Arden v. Arden

1 Johns. Ch. 313 | New York Court of Chancery | 1814

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, ^(a)

(a) 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.