which the presumption operates, he "ought to show that the presumption was untrue, and that, in fact, it had not been paid or satisfied," before permitting a judgment to be recovered, or making payment.

But if he has personal knowledge or ample proof of the indebtedness as still subsisting, and acts upon either, we are unable to see why he should be held personally responsible, and be denied the opportunity of giving his reasons therefor under the old or the recently amended rules of evidence. In all cases he must act in good faith in protecting the trust estate against unjust demands, but not against those that are honest and just. The law does not require of him, in the expressive words of another, in opposition to an argument, that it was the legal duty of the representative to plead the statutory bar, "to make him sin in his grave"; and such is the well-established doctrine in this state, under numerous adjudications of this court.

And again, assuming the testimony incompetent to prove the fact of non-payment, why is it not admissible to refute the charge of culpable indifference and inattention, and show wherefore the indebtedness was not contested, and the good faith of the executor?

"The legatees or next of kin," remarks Gaston, J., "cannot, in conscience, object to payment, whether voluntary or compulsory, made by the representative of the estate of what was justly due therefrom. In equity, as respects legatees or next of kin, the estate consists only of what remains after satisfaction of the creditors": Williams v. Maitland, 1 Ired. Eq. 92.

Suppose the presumption could have been repelled by frequent admissions and acts of the debtor to be proved by an indifferent witness who dies before the administration account is taken, so that any resistance to the action would have been fruitless, must the executor, who pays the amount after judgment, be disallowed the credit because the proof cannot then be had? And shall he not be permitted to show his reasons for making a useless opposition to the recovery? Yet these consequences might follow the adoption of the principle that applies to an action upon the claim itself when in suit, in a controversy growing out of its payment. Unless some difference is recognized, very great hardship might come to the most careful and honest trustee in the discharge of his official duties, and for which the enabling statutes in the code were specially intended, as is apparent from their structure and scope.

The rule would be very stringent which imposed so great responsibility upon a fiduciary agent left unprotected, when his disbursements, made in fidelity to his trusts, are to be disallowed because of inability to produce the proofs upon which the claim could have been established, and when resistance would have entailed needless expense. The executor "is answerable only," says Nash, C. J., in Deberry v. Ivey, 2 Jones Eq. 370, "for that crassa negligentia, or gross neglect, which evidences mala fides." To the same effect are Nelson v. Hall, 5 Id. 32; Mendenhall v. Benbow, 84 N. C. 646; Patterson v. Wadsworth, 89 Id. 407. We therefore sustain the rulings of the judge upon these two exceptions.

The Burgin judgment, in many of its features, is similar to that which has been discussed. In some respects, it has peculiarities of its own. John Carson was himself a surety obligor, and if the pleadings were to be verified by oath, how could he swear that the debt had been paid when he knew it had not been? and why should he be required to set up for his testator a defense he would not set up for himself? It would be evasive to say the debtors relied upon the protection of the statute, when its presumption was known to be untrue. His duty to the estate cannot be such as to require him to do for its exoneration what he could not conscientiously do for his own. Their interests are one and the same, and every motive was against any dereliction of duty in the premises to both.

Besides this, he was not bound to set up an unjust though legal defense, as the condition of his own recovery from the principal debtor, or from a co-surety, his ratable part of what he may have been compelled to pay, by reason of his personal liability. This has been expressly decided when the surety failed to plead the statute of limitations to a demand from which it would have protected him, inasmuch as his right of action commences at the payment: Sherrod v. Woodard, 4 Dev. 360; Jones v. Blanton, 6 Ired. Eq. 115; 51 Am. Dec. 415.

"There was no obligation on the plaintiff, in law or in equity," are the words of Nash, C. J., in the last-cited case, "to plead that statute [protecting the sureties from liability upon guardian bond, after three years, from the ward's becoming of age, and not calling him to an account], or rely upon the protection it gave him "; citing Leigh v. Smith, 3 Ired. Eq. 442; 42 Am. Dec. 182; and Williams v. Maitland, supra. This was said of the plaintiffs' claim for a contribution from a coBurety to the bond.

Why is it more his duty to rely upon a defense not less unconscientious furnished in the statutory presumption?

With the funds in his hands, the appropriation was at once made by the law: Ruffin v. Harrison, reported in 81 N. C. 208, and upon the rehearing, in 86 Id. 190. There was therefore no limitation resulting from the lapse of time afterwards depriving the executor of his right to a credit upon a settlement of the estate.

3. The next exception, pressed with earnestness and force by appellees' counsel in argument, is in allowing a credit for an alleged premium, entering into the judgment rendered upon the bond due to Jacob Harshaw, the plaintiffs' testator, and executed by J. L. Carson, William Carson, and George Carson, on April 20, 1860, and payable upon its face "in United States coin." It was reduced to judgment at fall term, 1869, of McDowell superior court, and the record thereof was produced before the referee Shaw, showing the amount recovered to be $4,326.45, and upon the back of the bond, besides an indorsed payment of $198.33, is an entry, as follows:P'l [intended for principal]. Int. to 2d September, 1869.. Gold premium, 35 per cent....

......

