
    John B. Barnwell, and others, v. Robert W. Barnwell, Executor of Wm. Hutson Wigg, and Wm. Hazzard Wigg.
    When a trustee Hoes an act importing a termination of the trust, as a final settlement, the statute of limitations "will run from that time but a payment to the father of the cestui que trusts who had no authority to receive, is not to be regarded as such a termination of the trust as will allow the statute to run from that time. [*232]
    Lapse of twenty years will raise the presumption of the payment of a legacy. [*233] A lapse of nineteen years after one of the legatees coming of age, will create such presumption against him, where the legacy had been paid -thirty-five years before to his father, and the executor was dead and his estate administered and disposed of [*231]
    Tried before Chancellor De Satjssure, at Coosawatchie, April, 1834.
    William Hazzard Wigg, by his will, dated day of , 1198, after giving several pecuniary legacies to his widow and brothers, and particularly a legacy of £150 to his brother, James Cuthbert, bequeathed to the children of his sister, Jane Hay Barnwell, the sum of £100; and directed that the aforesaid legacies should be paid only when his executor “ could make it ^convenient to his estate, and that until they were paid, interest from his death should not be allowed on them ; and L ‘ J that after'his debts and legacies were paid, his estate should be kept together for five years, commencing from the last payment of his debts and legacies, and the crops in the meantime be divided between his son, William Hutson Wigg, and his sons-in-law.” The testator, after providing for his daughter, gave at the expiration of the aforesaid five years, all the rest and residue of his estate, real and personal, to his son, William Hutson Wigg, with a limitation over, in case of his death before twenty-one years, and without leaving issue ; and appointed him executor. William Hutson Wigg qualified, and acted under 'the will, and in the year 1822, upon a suit being brought against him, paid without opposition or objection, to the representatives of James H. Cuthbert, the legacy of £150 and interest from the day of , 1803. He died in the year 1821, possessed of the mass of his father’s estate, and by his will merely appointed Robert W. Barnwell, the defendant, his executor, but made no disposition of his property, which descended, and is now in the possession of his only son and heir, William Hazzard Wigg, the other defendant. At the death of the testator, William Hazzard Wigg, his sister, Jane Hay Barnwell, was the wife of John B. Barnwell, senior, and her children were John B. Barnwell, junior, aged then about twenty years, Jane Barnwell aged eleven years, Edward W. Barnwell aged nine years, and Cuthbert Barnwell, aged three years. Jane Barnwell died in the year 1811, a feme covert.
    
    This suit is brought by her representatives, and the surviving children of Jane Hay Barnwell, who allege that they were entirely ignorant of their uncle’s will, and only discovered by accident recently that a legacy was thereby bequeathed to them.
    The bill is for an account of the administration of the estate of William Hazzard Wigg, and to compel payment of the aforesaid legacy from the assets.
    The executor denies by his answer ever having had notice of this claim ; on the contrary says, that Ahortly after assuming the execution of the will of William Hutson Wigg, he advertised according to law, for all the creditors of the estate of his testator to present their demands; and after having applied the proceeds of the estate to the payment of the debts, in about April, 1830, *delivered possession to William Hazzard Wigg, and relinquished all control over the property. <- That so long a period has elapsed since the death of the testator of his testator, William Hazzard Wigg, and so entirely has his estate been merged in the estate of William Hutson Wigg, that he had never seen or read the will of William Hazzard Wigg until the bringing of this suit: that if the plaintiffs have any cause of complaint against him, as executor of William Hutson Wigg, the same did accrue above four years before the commencement of this suit, and therefore, being a demand within the true reason of the Act of Assembly made for the limitation of actions and avoiding suits, should have been pursued, if at all, within that time. That from the copies of certain papers in his testator’s handwriting, and other memoranda found in his possession, and which are brought into Court, as exhibits, he believes firmly, that the legacy was paid to the father of the plaintiff, who was then, at the time of his death, possessed of a large estate, real and personal, which was after-wards distributed among his children: that the lapse of time, together with the presumption of payment from the above facts, ought to bar the plaintiffs, and that from the intimacy which existed for many years between the plaintiffs and his testator, William Hutson Wigg, and from the pecuniary circumstances of the plaintiffs, a demand for the payment of the legacy would long since have been made, had not the plaintiffs been convinced that the same was satisfied; and that their laches ought to preclude them from all claim to the aid of the Court.
    The other defendant, William Hutson Wigg, answers to the same effect, and in nearly the same words. The exhibit filed with the bill, as a copy of the will, was admitted to be a correct copy, and the plaintiffs, to be the children of Jane H. Barnwell; their ages were also admitted as above stated, and the bill and orders, in the case of Mrs. Ann .Cuthbert, administratrix of James H. Cuthbert v. William Hutson Wigg, executor, were produced as evidence. It was also admitted for the defendants that the plaintiffs have been for a long time in very necessitous circumstances. The exhibit, filed with the answer, as proved to have been taken out of the family Bible of the Wigg family, is in the following words, viz: — “ Made the following settlement this day with Mr. W. H. Wigg. He receipts all claims against me in favor of his father’s estate; *2811 a^so on an or<^er given him by D. Smith on me. *1 gave him a •J final discharge on a legacy left my children in his father’s will, which I acknowledge for them to have received this day, 1st December, 1199.”
    (Signed) John B. Barnwell,
    William H. Wigg.
    Witnessed by Benjamin Wood.
    The Chancellor decided against the claim of the plaintiffs, and ordered the bill to be dismissed, but without costs.
    From this decree the plaintiffs appeal upon the following grounds: — .
    1. Because there is sufficient in the evidence, answers, and language of the will of the testator, William H. Wigg, to repel the presumption of payment to the plaintiff, and the payment to the father of the plaintiffs cannot be sustained on any principle of law or equity.
    
