Appeal of Bentley's Executors

Mr. Justice Trunket delivered the opinion of the court, February 27th 1882. A debt which has been due and unclaimed, and without recognition, for twenty years, in the absence ¡ of explanatory evidence, is presumed to have been paid. This presumption, prima facie, obliterates the debt, and the onus of proof is upon the creditor, not to establish a new contract as is the case when a debt is barred by the statute of limitations, but to show that payment of the debt has not been made: Reed v. Reed, 46 Pa. St. 239. In that case, within twenty years, the debtor admitted to the creditor and to strangers that he had not paid the debt, and said he would not, and it was held that the presumption of payment was rebutted. .Here the sum of the testimony is that the executor said to a third person that he would not pay' the legacy, because the legatee was rich enough without it. This is far short of the direct admission in Reed v. Reed, and the court below rightly held that it was insufficient to overeóme a presumption of payment ai'ising from lapse of time. When a person in conversation with a stranger respecting the claim of another, says he will not pay it, there is not the same reason for inferring recognition that exists when the creditor requests and the debtor refuses payment. In the latter case, not to deny is to admit. Besides, the debt is claimed. But it does not concern the stranger whether the claim is existing or has been paid ; he has no right to ask payment. The executor lived almost twenty years after the legacy became due and payable. It was not claimed by the legatee, for more than twenty one years after it was due. The debt was unrecognized and unclaimed, for over twenty years, and the time of payment is deemed to have been before the beginning of the period, else payment would not be presumed. Were the debtor living, the reason for invoking the presumption would not be so strong as now, for his representatives are not so likely to know of the actual evidence of payment as he [505] would be. The difficulty in proving a fact, which occurred many years before its existence is questioned, lies at the foundation for its presumption from lapse of time. Then, the mere fact of the debtor’s death ought not to be a sufficient explanation of the creditor’s delay. Immediately, he may make claim against his debtor’s estate. The case differs from one where the debtor was in extreme poverty, or beyond sea. And if the debtor be a trustee ho may avail the rule respecting stale demands, though he could not the statute of limitations: Power v. Hollman, 2 Watts 218. In that case the court, conceding that claims against an insolvent who had assigned his property, in trust for creditors, would not be barred by the statute, ruled that lapse of time would raise a presumption of their payment. We are of opinion that the presumption of payment of the appellee’s claim had arisen, before the presenting of her petition. Decree reversed, and the exceptions to the adjudication by the accountants sustained, costs to be paid by the appellee, Ann E. Daly.