Reed, V. C.
In this posture of affairs, the question raised by the pleadings is whether the -mortgage of $2,000 held by Catharine Bradley at the time of her death is a subsisting lien upon the tract, whether the legacy to Julia Magee is a subsisting lien, and if so, to what amount, and whether the other legacies charged upon the lands are subsisting liens, and if so, to what amount.
The rule is entirely settled that where a mortgagor has remained in possession without making any payments of principal or interest, or doing any other acts in recognition of the mortgage, for a period of twenty years, payment of said mortgage is presumed. 1 Jones Mort. § 915. The onus probandi, by reason of the lapse of this period of time, is thrown upon the mortgagee to prove that the instrument is still subsisting unpaid. The presumption does not act like a statutory limitation, but as a rule of evidence as well as a rule of public policy. The degree of proof required to overcome the presumption must necessarily vary with the circumstances which surround each individual case.
In Executors of Wanmaker v. Van Buskirk, Sax. 693, the circumstance that the mortgagor had married the daughter of the mortgagee and had issue; that the mortgagor had died many years before, leaving his wife and children in possession; that they were not in the situation to pay either principal or interest; that to have exacted payment might have brought distress upon them and upon those who depended on this property for support, and so would have been harsh, was deemed sufficient to rebut the presumption of payment.
In Evans v. Huffman et al., 1 Halst. Ch. 354, the chancellor cited with approval the remark of Sir William Grant in Hillary v. Waller, 12 Ves. 252: “ The presumption does not rest on the belief that the payment has actually been made, but is raised because the means of creating belief or disbelief, after such a lapse of time, are so little to be relied on.”
In this case the chancellor seems to have thought that neither the insolvency of the mortgagor nor his absence for a portion of the twenty years would rebut the presumption of payment.
[330]*330In Downes v. Sooy, Jr., 1 Stew. Eq. 55, Chancellor Runyon, after again quoting the remarks of Sir William Grant, says: “ The presumption of payment, in case of a mortgage on -which nothing has been paid for twenty years, and there has been no foreclosure, and the mortgagee has had no possession of the mortgaged premises, arises from the policy of the law.” In that case he reinforces the presumption of payment.
Now, what are the elements of fact in this case to rebut the presumption of payment arising from nearly or quite thirty years’ delay to foreclose? There is no evidence of payment of any part of principal or of'the interest to rebut the presumption. It is true that Ellen Hennesy says that, in 1868, Julia Magee came to- her mother’s and paid her $100 upon the mortgage. In respect to this testimony, Julia Magee says she never knew of the existence of the mortgage until after the death of Eorbes. In addition to this evidence of Julia Magee, and the length of time that has elapsed since the event sworn to, there is the fact that there is nothing to show that Julia was authorized by Eorbes to pay any sum upon principal or interest. Eorbes, and not Julia, was the owner of the land upon which the mortgage was a lien. Besides the payment, if made, was made thirty years ago. It appears, further, that there is no endorsement of any sum of principal or interest upon the bond or mortgage. The only element of fact remaining to be considered is the kinship of the parties. It is in evidence that Catharine Bradley was well to do; therefore, it is argued that it can be inferred that she purchased and held this mortgage for the purpose of assisting Julia Magee, who, as has been already remarked, was permitted by Eorbes to have the benefit of the equity of redemption. This seems to me a very slender foundation to overturn the presumption arising from this long period of time. Eor aught that appears, Forbes was as able to pay the mortgage as his sister was to forego payment. What occurred between them during this thirty years in relation to it, what arrangements were made in regard to its payment, what understanding was entered into in respect to its enforcement, surrender or payment, can now never be known, as the mouths of both Eorbes and [331]*331Catharine are closed by death. For the very reason that, by this lapse of time, all means of proof have been extinguished, as a matter of public policy the presumption of payment should be permitted to remain. In my judgment the mortgage is not a lien.
The next question is whether the liens of the legacies, charged by the will of John Holland and of Haney Holland upon portions of the estate, still exist. In respect to the matter of presumption of payment, these legacies stand upon much the same footing as the mortgage. I take it that the equitable rule is that a suit to recover a legacy will be barred by the same delay as is sufficient to prevent a recovery upon a mortgage.
It is true that there is no special statute of limitations applying to the recovery of legacies, and that the general statute does not reach such suits, because such statutes are not recognized in cases of express trusts, and executors or administrators are regarded as trustees of an express trust (Hedges v. Norris, 5 Stew. Eq. 192); yet, as in the case of mortgages, a court of equity will, in analogy to the statute of limitations, raise a presumption after the lapse of twenty years' that a legacy has been paid. Hayes v. Whitall, 2 Beas. 241.
As to what circumstances will suffice to rebut this presumption, there seems to exist some contrariety of judicial sentiment.