      Treville, for the appellants,
    contended that presumption of payment’ arising from lapse of time, may be repelled, there being a distinction between such presumption and the statute of limitations. — 6 Barn, and Ores. 603. The one is an absolute and unqualified legal bar, the other a legal presumption from a fact. — Blanch, on Lim. 19. The ignorance of the legatees of the legacy to them, repels the presumption of payment. —1 Fonb. 181; Orel u. Smith, Sel. Cha. Ca. 11. The executor is en-' trusted with the execution of the will; it was his duty to give notice to the legatees He is not bound to prove the will. — Toll. 4á-5. And if this presumption is to exist in all cases, he might conceal the will when he is the residuary legatee, (as is the ease here,) and thus acquire gain to himself by defeating every other legacy. In no case will presumption of the payment of a legacy arise under twenty years. — 2 Yes. Jr. 511. It cannot arise until the legatees are of full age, and entitled to receive; and the minority of the plaintiffs prevent it from arising against them, the youngest not having attained full age twenty years before the filing of the bill. If, however, such presumption does arise, the circumstances, he insisted, repelled it, to wit: the minority of the plaintiffs ; their ignorance of the legacy; the admission of both the defendants that they have not paid it; the fact that Cuthbert’s legacy was not paid till suit brought in 1822; and, above all, the showing of "the defendants that payment was made to the father of the plaintiffs, who was not ^authorized to r^oqo receive ; and the inference is irresistible that the executor did not, L before or after that time, pay the legatees.
    
      Bailey, contra.
    In Moore v. Poreher (Charleston MS. eases) it was held, that when an act is done purporting to be in discharge of the trust, the statute of limitations begin to run. The payment to the plaintiffs’ father, whether authorized or not, was so intended, and from that time the statute runs. In any event, lapse of time must be a bar upon the presumption of payment. Thirty-five years have elapsed since the plaintiffs were entitled to demand payment, and since it was made to their father. After such lapse of time, the Court will presume that the father had authority to receive, as guardian or otherwise — everything will be presumed in favor of the defendants ; and when there are other circumstances, less time than twenty years will create such presumption. He cited 1 Black. Com. 461, 462; 2 Atk. 311; Toller. 313; 1 Bail. 59; Hop. on Leg. 609; 2 Yes. Jr. 11.
   Johnson, J.

It is conceded that the statute of limitations will not bar a legacy, and such clearly is the general rule. But it appears from the evidence that the legacy claimed by the plaintiffs under the will of their grandfather, William H. Wigg, was paid by his executor to their father, John B. Barnwell, as long ago as 1199, and it is insisted that this was professedly intended as a payment of the legacy, and an execution of the trust imposed by law, and that therefore the statute would begin to run from that time. The eases of Starke & Starke, published in the Carolina Law Journal, p. 510, and Moore v. The Administrator of Poreher, decided at this place, I think at February Term, 1830, are relied on in support of this position. The principle is certainly a correct one, that when an executor or other person, acting in a fiduciary character, does an act importing a termination of the confidence or trust, as a final settlement and account with the legatee or cestui que trust, he will be protected by the statute against a subsequent account, unless he has been guilty of fraud, and even then the statute will run from the discovery of the fraud. But this case does not fall within that rule. The trust reposed in the executor was that he would pay the legacy to the plaintiffs, or, being minors, to some one who might be duly authorized to receive. In law, the father was not, as a general rule, entitled to receive it, and the payment to him can no more be regarded as a fulfilment and *9331 termination of the trust, than if he had paid it to a stranger. J On the contrary it was in direct violation of it. The rule supposes that the legatee or cestui que trust has at least notice that the executor or trustee regards himself as having been discharged of the trust, and maintains that they are bound to insist on their rights within the period limited by the statute, but it cannot be supposed that they would be bound by an account with, or notice to a stranger.

