
    GEORGE W. BROWN AND WIFE, ADMINISTRATOR AND ADMINISTRATRIX OF JOHN M’CALL, DECEASED, APPELLANTS, VS. ISAAC M’CALL, SOLE DISTRIBUTEE OF THE INTESTATE, APPELLEE.
    In general, after the lapse of twenty years, the law will presume that to have' been done which should have been done; but this presumption does notarise until twenty years after the time stipulated for performance. The court canno't, therefore, from this lapse of time, presume that an administrator has paid off a distributee who was an infant for twenty years after the date of the administration bond, and who instituted proceedings against the administrator in seven years after coming of age.
    Where the administrator made no annual returns until citation to account before the Ordinary, and then made a return of transactions upwards of twenty years before, he is not entitled to commissions; nor is such return evidence of the insolvency of the debtors named in the inventory.
    
      Before Mr. Justice O’Neall, at Union, Fall Term, 1836.
    the following is the report of the presiding Judge :
    - This was an appeal from the Ordinary, on the trial of which,- before me,the jury found a special verdict, upon which I pronounced judgment, directing the decree of the ordinary on the accounts to be corrected in several particulars.
    The grounds of appeal make it unnecessaiy that the whole case should be reported. The intestate, John McCall, died in 1807, leaving his widow, and the appellee, his only child, not exceeding one year old. The inventory and sale bill were returned in 1807, but no other return ever was made until after the summons from the’ordinary, issued at the instance of the appellee, was served upon the appellants; they then made a return, setting out that several of the debts embraced in the inventory were insolvent. The summons to account was issued in 1834.
    The appellants contended — 1st. That the lapse of time, 27 years, raised a presumption that regular returns had been made, and that the appellee had been paid. 2d. That they were entitled to commissions. 3d. That the return made after the issuing of the summons to account, was evidence of the insolvency of the debtors named in the inventory. My judgment was against the appellants on all these grounds. The first would have been unanswerable, and must have availed them, had it not been for the rninoiity of the appellee for twenty years. During this time no presumption could arise against him.- It is unnecessary to adduce arguments in support of this position. It was decided by the Court of Appeals, in the case of Boyd Sf Keels ¡ from the Court of Equity for Sum-1 ter, in December session, 1830. The remaining 7 year's could not raise £i presumption in law against the appellee. As to the 2d and 3rd grounds, ] never have been able, from the arguments of the learned counsel, to discover the legal reason why he supposed they ought to prevail. The appellants never made an annual return upon their intestate’s estate; after suit commenced* they made a return ; but this was, or pretended to be, of transactions 25, 26 or 27 years before. To allow commissions under such circumstances, would violate both the letter and sprit of the Act of the Legislature. To allow that return tobe evidence to discharge the defendants, would also be a violation of a first principle, which does not allow a party to manufacture evidence for himself.
    The appellants moved for a new trial, on the grounds taken below.
    
      A. W. Thompson, for appellants.
   Curia, per

Evans, J.

By law, the administrator was bound to do three things. 1st. To return an inventory,and appraisement of the estate. 2d. To make annual returns to the ordinary. 3rd. To pay over the surplus after the payment of debts, to the distributee.

It appears from the ordinary’s office, that he performed the first. Of the performance of the other two, there is no evidence, except the presumption arising from the length of time. So that we are to enquire whether the facts of this case are such as will authorize us to give the appellants the benefit of that presumption. In general, after a lapse of 20 years, the law will presume that to haVe been done which should have been. But when does the time begin to run 1 If a man enter into a bond with a condition to pay money, or to perform any other act, presently, after 20 years the presumption of payment will arise. But if the condition be, that he will pay the money, or do the act, at the expiration of ten or twenty years, then l apprehend the presumption does not arise until 20 years after the time stipulated for performance. This principle is very clear, and is in conformity with all the authorities. Let us now see how this principle applies to this case. Can we presume that he has paid off the distributee, who was an infant for 20 years after the date of the bond, and who instituted this proceeding in the court of ordinary within about 7 years after he came of legal age % This question is answered by the enquiry, when was he bound to pay over the surplus to the distributee ? It is very clear, that during his infancy, the distributee was incapable of settling with the administrator. It would have been not only imprudent, but a violation of the administrator’s duty, to have paid over the estate to the infant. I assume, therefore, that he was not bound to pay until the appellee was 21 years old. Since which period, only 7 years, instead of 20 years, have elapsed. The case of Boyd vs. Keels, decided in 1830, is conclusive on this point; and if that had been a reported case, I should not have thought it necessary to say more than to refer to it as settling the question; The only difference between the cases is, that in that case; Boyd filed his bill within 2 years after he was of age; and in this, the appellee did not institute his proceedings before the ordinary, until he was 27 years old. i The application of these principles will enable us to’ decide the other question without difficulty-.- When was the administrator bound to make returns to the-ordinary ? The answer is, annually; From 1808 to 1834, we may fairly presume he made returns; but the difficulty is, what did he return, and in which of those years did he account for the money, and how did he account for it? After a lapse of 20 years, he may legally ask us to give him the benefit of the presumption that he accounted annually before the ordinary ; but it seems to me, he asks too much when he requires that -we shall presume not only that he accounted, but also what his accounts contained. The difficulty arises; not in ascertaining the principle, but in applying it beneficially to the appellant’s casé. He claims the benefit of a presumption that he accounted before the ordinary annually, for the purpose of allowing him commissions, without furnishing any means of ascertaining either the sums on which commissions are to be allowed, or at what time they are to be credited. This is asking us to presume too much. Upon' the whole, it seems to me the appellants must fail; and the motion is refused.

Gantt, Richardson,- Earle, and Butler, JJ. concurred;  