
    
      Executors of J. J. Arden against the Executors of J. Arden.
    
      Aug. 29th and October 13th.
    in a suit between the representatives of a father, and the representatives of liis son, where all the matters in controversy were referred to a master, the court refused to allow the exceptions made to the report; the transactions being very stale and ancient, and most of them family dealings and concerns, and the parties, and their witnesses, having been fully examined before the master.
    Though the statute of limitations is no bar to p. legacy, yet the court, in regard to very stale demands, will adopt the provisions of the statute, in the exercise of their discretion. Though a lapse of 30 years affords a presumption that a legacy has been paid, yet that presumption may be repelled by circumstances.
    Where a testator directed his executors to sell his real estate, to pay debts and legacies, in case of a deficiency of the personal estate; and a bill filed by the executors of a legatee and creditor, prayed a sale of the real estate, the executors of the testator having admitted that the personal estate was insufficient, the court directed a master first to ascertain and report whethei the executors had duly administered all the assets, before recourse could be had to the land, or determining whether the devisees in remainder were to be brought in.
    
      JACOB ARDEN, the defendants’ testator, being seised and possessed of considerable real and personal estate, on the 15th of April, 1778, made his last will, by which he gave to his son, theplaintiffs’ testator, a legacy of200/., payable three months after the testator’s death; and he also gave a legacy of 100/. to his daughter E,, and, for want of cash to discharge the said legacies, he directed and empowered his executors to sell any part off his estate they might think best, for that purpose.
    The estate of the defendants’ testator was indebted to the plaintiffs’ testator, for 52 dollars and 36 cents, on account, and for three several bonds, executed by J. Arden, in 1766, 1767, and 1771, to several persons, and by them assigned to Jacob J. Arden, in 1787, and 1793, the amount of which? with interest, to the 19th of October, 1804, was 1,152 dollars and 35 cents. It was admitted, by the plaintiffs, that 100/., part of the legacy, had been paid; but they claimed, as due to them from the defendants’ testator, the sum of 2,261 dollars and 6 cents.
    The plaintiffs’ testator made his will in June, and died in July, 1801.
    The plaintiffs, in their bill, charged that the defendants refused to give an account of the real and personal estate of their testator, pretending that there was not enough to satisfy the debts and legacies, &c., and that they had no power to sell the real estate, &c. The bill prayed relief, &c., and for an account, and that so much of the real estate of the defendants’ testator as might be necessary to pay and satisfy the plaintiffs’ claim, might be sold, &c.
    The answer of the defendants admitted all the material facts stated in the bill, except the amount of the debt claimed. On the 17 th of May, 1813, there was an order of reference to a master to take an account, and to ascertain and report upon all the matters contained in the pleadings, and by consent, to examine the parties on oath, and all witnesses produced on either sido.
    On the 14th of January, 1814, the master "made a report that there was due to the plaintiffs, upon the legacy, bonds, and several accounts mentioned in the pleadings, the sum. of 1,435 dollars and 89 cents, according to the schedules annexed to his report.
    To this report the defendants made the following exceptions : ' '
    1. That no credit was given to the defendants for 100Í. stated to have been received, on the 15th of July, 1796, by the plaintiffs’ testator, from James Delancey, with interest.
    2. That no credit was given for 151., due to the defendants’ testator, for house and rent, for S., at H., in 1782.
    3. That no credit was given for 3361., for board of plaintiffs’ testator, his wife and children, from 1775 to 1782 ;
    4. Nor for 361., paid by the defendants’ testator for a substitute in the army for the plaintiffs’ testator, in 1776;
    
      5. Nor for 1925 dollars, the amount of certificates of part of the estate of the defendants’ testator, the inventory of which was taken by one of the plaintiffs ;
    6. Nor for 61., for barn rent, &c., in 1782 ;
    7. Nor for 3l. 2s. for articles furnished plaintiffs’ testator In 1784.
    8. Because Th. Arden, jun., was examined as a witness before the master.
    9. Because the legacy, after a lapse of 30 years, ought to have been presumed to have been paid.
    The plaintiffs expected to the report, because the defendants’testator had been credited for a butcher’s stall IDOL instead of 171.'
    These exceptions were reserved until the final hearing of the cause.
    