In Jones v. Turberville, 2 Ves. Jr. 11, A., by will, charged all his estate, generally, with the payment of debts to legatees. . A bill was filed by the second husband of a legatee after her death. Forty years had elapsed without demand. The plaintiff proved that another legacy, of ten thousand guineas was not paid, and also offered to read the evidence of some bond creditors that debts due to them had not been paid. The bill also .alleged the existence of certain infancies during the time. The court refused to entertain the suit.
In Camppell v. Graham, 1 Russ. & M. 453, the failure to bring a bill for a legacy for twenty-eight years, although the legatees had left Jamaica,- where the assets were to be administered, previous to testator’s death and never returned there, was held to bar the suit.
[332]*332In Pickering v. Stamford, 2 Ves. Jr. 272, Lord Alvanly, master of the rolls, acknowledged the rule laid down in Jones v. Turberville, and said: “ I should have held that where an executor, twenty years after the death of the testator, sells leasehold estate upon which, legacies have been charged, and no demand has been made during all that time, there was evidence that the charge had been paid.”
On the other hand, in Ravenscroft v. Frisby, 1 Call 16, one Morris died in 1789. He had left his property in a state of extreme embarrassment. It was .improbable that the assets could ever be sufficient for the payment of the whole of his liabilities.
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Reed, V. C.
In this posture of affairs, the question raised by the pleadings is whether the -mortgage of $2,000 held by Catharine Bradley at the time of her death is a subsisting lien upon the tract, whether the legacy to Julia Magee is a subsisting lien, and if so, to what amount, and whether the other legacies charged upon the lands are subsisting liens, and if so, to what amount.
The rule is entirely settled that where a mortgagor has remained in possession without making any payments of principal or interest, or doing any other acts in recognition of the mortgage, for a period of twenty years, payment of said mortgage is presumed. 1 Jones Mort. § 915. The onus probandi, by reason of the lapse of this period of time, is thrown upon the mortgagee to prove that the instrument is still subsisting unpaid. The presumption does not act like a statutory limitation, but as a rule of evidence as well as a rule of public policy. The degree of proof required to overcome the presumption must necessarily vary with the circumstances which surround each individual case.
In Executors of Wanmaker v. Van Buskirk, Sax. 693, the circumstance that the mortgagor had married the daughter of the mortgagee and had issue; that the mortgagor had died many years before, leaving his wife and children in possession; that they were not in the situation to pay either principal or interest; that to have exacted payment might have brought distress upon them and upon those who depended on this property for support, and so would have been harsh, was deemed sufficient to rebut the presumption of payment.
In Evans v. Huffman et al., 1 Halst. Ch. 354, the chancellor cited with approval the remark of Sir William Grant in Hillary v. Waller, 12 Ves. 252: “ The presumption does not rest on the belief that the payment has actually been made, but is raised because the means of creating belief or disbelief, after such a lapse of time, are so little to be relied on.”
In this case the chancellor seems to have thought that neither the insolvency of the mortgagor nor his absence for a portion of the twenty years would rebut the presumption of payment.
[330]*330In Downes v. Sooy, Jr., 1 Stew. Eq. 55, Chancellor Runyon, after again quoting the remarks of Sir William Grant, says: “ The presumption of payment, in case of a mortgage on -which nothing has been paid for twenty years, and there has been no foreclosure, and the mortgagee has had no possession of the mortgaged premises, arises from the policy of the law.” In that case he reinforces the presumption of payment.
Now, what are the elements of fact in this case to rebut the presumption of payment arising from nearly or quite thirty years’ delay to foreclose? There is no evidence of payment of any part of principal or of'the interest to rebut the presumption. It is true that Ellen Hennesy says that, in 1868, Julia Magee came to- her mother’s and paid her $100 upon the mortgage. In respect to this testimony, Julia Magee says she never knew of the existence of the mortgage until after the death of Eorbes. In addition to this evidence of Julia Magee, and the length of time that has elapsed since the event sworn to, there is the fact that there is nothing to show that Julia was authorized by Eorbes to pay any sum upon principal or interest. Eorbes, and not Julia, was the owner of the land upon which the mortgage was a lien. Besides the payment, if made, was made thirty years ago. It appears, further, that there is no endorsement of any sum of principal or interest upon the bond or mortgage. The only element of fact remaining to be considered is the kinship of the parties. It is in evidence that Catharine Bradley was well to do; therefore, it is argued that it can be inferred that she purchased and held this mortgage for the purpose of assisting Julia Magee, who, as has been already remarked, was permitted by Eorbes to have the benefit of the equity of redemption. This seems to me a very slender foundation to overturn the presumption arising from this long period of time. Eor aught that appears, Forbes was as able to pay the mortgage as his sister was to forego payment. What occurred between them during this thirty years in relation to it, what arrangements were made in regard to its payment, what understanding was entered into in respect to its enforcement, surrender or payment, can now never be known, as the mouths of both Eorbes and [331]*331Catharine are closed by death. For the very reason that, by this lapse of time, all means of proof have been extinguished, as a matter of public policy the presumption of payment should be permitted to remain. In my judgment the mortgage is not a lien.