Ño case has been cited at the bar to show that the payment of a legacy will be presumed after a lapse of twenty years, nor does my memory supply me with any particular case in which it has been ruled; yet the impression on my mind that the precise point has been ruled is so strong, that I can hardly be mistaken, and I think that upon referring to the unreported cases, añore than one of the sort will be found. However that may be, the universal tendency of our own decisions has been to cut down the time necessary to the legal presumption of facts from that established in the English Courts. The difference in the time necessary to bar an ejectment in England and in this State, as well as personal actions, laid the foundation for this diversity of rule, and has been made the foundation of a new rule. On this principle it was held in M’Elwee v. Hill, 2 Cons. Rep. 130, that a possession of twenty years was sufficient to authorize the presumption of a grant to land, thirty years being required according to the English rule; and still more strikingly analogous is the case of Wright v. Wright, 2 M’C. Ch. Rep. 197, where upon a bill filed against an executor for an account, it appeared that sixteen years before the executor had rendered an ex parte account to the ordinary, the accounts appearing regular, it was held that this was a protectection against a further accounting. There is perhaps no case in which such a protection is more necessary than in the cases of executors and administrators. Their duty is not limited to a particular transaction, which, from its magnitude and importance, would point out the propriety of preserving the evidence of it, but of those various, minute, and complicated details, each being of itself comparatively unimportant, and therefore the more likely to be neglected. Twenty years gives abundant time to settle the affairs of the most deranged and complicated estate, and the restless and migratory habits of our people, by which means proof per testes is every day rendered more difficult of attainment, is, I think, *93-4.1 abundant reason for ^cutting down the time to as short a time as -* may be consistent with sound policy. I lake it therefore that twenty years is per se sufficient to authorize the presumption of the payment of a legacy. Starkie, in his Treatise on Evidence, p. 1235-6, says, that this presumption is founded on an artificial rule, by which we arrive at a conclusion without the process of reasoning, and supplies the place of proof. There is also a natural presumption arising from lapse of time independently of the -artificial rule, and although it does not necessarily lead to a conclusion, yet in weighing other circumstances, it enters largely into the account. “ It is hard to prove old things, and therefore less proof will be required.” Our confidence in history, and even Revelation, is in some degree built on this foundation.

About thirty-five years had elapsed between the death 'of the testator and the filing of the bill; and although the presumption of payment, of the legacy to the plaintiffs during their minority, would not arise on account of their incompetency to receive, yet it does not follow that there was not some one duly authorized to receive it for them, and it may be well conceded that this length of time would greatly increase the difficulty of furnishing strict proof. More than twenty years had elapsed between the period at which some of the plaintiffs attained full age, and the filing of the bill, and with respect to them the legal presumption must operate. The legacy, although of a gross sum, was equally distributable amongst them, each was entitled to receive his own dividend on his attaining his majority, and the non-payment of one would not authorize the presumption that the other was not paid. Cuthbert Barnwell, the youngest of the plaintiffs, attained full age about nineteen years before the filing of the bill, and although in his case the artificial rule will not operate, yet considering the great length of time since the death of the testator, his neglect to prosecute his claim on his attaining full age, and taking it in connection with the circumstances summed up by the Chancellor, well warrants the conclusion at which he has arrived. More than the third of a century had elapsed, all the other concerns of the estate of the testator had been finally settled, the executor was dead, and his estate fully administered and disposed of accordingly," and plenary proof was not to be expected. The payment of the legacy to the plaintiffs’ father by the executor, in IT99, is relied on as repelling the presumption of payment to the plaintiffs: but if there is anything* in it, it leads to a directly opposite conclusion. Men do not ordinarily L d0 and voluntaiily incur the responsibility of paying money on the one hand, or receiving it on the other, without authority; and in this case we have but to call in the aid of the legal presumption, to arrive at the conclusion that the father was legally authorized to receive the legacy. Again, let it be conceded that the payment was without the authority of law: — It was then a trust reposed by the executor in the father, to administer it for the benefit of the plaintiffs. Who was so much interested or so likely to employ it in the way best calculated to promote their interest ? It is a slander on parents to suppose that they are indifferent to, or careless of, the interest of their children. Some are, but they are exceptions to the general rule. Is there not, then, independent of a legal presumption, much reason to believe that the father has discharged this trust faithfully, and that if he were now living, he would be able to show it satisfactorily ? I have not adverted to the fact stated in the Circuit Court decree, that the plaintiffs have derived a considerable estate from their father, because I understand that it was made on a concession by the counsel on the trial below which he has since ascertained was not warranted by the fact. If that was so, the plaintiffs would be unquestionably liable to account to the defendant for the legacy received by their father, upon precisely the same principle that they seek to charge him; but from the view before taken that matter has become unimportant.

Motion dismissed, and the decree of the Circuit Court is affirmed.

O’Neall, J., and Harper, J., concurred.  