$2,167 64

1,037 14

1,121 67

$4,326 45

This entry, as well as the computation of interest accrued, sufficiently shows that the premium upon gold has been added to the amount due upon the face of the bond, which, it is not denied, measured the difference in value between gold and national currency at the date of the judgment. This method of conversion of the one into the other fund is in accordance with the decision of this court in Robeson v. Brown, 63 N. C. 554, while it is at variance with that of the supreme court of the United States: Bronson v. Rodes, 7 Wall. 229, and Butler v. Horwitz, 7 Id. 258, wherein the currency in the contract is preserved, in kind, in the judgment, and in the execution that follows. The executor, acting upon the rule laid down in this court, is warranted in not resisting the recovery of the sum thus augmented by the premium upon coin, and payable in national currency; nor is there any principle in law or equity known to us, nor any authority referred to by counsel, on which, in consequence of the appreciation of the latter to the level of the former in value, the debt can be reduced, as it could not be increased in case of depreciation.

Besides, the sum adjudged due, in the ruling upon the report of the referee Flemming acquiesced in, and not the subject of exception, is thus conclusively settled in this very action, and cannot come up again, except upon a revisal of that adjudication, upon a proper application to the court.

It is unnecessary to consider the original judgment against the executor, and inquire if the statute of limitations can still be set up, in opposition to the present proceeding, to charge the devised land with the debt; and it is only necessary to say that the ruling in Bevers v. Park, 88 N. C. 456, has been misunderstood, and the mistake explained and corrected in Speer v. James, 94 Id. 417, where the subject-matter of the relations between the personal representative of a deceased debtor and his devisees and heirs at law is fully considered.

The other exceptions, based upon alleged erroneous rulings upon the law, for none others are before us in this appeal, without special and separate reference to each, must be overruled.

There is no error, and the judgment must be affirmed, and it is so ordered.

POWER OF EXECUTOR TO REVIVE DEBT BARRED BY STATUTE OF LIMITATIONS: See note to Briggs v. State, 12 Am. Dec. 659-661.

EXECUTOR OR ADMINISTRATOR IS NOT BOUND TO PLEAD STATUTE OF LIMITATIONS: Baker v. Bush, 25 Ga. 594; 71 Am. Dec. 193, and note; Shreve v. Joyce, 36 N. J. Eq. 44; 13 Am. Rep. 417.

WILLIAMS V. Lewis.

[100 NORTH CAROLINA, 142.]

WILL-CONTINGENT LIMITATIONS-PARTITION.Where testatrix devised land to certain of her children, with a provision .that upon the death of either without heirs the portion of the child so dying should go to the survivor, the time when the contingency is to happen is the death of the respective devisees without an heir, that is, without children then living, and no earlier period, and the estate should then go to the survivor; and where it was also provided that in case of the marriage of either, then there should be a division of the estate, the postponed division shows that it was not the intention of the testatrix to confine the contingency to the period of her own life. WILL-ESTOPPEL BY PARTITION - CONTINGENT LIMITATIONS. — Where land is devised to children of the testatrix to hold equally until certain contingencies, upon the happening of which a division was to be had, and also upon a contingent limitation that upon the death of one without heirs that portion was to go to the survivor, a judgment of partition

does not estop the survivor from claiming his share upon happening of the contingent limitation. The partition separates into parts that which was before held in common as a whole, and no more disturbs the limitations than would have done a devise of the several portions to the respective tenants by the testatrix.

F. A. Woodard and C. M. Cooke, for the respondents.

Jacob Battle, for the appellants.

SMITH, C. J. The controversy in this action arises out of the conflicting interpretations of the will of William Jane Bryant (under which both parties derive their claim of title), who died in August, 1872, shortly after making it.

The testatrix, after giving to her daughter Medora fifty acres, to be taken from the southern portion of her tract of land, to be run off and allotted to her by her executor, which has been done, devises as follows:

"Item 3. I will and devise that my son Robert and my daughter Ellen have two hundred acres of land, laid off in good shape, to include all the houses and improvements, to remain undivided until Robert becomes of age, or until one of them gets married, then to be equally divided between them."

"Item 5. I give and bequeath unto my son John Bryant all the balance of my tract of land, being about 105 acres, to him and his heirs forever"; to which, elsewhere, she adds certain pecuniary bequests.

"Item 9. I will and desire that should my son John die leaving no heir, I will and desire that Ellen and Robert heir his part of my estate; and should Ellen or Robert die leaving no heir, the surviving one to heir the estate of the deceased brother or sister."

The two hundred acres mentioned in the third item of the will were, soon after the death of the testatrix, cut off by the executor, and allotted to Ellen and Robert, who entered into possession, and jointly occupied the same until November, 1876, when Ellen, the feme plaintiff, intermarried with Henry C. Williams, who and herself are the parties to the action; and thereupon, at their instance, and in association with Robert, under proceedings in the superior court, before the clerk, the land was divided, and the moiety of each tenant assigned and set apart to her and him in severalty.

Robert was, at that time, a minor; but he became of age before 1882, in which year he conveyed, by deed, the tract which he held to the defendant, George N. Lewis, in fee. Robert died in 1886, never having married, and without issue.