The next question is whether the liens of the legacies, charged by the will of John Holland and of Haney Holland upon portions of the estate, still exist. In respect to the matter of presumption of payment, these legacies stand upon much the same footing as the mortgage. I take it that the equitable rule is that a suit to recover a legacy will be barred by the same delay as is sufficient to prevent a recovery upon a mortgage.
It is true that there is no special statute of limitations applying to the recovery of legacies, and that the general statute does not reach such suits, because such statutes are not recognized in cases of express trusts, and executors or administrators are regarded as trustees of an express trust (Hedges v. Norris, 5 Stew. Eq. 192); yet, as in the case of mortgages, a court of equity will, in analogy to the statute of limitations, raise a presumption after the lapse of twenty years' that a legacy has been paid. Hayes v. Whitall, 2 Beas. 241.
As to what circumstances will suffice to rebut this presumption, there seems to exist some contrariety of judicial sentiment.
In Jones v. Turberville, 2 Ves. Jr. 11, A., by will, charged all his estate, generally, with the payment of debts to legatees. . A bill was filed by the second husband of a legatee after her death. Forty years had elapsed without demand. The plaintiff proved that another legacy, of ten thousand guineas was not paid, and also offered to read the evidence of some bond creditors that debts due to them had not been paid. The bill also .alleged the existence of certain infancies during the time. The court refused to entertain the suit.
In Camppell v. Graham, 1 Russ. & M. 453, the failure to bring a bill for a legacy for twenty-eight years, although the legatees had left Jamaica,- where the assets were to be administered, previous to testator’s death and never returned there, was held to bar the suit.
[332]*332In Pickering v. Stamford, 2 Ves. Jr. 272, Lord Alvanly, master of the rolls, acknowledged the rule laid down in Jones v. Turberville, and said: “ I should have held that where an executor, twenty years after the death of the testator, sells leasehold estate upon which, legacies have been charged, and no demand has been made during all that time, there was evidence that the charge had been paid.”
On the other hand, in Ravenscroft v. Frisby, 1 Call 16, one Morris died in 1789. He had left his property in a state of extreme embarrassment. It was .improbable that the assets could ever be sufficient for the payment of the whole of his liabilities. Of all the property the mortgagees were in possession whose redemption must have preceded the application of the legacies to the purposes of the will.
It was held that, under these circumstances, a presumption of payment of the legacies did not arise from lapse -of over twenty years.
In my judgment, there is evidence which rebuts the presumption of payment of some of these legacies.
Julia Magee swears positively that her legacy was never paid.
John Donnelly swears with equal positiveness that his legacy was not paid.
Thomas Holland is dead, but his wife swears that he never received the benefit of the $600 which was to be raised out of the property under the terms of -his father’s will.
She married Thomas in 1860, before the death of the father of Thomas, and she still survives. It is absolutely incredible that the provisions in the father’s will could have been executed without her knowledge.
In respect to the legacies to Eliza Kavanagh and Diana Bradley, there is no evidence that they were paid or were not paid. To overcome the presumption of payment which thirty years’ delay to make a claim for their payment raises, there is nothing but the conditions which existed during this period. But it seems impossible to say that those conditions were so repugnant to probability of their payment as to overcome the -contrary presumption. Edward says he thinks his legacy was paid. It [333]*333is charged in the bill and undenied in any answer that Margaret Doyle’s was paid.
How, where it is proved that some were paid and some were left unpaid, it is difficult to see how any reliable inference can be drawn as to the páyment of another legacy, concerning which there is absolutely nothing in the testimony except that the same condition of affairs existed in respect to these legatees as existed in regard to both the paid and unpaid legatees.
I am constrained to hold that the legacy to Eliza Kavanagh and the legacy to Diana Bradley are presumed to have been paid.
I will advise a decree that the property be sold; that the mortgage held by Catharine Bradley is paid; that the_legacy given to Edward Holland is paid; that the legacy for $600 given to Thomas ’Holland, with interest, is a first lien upon the proceeds of the sale of the undivided one-half interest in said lands; that the legacy of $3,000 to Julia Magee, and the legacy of $300 to John Donnelly, are liens upon the other half interest in said lands.
As the value of the land seems to be insufficient to pay the legacies to Julia Magee and John Donnelly in full, they must be paid ratably.