There is no doubt of the fact in this case, that the appellant paid over the one half of the intestate’s estate to the two daughters of R. McDowell, in 1833, in good faith; supposing that their sister had died many years previous thereto without leaving legitimate issue. The presumption now is that the brother is dead ; as he was beyond sea.when he was last heard of in 1830, without having any known residence abroad; and no intelligence has been obtained respecting him since that time. This presumption is supposed to have been adopted by analogy to certain statutory provisions; particularly the provision of the statutes relative to the presumption of the death of persons upon whose lives estates in lands depend ; where such persons have removed beyond sea, or absented themselves in this state, or elsewhere for seven years together. (1 R. S. 749, § 6. Slat. 19 Charles 2d, ch. 6, § 2.) But as he was heard of within two years previous to the death of S. Brown in 1832, there is no presumption that he was not alive at that time, so as to be entitled to a distributive share of her estate as one of -the next of kin. The only presumption arising from such absence is that he is dead, if he has not been heard of within the seven years mentioned in the statute; not that he died at any particular time within the seven years, or- even on the last day of that term. [Doe ex dem. Knight v. Nepean, 5 Barn. Sp Adol: 86; 2 Mees, tip Weis. 894.) The surrogate was right therefore in not awarding to the respondent the fourth of the distributive *463share to which the brother was entitled if living at the death of the intestate ; without some evidence to establish the fact that he died before that time.
There was nothing upon which to found a legal presumption that the respondent was dead in 1832, or at the time when her distributive share was paid to the sisters in 1833; although her relatives in New-York had not then heard from her in twelve or thirteen years. Even where the person, whose existence is in question, lias remained beyond sea for seven years, if he had a known and fixed residence in a foreign country when he was last heard from, he ought not, in justice, to be presumed dead, without some evidence of inquiries having been made for him at such known place of residence, without success. For the average duration of life of persons under sixty years of age is more than twice seven years. And in the present state of society, in this and other commercial countries, no presumption of the death of an individual does in fact arise from the mere circumstance that he has fixed his domicil abroad, and has not been heard of at the place of his birth, or of his original residence, for more than seven years. And if the law raises a presumption from that circumstance alone, by analogy to the statutory provision before referred to, still it does not apply to the case of this respondent. For she was not beyond sea, nor had she absented herself in this state, or elsewhere, for seven years previous to the death of the intestate; within the intent and meaning of the statute before referred to.
Where the person whose death is. to be presumed, is in fact within the United States, and not technically beyond sea, “ absenting himself in this state or elsewhere” must mean absenting himself from his last place of residence in this state, or in the United States, which was known to his family, or his relatives who would be likely to know whether he was living; and from whom a party in the search of the truth would be likely to make inquiries. The mere fact, therefore, that the party has absented himself from the place of his birth, or from his original domicil, for more than seven years, does not raise a presumption that he is dead. Here the respondent had a mother and two *464sisters, and also a natural son, residing in New-York; all of whom must have been known to the administrator. And they were undoubtedly aware of the fact that she was residing at Never Die‘in the vicinity of Baltimore, about twelve years before. If the administrator had made the proper inquiries, he would also have ascertained that fact. And having done that, he should have caused inquiries to be made at such last known place of her residence ; for the purpose of ascertaining whether she still resided there, or was dead, or had removed to some other place which could be ascertained. Or, if he did not wish to incur the expense of making such inquiries, he should have applied to the surrogate for a final settlement of his account, and the distribution of the fund in his hands to such persons as should come in and establish their claims to the same as the next of kin of the intestate. Or he might have taken security from those to whom he paid the money, to refund her share, in case it should afterwards appear that she was alive at the death of her aunt. The administrator probably acted upon the presumption that she was dead, because the letters written to her some ten or twelve years before remained unanswered. But it was almost as unsafe to rely upon that circumstance alone, as evidence of her death, as it would have been to presume from the name of her last known place of residence that she would live beyond the usual period of human life. The more rational presumption was that she had gone to some other place, and that the letters written to her had not reached her. For if she had died there, she probably would, previous to her death, have informed some of her acquaintances that she had a mother and other relatives living in New-York, and that the fact of her death would have been communicated to them by letter. The administrator, therefore, is not entitled to protection on the ground that he was legally authorized to presume the respondent was dead at the time the succession opened in 1832.
Nor has there been such an assent or acquiescence on her part, since she was aware of the fact of the payment of her distributive share to her sisters, as in itself will constitute an equitable bar to her claim against the administrator. She did *465indeed say to him, as some of the witnesses state, that she was contented to have the money remain as it was. But what she said was founded upon the erroneous impression that the fund was in the hands of her son, for her benefit; which false impression was caused by what was said by one of the sisters at that time. And that the administrator did not rely upon that declaration, as an absolute relinquishment of her claim upon him, is established by the fact that he shortly afterwards attempted to obtain a relinquishment of that claim.
The only remaining questions to be considered are, whether her claim was barred by the statute of limitations; and whether the administrator could avail himself of that defence before the surrogate. As the appellant was not called upon to state his defence, against her claim to a decree for the payment of her distributive share, before the taking of the testimony of the witnesses, it would be wrong to deprive him of that defence, if the evidence showed that it actually existed, upon the technical ground that he had not formally pleaded it as a bar to such claim. It appears in this case that the administrator had received the avails of the property of the intestate, and had actually paid over the half thereof belonging to the children of R McDowell, as early as June, 1833. The right of the respondent to sue the administrator in the court of chancery, if not in a court of common law, for the whole of her distributive share of the estate, therefore, accrued at the expiration of one year after the granting of letters of administration in August, 1832. (2 R. S. 114, § 9.) And her right to institute a suit before the surrogate, for the same purpose, accrued at the same time. (Idem. 116, § 18.) This suit was not commenced until 1844; more than ten years after the right accrued. The statute of limitations does not in terms specify the time within which a creditor, legatee, or distributee, shall institute a suit before the surrogate, against executors or administrators, to obtain payment of his debt or legacy, or his distributive share of the estate of the decedent. But the legislature never could have intended to give to a party the right to institute such a suit before a surrogate, after his remedy was barred by the statute of limitations. *466in all other courts. Such a suit therefore, by analogy to the statute of limitations, should be instituted before the surrogate within the time in which suits of the same character are required to be commenced in the courts of common law, or of equity. If it is a case in which the courts of common law, the court of chancery, and the surrogate’s court, have concurrent jurisdiction, the suit before the surrogate should be brought within the time limited by the revised statutes for commencing the suit at law, and in chancery. (2 R. S. 301, § 49.) But if it is a case where the court of chancery and the surrogate’s court alone have concurrent jurisdiction, then the suit before the surrogate should be instituted within the time prescribed for the commencement of suits of the same character in equity; in cases where the subject matter of the suit is not cognizable by the courts of common law. (1 R. S. 302, §§ 51, 52, 53.)
The conclusion at which I have arrived in this case, therefore, is, that the right of the respondent to recover from the administrator any and every part of her distributive share of the estate of S. Brown, in any of the courts of this state, was barred :b,y ¡the statute of limitations at the time she presented her petition ,to the surrogate, in January or February, 1844. The sentence.or decree which is appealed from, must then be reversed. But as ¡this is a new question, arising for the first time under the provisions of the. revised statutes, I shall not charge the respondents .with costs upon this appeal; nor with the costs of the administrator upon the proceedings before the surrogate.