of the administrators of his estate; and after the resignation of Baldwin, was the sole administrator. He continued in the possession and control of the property, for upwards of thirty-seven years, contracting debts and liabilities, and finally made an assignment for the benefit of his creditors. During all that time, no demand was asserted by the plaintiff against him, or the property. If those who dealt with him, and gave him credit, were bound to take notice of the will, or actually knew of the bequest to the plaintiff, they might well presume, after the lapse of so long a time, that the estate was settled, and the property in his possession was his own; and deal with him upon the faith of it. Having done so, and the property assigned being insufficient to meet the indebtedness due them, contracted probably upon the credit of that property, the demand of the plaintiff, then for the first time asserted, after the expiration of nearly forty years, does not make a persuasive appeal to equity.

Judgmetit reversed, and jtidgmentfor defendant.  