sons.38 We believe that no such practice prevails, at the present day, in any considerable number of the states. 21. The only cases of the interference of courts of equity in the settlement of estates which it will be important to advert to here, are the following. (1). Where there are conflicting claims against the executor, growing out of different constructions of the will, and which it is necessary to settle for the security of the executor before he acts in the matter, the rights of the several claimants may be determined by a bill, in the nature of a bill of interpleader, brought by any party in interest. This we have sufficiently considered in a former part of this work.39 (2). Bills in equity seem to be the only remedy against an executor for neglecting or refusing to pay a general legacy. It was at an early day held, that an action of assumpsit will lie in such cases.40 But it was finally decided, upon great consideration, that no action at law will lie to recover a legacy, unless there is some special contract to pay, upon some new and independent consideration, as forbearance to sue,12 or where there has been an adjustment between the legatee and the executor, and the latter is agreed to be released from his fiduciary responsibility, and an agreement, as upon an account stated, that he shall hold the money for the legatee in his personal capacity,43 in which cases it has been held an action at law will lie. And the same rule which obtains in regard to legacies has been extended to a distributative share in an estate.44 But the same rule does not apply to the recovery of a specific Seymour v. Seymour, 4 Johns. Ch. 409; Van Mater v. Sickler, 1 Stockton, 483; Clarke v. Johnston, 2 id. 287. * Ante, pt. 1, 36. 40 Atkins v. Hill, 1 Cowp. 284; Hawkes v. Saunders, 1 Cowp. 289. 41 Deeks v. Strutt, 5 T. R. 690; Doe v. Guy, 3 East, 120. 12 Davis v. Wright, 1 Ventr. 120; Smith v. Johns, Cro. Jac. 257. 43 Roper v. Holland, 3 Ad. & Ellis, 99; Bond v. Nurse, 10 Q. B. 244. "Jones v. Tanner, 7 B. & C. 542. legacy, since a complete title at law will vest in the legatee, upon the assent of the executor, and the legatee may maintain an action of trover, or any proper action for its recovery, after the title is thus perfected.45 (3.) Legatees or creditors, or others interested in the amount of the assets of the estate being found sufficient to meet their claims, may bring a bill in equity on behalf of themselves and all others who may elect to come in under the decree, on the ground that the executors or administrators, and certain others, whether creditors or strangers, are conspiring to defeat the claims of the plaintiffs.46 Of this nature are creditors' bills,47 and bills for the marshalling of assets,48 of which we shall speak more at length hereafter. But, generally speaking, there is no occasion, for any of these purposes, to resort to a court of equity, unless there are counter-interests and counter-claims, and an apprehended connivance between the personal representative and such counter-claimants, for the purpose of bringing about an inequitable distribution of the assets. For in all ordinary cases, and especially where all parties are witnesses, and compellable to make full disclosure, the powers of the court of probate are ample for the adjustment of all such questions. (4.) There are some cases, where the assets are complicated by partnership relations, that a claimant against the estate may maintain a bill for an account against the executor and the surviving partner, without alleging collusion between them; and especially may this be done by the residuary legatee.49 Williams v. Lee, 3 Atk. 223; Doe v. Guy, 3 East, 120. 48 319. 1 Story, Eq. Jur. 547. 1 Story, Eq. Jur. 544 et seq.; Morse v. Slason, 13 Vt. 296; s. c. 16 id. Bowsher v. Watkins, 1 Russ. & My. 277; Gedge v. Traill, 1 Russ. & My. 281, in note. If the executor decease after the decree, and before it is carried into effect, the suit may be revived against the administrator de bonis non, or any one into whose hands the effects come. Adair v. Shaw, 1 Sch. & Lef. 243, 262. (5.) Writs of ne exeat regno, and other special process peculiar to courts of equity, may be issued against executors and administrators, upon laying the proper foundation, and under the same restrictions and limitations as in other cases.50 But such a writ will not be allowed against the wife alone, being executrix or administratrix.51 22. It is a familiar rule in equity law that the statute of limitations will operate to bar all legal claims, in a court of equity as well as in a court of law.52 But trusts being peculiarly of equitable cognizance, are not within the terms, or the equitable construction, of the statute of limitations.53 But the party will be allowed to allege special facts in aid of the presumption, from lapse of time, (which alone is held insufficient upon which to presume the release or extinguishment of a trust,) with a view to induce the court to presume against the continued liability of the trustee.54 23. It has accordingly been held that the statute of limitations is no bar to a suit in equity for the recovery of a legacy in those states where there is no remedy at law.55 But where the laws of a state allow an action at law for the recovery of a legacy, as well as by application to the courts of equity, the statutory bar will operate in both tribunals, unless the legacy is made a charge upon real estate.56 And lapse of time and attending circumstances, as the distribution of the assets, without any claim for the payment of the legacy being made, has always been held ground for presuming the payment of a legacy.57 50 2 Wms. Exrs. 1834, 1835. 