The error assigned challenged the rendition of the decree denying relief. The assignment of errors will be considered in the order presented by respective counsel.
The bill was by an administrator to remove the administration of an estate to the equity division of the circuit court, and for accounting and collection of a legacy, with interest, from properties of the estate conveyed by the executor to his wife. The bill was filed July 16, 1924. The demurrer contains grounds that the bill shows on its face that it is barred by the statute of limitations.
Certain facts are undisputed. In the will of Mrs. Weaver, complainant's intestate was left a legacy of $2,000, by will probated in this state February, 1908, when L. A. Weaver was appointed executor, and that he made no formal settlement of his administration, that in 1917 he conveyed lands devised to him by his wife, and that no consideration was paid therefor. It is further admitted that Laura A. Patterson, at the time of her death, in 1915, was a resident of Tennessee; owned property in this state, including the legacy; that complainant, J. C. Patterson, was appointed administrator of her estate in Lauderdale county, Ala.; that in 1915 Weaver paid $150 to J. H. Patterson, the husband of Laura A. Patterson; that under the laws of Tennessee, at the time of the death of said Laura A. Patterson, "all the property of the wife passed to the surviving husband, subject, however, to debts"; and that said husband survived her. It is further shown that Weaver qualified as executor of the estate of Mrs. Sarah J. Weaver; took charge of her personalty; rented the land, and intermingled the estate's funds with his own; made no settlement to court; conveyed realty to his wife in 1917, yet continued in visible possession thereof, treating same as his own; that there were debts of the estate of Sarah J. Weaver, but no claims were presented as required by law; that the legacy to Laura A. Patterson has not been paid in full.
The pertinent question is whether the action is barred by the statute of limitations, or whether the rule of repose obtains. In *Page 688 Rhodes Ex'r v. Turner, 21 Ala. 210, it was declared that at common law the statute of limitations did not apply to such actions, but that the period of prescription or the presumption after 20 years is the bar to such action. 1 A.L.R. 785, 816, 828.
The doctrine is broader than mere statute of limitations, though on analogous principles. Veitch v. Woodward Iron Co.,200 Ala. 358, 76 So. 124; Kidd v. Browne, 200 Ala. 299, 303,76 So. 65.
The presumption of payment from the lapse of time is applicable to legacies and distributive shares. Rhodes v. Turner, supra; Barnett v. Tarrence, 23 Ala. 463; Blackwell's Case, 33 Ala. 57, 70 Am. Dec. 556; Austin v. Jordan, 35 Ala. 642; Worley v. High, 40 Ala. 171; McCartney v. Bone, 40 Ala. 533; Ragland v. Morton, 41 Ala. 344, 91 Am. Dec. 516; Harrison v. Heflin, 54 Ala. 553; Greenlees' Case, 62 Ala. 330; Bonner v. Young, 68 Ala. 35; Werborn v. Austin, 82 Ala. 499, 8 So. 280.
In Snodgrass v. Snodgrass, 176 Ala. 276, 280, 281,58 So. 201, Mr. Justice Simpson well said:
"As a matter of public policy, and for the repose of society, it has long been the settled policy of this state, as of others, that antiquated demands will not be considered by the courts, and that, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into. It is settled that, after a period of 20 years, without any payment, settlement, or other recognition of liability, mortgages and liens will be presumed to have been paid, settlements will be presumed to have been made by administrators, trustees, agents, and other persons occupying fiduciary positions. It is necessary for the peace and security of society that there should be an end of litigation, and it is inequitable to allow those who have slept upon their rights for a period of 20 years, after they might have demanded an accounting, and after, as is generally the case, the memory of transactions has faded and parties and witnesses passed away, to demand an accounting. The consensus of opinion in the present day is that such presumption is conclusive, and the period of 20 years, without some distinct act in recognition of the trust, a complete bar; and, as said in an early case, 'the presumption rests not only on the want of diligence in asserting rights, but on the higher ground that it is necessary to suppress frauds, to avoid long dormant claims, which, it has been said, have often more of cruelty than of justice in them, that it conduces to peace of society and the happiness of families, "and relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life that the attainment of truth and justice is next to impossible." ' Harrison et al. v. Heflin, Adm'r, et al., 54 Ala. 552, 563, 564; Greenlees' Adm'r v. Greenlees et al., 62 Ala. 330; Nettles v. Nettles, 67 Ala. 599, 602; Garrett v. Garrett, 69 Ala. 429, 430; Semple v. Glenn, 91 Ala. 245,260, 6 So. 46, 9 So. 265, 24 Am. St. Rep. 929 [894]; Roach v. Cox, 160 Ala. 425, 427, 49 So. 578, 135 Am. St. Rep. 107."
And in South v. Pinion, 207 Ala. 122, 92 So. 420, it is said:
"It is a rule of practice that a demurrer will lie for laches or statutory limitations appearing on the face of the bill. Veitch v. Woodward Iron Co., supra; Scruggs v. Decatur Min. Land Co., 86 Ala. 173, 5 So. 440; Gayle v. Pennington, 185 Ala. 53,64 So. 572; Fowler v. Alabama, etc., Co., 164 Ala. 414,51 So. 393; Greenlees v. Greenlees, 62 Ala. 330. The doctrine of repose, the basis of the rule of laches and of prescriptions, is applied or denied on the natural justice of the circumstances of each case that may or may not affect the right of procedure in equity."