      R. Riker, for the plaintiffs.
    
      Burr, contra.
   The Chancellor.

The validity of the charges specified in the exceptions, depended upon the proofs before the master, and I see no sufficient reason to interfere with his rein respect to either of' those charges which have not been allowed. Some of them were not supported by proof, and others do not appear ever to have been made and intended, by the defendants’ testator, as debts to be refunded by the son.

The transactions referred to are stale and ancient, and the more loose and difficult to unravel, because' they were family dealings, and concerns between the father and son. It would be hazardous to sift too nicely such charges. The master was directed to take an account, and the parties have had a full and fair hearing before him, as well with their proofs as with their allegations. The demands on the part of the plaintiffs were chiefly founded on unquestionable vouchers, such as the will and the bonds; and the only objection to them arose from the presumption of payment, founded on the lapse of time. But these charges, brought forward on the part of the defendants, were destitute of any real accuracy and authenticity, and seem to have been set up more for the purpose of embarrassing the counter claims, than from any real sense of their solidity.

The objection to the demands of the plaintiffs, on the ground of time, is, prima facie, of great weight. After a lapse of 40 years, and when the representatives of the real and personal estate were all dead, the presumption of payment of a legacy was suffered to prevail, though the parties Were admitted to make proof to repel the presumption, but it was not sufficient. (Jones v. Turburville, 2 Vesey, jun., .11.) And, in a subsequent case, the Master of the Rolls thought that 35 years would be sufficient to bar a legacy, on the presumption of satisfaction. (2 Vesey, jun. 272. Pickering v. Stamford.) There is no legal bar by force of the statute of limitations to a legacy. It cannot be pleaded, but still the court, justly averse to giving countenance to very stale demands, adopts the provisions of the statute asa guide.in the exercise of its discretion. (Higgins v. Crawford, 2 Vesey, jun. 571. Prince v. Heylin, 1 Atk. 493. Stackhouse v. Barnston, 10 Ves. 466—7.) In the present case, however, the presumption of payment, both as to the legacy and the bonds, is sufficiently repelled. The executors, who were to pay the legacy, are alive, and parties to the suit, and one of them expressly admits, that only one moiety of the legacy has been paid ; and he also admits payment of interest, from time to time, on the bonds, and that they are still due. In addition to this answer of one of the defendants, he has been examined before the master, under the order of reference, and his credit submitted to inquiry. In this case, and upon these proofs, we must take the admission of the only competent executor, and it will not do to set aside these admissions on mere surmise of some collusion. The question, on the fidelity of the defendants, as trustees, is not now in issue, and it is averred, and so I should infer, (as the objection has not been raised until now,) that the examination of Th. Arden was by consent, and at the instance, and for the benefit, of the other defendant; ■ and if the legacy and bonds are due in any part, interest thereon follows as of course.

October 13th.

The exceptions were, accordingly, disallowed, and the report confirmed.

As the cause was set down for final hearing, as well as upon the exceptions, another point submitted was, whether a decree for the sale of the real estate ought to be made. The prayer in the bill was for a sale' of so much of the real estate as should be necessary to pay the debt, and the answer of the defendants admitted the insufficiency of the personal, and the sufficiency of the real, estate. The debts were not charged upon the real estate, but the executors were directed,, in case the personal ,estate failed, to sell so muck of the real estate as should be requisite to pay the legacies* An objection was made, that the devisees were not parties.

The cause cbming on again, upon this last point, it was referred back to the master, to ascertain and report whether the executors had duly administered all the assets. This was necessary to be ascertained, before recourse could be had to the land, or before it was requisite to determine whether the devisees in remainder,- after the termination of the life estate of one of the executors, were to be brought in.

Order accordingly, 
      
      
         Note. The question of parties was not, afterwards, agitated, as certain lands were directed to be sold, which the executors had purchased after the testator’s death, and with his funds.
     