into an admission of the adverse claim, is incapable of being received as evidence of a relinquishment. To have that effect the forbearance must be associated [*]with and apparently accounted for by circumstances which lead distinctly to the supposition of a release or waiver. It has even been decided, that where an executor or administrator claims, though on mistaken grounds, to be entitled to an undistributed part of the deceased's estate, a delay by the persons really entitled for a space of twenty years or more, will not conclude their right(a).

That cases however may exist in which great lapse of time, concurring with other circumstances to render a release or abandonment probable, will conclude the right of the parties interested, seems deducible from the decision in Huet v. Fletcher(b). There the plaintiff's father dying intestate in 1699, his wife (the plaintiff's mother) possessed herself of all the personal estate. After an acquiescence of forty years, and the acceptance meanwhile of a legacy under his mother's will, the son brought a bill against her executor for an account of his father's personal estate. But Lord Hardwicke said,-" This bill is one of that sort which deserves the utmost discouragement. It is to oblige an executor to account for a personal estate which through the great length of time he is utterly incapable of doing; and besides this, the personal estate of a third person, which did not belong to his testatrix; where the plaintiff himself has accepted a legacy under the will, the dispositions of which he now seeks in part to set aside; and after he has acquiesced for

(a) Stackpoole v. Stackpoole, 4 (b) 1 Atk. 467.

a very considerable time.-The bill must be dismissed with costs."

[*]The difficulty of rendering an account formed, as it should seem, the principal ground for this determination. But the fact of the plaintiff's having accepted a legacy under his mother's will was also expressly adverted to—a fact which certainly made it highly probable, that the demand had been relinquished ; indeed, connected with the subsequent acquiescence (which his Lordship also noticed) it placed the question beyond all reasonable doubt. It will be observed, however, that the staleness of the demand was not by any means the sole ground for dismissing the plaintiff's bill.

But, although the laches simply of the next of kin cannot protect the personal representatives, yet if, being aware of their right, and able to enforce it, they permit the estate to be distributed, and lie by for a considerable time afterwards, a demand on the executor or administrator to account for the property disposed of will not then be entertained(a). An opposite rule would be contrary as well to reason as to justice. It would be to aid a claimant whose wilful negligence has been the sole cause of the injury complained of, and to allow the misconduct of one party to work the prejudice of another(1).

But, on the other hand, if the next of kin at the time of distribution be ignorant of or misapprehend

(a) See 17 Ves. 165; also 2 Ves. jun. 583.

(1) Rayner v. Pearsall, 3 Johns. Ch. 578. Rowland v. Best, 2 McCord, 317. Hudson et al. v. Hudson's exr., 3 Rand. 117.

their right, an erroneous application of the funds will be set aside, though after a very considerable interval, [*]and the property, if easily traced, and recoverable without producing individual hardship, will be ordered to be returned (a). Whether a mistaken division would be annulled, supposing the consequence to be grossly injurious to the parties who would have to make restitution, has not been expressly determined: but it is probable that it would not; because even in cases where a restitution has been decreed, the decree has extended only to the original corpus, and not to the annual produce or other similar accruing benefit. Nor, as it is conceived, would the executor or administrator in the case supposed be held personally liable. For although an executor or administrator invested merely with the office is as to the undisposed residue a trustee for the next of kin,-this is only sub modo; he is a trustee for them generally as a class, not particularly as individuals, until individually known. And, though it is doubtless incumbent on the personal representative to use all reasonable diligence to discover who the persons beneficially entitled are, yet after a sufficient space of time for that purpose, he is bound to make distribution, and cannot refuse to do so, on the ground of there being possibly some individuals who remain to be discovered(b) (1).

The same principle, which denies to next of kin when guilty of gross laches the right of contesting an erroneous distribution, is also applicable to creditors

(a) Pickering v. Lord Stamford, 4 Bro. C. C. 214; 2 Ves. jun.

272, 581, S. C.

(b) See 2 Ves. jun. 582, et seq.

(1) Vide Clifton v. Exrs. of Haig, 4 Dess. 330-341.

who for an unreasonable time delay to require payment, [*]and allow the executor or administrator to part with the funds entrusted to him. In these cases equity presumes either that the debts have been satisfied, or that the creditors have determined to abandon them, and will therefore prohibit such creditors from calling on the personal representative, legatees, or next of kin, for an account and payment(a) (1).

In Hardwick v. Mynd(b), indeed, legatees were decreed to refund, though eleven years had elapsed since the payment of the legacies, and although the testator having left assets sufficient to discharge both debts and legacies, the creditors might have been satisfied, had they applied in time. But this case, it is conceived, cannot be relied on as furnishing any general rule; the decision must be referred to the particular circumstances. Trustees to sell for the payment of debts, instead of executing the trust, assigned to a son of the testator. For eleven years the creditors received from him interest on their respective demands, and in the mean time agreed with him for an increase in the rate of interest. Now it was evident from hence that the creditors could not be presumed to have released or waived their debts: and that presumption being excluded, the court appears to have thought, that the liability of the legatees to pay necessarily continued. But this conclusion by no means strictly followed. On the contrary, the long

(a) Hercy v. Dinwoody, 4 Bro. C. C. 257; and 2 Ves. jun. 87,

S. C.

(b) 1 Anstr. 109. See p. 112.

(1) Rayner v. Pearsall, 3 Johns. Ch. 578. Rowland v. Best, 2 M'Cord, 317.

acquiescence of the creditors in the disposition of the funds, connected with [*]the fact of their receiving interest from the party possessing the bulk of the estate, and treating with him in reference to the amount of interest, seems rather to create a presumption that they had abandoned all claim to the property paid away in legacies, and had consented to rely on the son alone for their security.

But to whatever weight the case last noticed may be thought entitled as an authority for the proposition, that creditors whose demands cannot be presumed to be satisfied may, notwithstanding their being privy to a distribution of the testator's funds and long subsequent quiescence, follow the property in the hands of next of kin or legatees; it seems to be settled, that if the next of kin or legatees, previously to the creditors making their claim, sell for valuable consideration, the case is too strong against the creditors for equity to interfere in their favour. Legacies and the residuary estate would otherwise be perpetually locked up, and creditors encouraged in their laches (a)(1).

An executor, who takes upon himself to determine the legal effect of doubtful passages in his testator's will, and proceeds to make a corresponding distribution, is answerable, if his opinion be wrong, for any consequent loss. This is the general rule. But, without question, if the parties affected by the mistake are

(a) See Cholmondley v. Orford, same principle acted on, in Elliott cited in Sugden's Treatise on Pur- v. Merriman, 2 Atk. 41.

chases, 7th edit. 720; and the

(1) Cox' heirs v. Strode, 2 Bibb. 273.