The bill (which was filed January 10th, 1879) is filed to recover part of a residuary bequest given to the Complainant by the will of Noah Clark, deceased, of whi.ch the defendant was the executor. The will was proved January 23d, 1852. The defendant settled his account in the orphans court, January 11th, 1859, and by it there appeared to be in his bands the sum of $7,729.25, as the residuum of the estate. Thereupon a decree of distribution was made. The one-third ($2,576.23-^) of the residuum, as shown by the account, was accepted by the complainant as the true amount of her share. ¡Some part of it has been paid by the defendant to her, but when it was paid does not appear.
The question presented on the demurrer is, whether the statute of limitations is a bar to a suit in equity for the recovery of a legacy рayable out of the personal estate only. It appears to me that, in the light of the adjudications on this subject,'the question is hardly an open one in this state.
In Peacock v. Newbold’s Ex’r, 3 Gr. Ch. 61 (1837), wherе a bill for the recovery of a legacy was filed thirty-one years-after the death of the testator, twenty-four years after the settlement of the estate and seventeen years aftеr the death of the executor, no protection under the statute was claimed, but the presumption of payment from lapse of time was relied upon as a defence.
In Smith v. Moore, 3 Gr. Ch. 485 (1845), affirmed 1 Hal. Ch. 649 (1847), a suit for а legacy was maintained apparently (from the report of the case) more than ten years after the settlement of the estate.
It is difficult to suggest an applicаtion of the statute more repugnant to conscience than that which would make it available to an executor or administrator to rob the legatees of the estate merely because of their delay for six years in prosecuting him. It is laid down as a rule, that those trusts which are the mere creatures of a court of equity, and not within the cognizance of a court of law, are not within the statute of limitations. But it is held in New York (Kane v. Bloodgood, before referred to; Souzer v. De Meyer,
Equity had jurisdiction over legacies before the courts of law assumed it; and, in 1677, where the statute of limitations was pleaded in equity in bar to a suit for a legacy, it was held that the suit Was not barred thereby, and that no suit for a legacy ever had been. Anon., 2 Frcem. 20 ; Ward on Leg. 368.
The fact that, by statute, legacies are made recoverable in the courts of law, will not deprive this court of its jurisdiction, nor bind it by limitations which may trammel those courts. Frey v. Demarest, 1 C. E. Gr. 236.
The grounds of jurisdiction in equity, to compel payment of legacies, are said by Judge Story to be various, and he lays it down as a universal ground for the jurisdiction, that the executor is treated as a trustee for the benefit of the legatees; and therefore, as a matter of trust, legacies are within the cognizance of courts of equity, whether the executor has assented thereto or not. Story’s Fq. Jur. § 593. See, also, Willard’s Fq. Jur. 498 ; Wind v. Jekyll, 1
And the remedy in equity continues in its full vigor and extent, and, in the absence of statutory provision expressly or by necessary implication applicable to it, unimpaired and unaffected by any limitations to which the new remedy at law, as such, may be subject. Equity may adopt such limitations if it deem it expediеnt, but proprio vigore as limitations in terms applicable to actions at law alone, they do not attach to or reach the remedy in equity. That the remedy at law of the cestui que trust against his trustee is barred by statute in the case of a subsisting trust, is an additional reason, if any were necessary, for extending to the former the helping hand of this court to protect him against so unconscionable a defence. Equity will interpose to prevent the bar of the statute, positive as it is, where conscience requires it. How can it itself, in the absence of compulsion, apply the statute where consсience forbids ? It may punish the legatee for his laches, if there be reason in conscience for so doing. It will raise the presumption of
Says Mr. Angelí: “The plea of the statute of limitations to an ordinary action of a legacy, has never beеn known. It has long been a settled principle that the statute does not apply in such a case; and it has been ever so understood in England, both in the common law and ecclesiasticаl courts. •Chancery has refused to adopt the rule by analogy to the statute, because an executor stands in the relation of a trustee, and whilst the trust subsists, the statute has not been permitted tо run.” Angell on Lim. (5th ed.) 87.
In this case, the will, after certain legacies and devises, directs that the remainder of the testator’s obligations, and his house and lands, be converted, with his movables, into cash, and divided among his “heirs,” as follows: One-third to be invested, and the interest paid' to two persons named, for life, the principal and any uncollected interest to go to their children, if any they should leave; one-third to go to the complainant, and the rest to the executor for his services in settling the estate. A trust was thus created which this court will enforce unimpeded and unembarrassed by the •existence of the statute of limitations.
The demurrer will be overruled, with costs.