51 Pannell v. Tayler, Turn. & Russ. 96. 62 Hovenden v. Annesley, 2 Sch. & Lef. 607, 630, 631. 53 Wedderburn v. Wedderburn, 2 Keen, 722. 64 Dickenson v. Lord Holland, 2 Beav. 310. 55 Anon. 2 Freem. 22, pl. 20; Parker v. Ash, 1 Vernon. 256. 50 Souzer v. DeMeyer, 2 Paige, 574, 577, by Walworth, Ch. Higgins v. Crawfurd, 2 Ves. Jr. 571, 572, by Lord Loughborough, Chancellor. See also Pickering v. Lord Stamford, id. 581; Jones v. Turberville, id. 24. There are many cases where the courts of equity in England have interposed to appoint receivers to take charge of the estate, when there was any good reason for apprehending that it was being wasted by the executor or administrator, or by those in whose charge it had been left in their absence from the country. But there is no occasion to discuss any such question here, since the courts of probate have ample power to grant relief in all such cases, and the remedy will be far more effective, as well as more expeditious there, by removing the obnoxious party and appointing a suitable one in his place, than it could possibly be in a court of equity, through the cumbrous machinery of appointing receivers. So that bills for the administration of the assets of deceased persons in the Court of Chancery, through the agency of their officers, which are, or were, of every-day occurrence in England, while the jurisdiction of the ecclesiastical courts continued over probate matters, almost never occur in the American states, unless under a suggestion of fraudulent connivance or combination, or where the power of the courts of probate are inadequate to effect the desired equitable results.58 25. Where there is a controversy between different claimants in regard to the payment of a legacy, and the matter is in litigation, the executor may pay the money into court, and be allowed to retain out of the estate the costs of such payment into court, those of paying it out again being borne by the legatee.58 26. In some cases where executors have become indebted to the estate in the course of administration, a court of equity will direct that a legacy due them be applied towards such indebtedness.59 11. Payment will be presumed, under circumstances, after the lapse of twenty years. Andrews v. Sparhawk, 13 Pick. 393. "In re Cawthorne, 12 Beav. 56. "Skinner v. Sweet, 3 Madd. 244. CHAPTER XI. THE LIABILITY OF THE EXECUTOR OR ADMINISTRATOR PERSONALLY, BY REASON OF HIS OWN ACTS. 1. The rule formerly was, that the representative became personally liable upon all contracts of his own, even in his official capacity. 2. It is now settled that a promise, as executor, if within his authority as such, will not create any personal responsibility. 3. An account stated of matters between the testator and the creditor, by the executor, will create no personal responsibility. 4. But promises for money lent, or had and received by the representative, as such, bind him personally. 5. So on counts for use and occupation, for goods sold and delivered, or labor and materials furnished to or by the personal representative, in that capacity, he is personally liable, all this being beyond his authority as such. 6. Promise for interest due on contract of deceased does not bind representative personally. 7. How far the possession of assets sufficient consideration for new promise by representative in personal capacity. It would seem not enough. 8. How the representative may make himself personally liable. (1.) Must be new contract upon new consideration. Forbearance to sue held sufficient. Legacy. Credit for additional purchase sufficient. So also the surrender of title-deeds by attorney. Justice Williams holds possession of assets sufficient consideration for new promise. (2.) The promise of the executor or administrator must be in writing. But in America consideration need not appear in the writing. (n. 21.) Discussion of some of the grounds of personal responsibility for debts of deceased persons. 9. If representative undertake to perform an award, he is bound personally. 10. But if the award be only that the estate is indebted, and no finding that representative shall pay, he is not so bound. 11 and n. 24. How far representative bound by contracts executed under power by attorney in fact. § 41. 1. It seems to have been supposed, until a comparatively late period, that whenever the personal representative was |