This rule has been uniformly followed by this court. Randolph v. Hubbert, 190 Ala. 610, 67 So. 416; Kidd v. Browne, 200 Ala. 299,76 So. 65; Veitch v. Woodward Iron Co., 200 Ala. 358,76 So. 124; Scott v. Scott, 202 Ala. 244, 80 So. 82; Galloway Coal Co. v. Warrior Black Creek C. Co., 204 Ala. 107, 85 So. 440; Heflin v. Heflin, 208 Ala. 69, 74, 93 So. 719; Spencer v. Hurd,201 Ala. 269, 77 So. 683, 1 A.L.R. 761; Graham v. Graham,202 Ala. 56, 79 So. 450.
The doctrine is such presumption can only be used as a shield and not for affirmative relief. Rankin v. Dean, 157 Ala. 490,47 So. 1015; Heflin v. Heflin, 208 Ala. 69, 93 So. 719. This question was not presented in Spencer v. Hurd, 201 Ala. 269,77 So. 683, 1 A.L.R. 761.
The presumption is raised after the lapse of twenty years from when the debt "is due or demandable." Braun v. Pettyjohn,176 Ala. 593, 58 So. 907; Birmingham Realty Co. v. City of Birmingham, 205 Ala. 280, 87 So. 842; Diemer v. Sechrist, 1 Pen. W. (Pa.) 419; Belfer v. Ludlow, 143 A.D. 147,127 N.Y. S. 623; Id., 69 Misc. Rep. 486, 126 N.Y. S. 130. Special circumstances have arisen as settlement of a guardianship, claims against executors and administrators, and such periods are computed, not from the grant of letters or of administration, but from the date when settlement could and should have been made. Garrett v. Garrett, 69 Ala. 429; Greenlees' Case, 62 Ala. 330; McCartney v. Bone, 40 Ala. 533; Rhodes v. Turner, 21 Ala. 210; Birmingham Realty Co. v. City of Birmingham, 205 Ala. 280, 87 So. 842. See authorities collected in 1 A.L.R., pages 815 et seq.
In Veitch v. Woodward Iron Co., 200 Ala. 358, 363,76 So. 124, 129, it is declared:
"It is apparent that the doctrine of repose, the basis of the rule of laches and of prescription, is grounded on the natural justice of the circumstances of each case that may or may not affect a right of procedure in equity. It is not primarily a question of possession, but one of acquiescence in the assertion of adverse right, and unreasonable delay on the part of the real owner in asserting his right, to the prejudice of the adverse party. Haney v. Legg, 129 Ala. 619, 30 So. 34, 87 Am. St. Rep. 81; Butt v. McAlpine, supra. Acquiescence involves knowledge of the facts which entitle to relief, and manifests a want of diligence, which will not be allowed to prejudice adversary interests. *Page 689 Union Cemetery Co. v. Jackson, 188 Ala. 599, 65 So. 986; James v. James, 55 Ala. 525. This acquiescence on knowledge after lapse of time will be presumed where the equity of the case demands."
And in South v. Pinion, 207 Ala. 122, 92 So. 420, it is said:
"Acquiescence or knowledge, after lapse of time, will be presumed, where the equity of such case demands; yet it follows that acquiescence involves knowledge of the facts which entitled to relief — manifests a want of diligence which will not be allowed to the prejudice of adverse interests. First Nat. Bank v. McIntosh, supra; James v. James, 55 Ala. 525; Union Co. v. Jackson, supra."
See, also, Heflin v. Heflin, 208 Ala. 69, 74, 93 So. 719.
It follows from the foregoing authorities that the bill was not filed after the intervening of the bar of statute or rule of repose.
Had the complainant, as administrator of Laura A. Patterson, the right to maintain the suit? As stated, Laura A. Patterson, the beneficiary of Mrs. Weaver's will, was a resident and citizen of Tennessee at her death, and under the laws of that state such personal properties, and the legacy was such, descended to the husband, J. H. Patterson. It follows that John C. Patterson, as administrator of Laura A. Patterson had no interest in the bequest of Mrs. Weaver to Mrs. Patterson. This concludes the right of the appellant to proceed in this suit as such personal representative. This phase of the case is made out by the testimony of John C. Patterson. Mr. Sims testified of the law of Tennessee as follows:
"I am familiar with the laws and statutes of the state of Tennessee. I know the law of descent and distribution. Under the laws of the state of Tennessee, upon the death of a married woman who leaves surviving her a husband and children, all of her personal property descends under the law to the husband. This has been the law for more than 25 years past."
This statement of the effect of the statutes of descent and distribution was corroborated by John C. Patterson, and under his declaration of the residence of his parents at the time of his mother's death. If the named heirs at law of Laura A. Patterson have an interest in the legacy in question, it would be by and through their interest in the estate of the father if he dies or died intestate.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.
On Rehearing.