The opinion of the court was delivered by
Rogers, J.In this case, which -was an action for a distributive share of an intestate’s estate, the court instructed the jury, that the plaintiff was entitled to recover, without having filed or tendered a refunding bond before suit brought; and that the plaintiff’s claim was not barred by the eighteenth section of the Intestate Act of the 19th April, 1794, or by the act of limitations. On both points, we are of opinion, the instruction was right.
A distinction has ever been taken between a suit for a distributive share, and for a legacy. In the latter, a refunding bond is made necessary by the express words of the act. . In the former, the omission cannot be pleaded in bar to the action, for it may be filed at any time when required; for the court will taire care no injustice is suffered to be done, by staying the proceedings- till a reasonable indemnity be given. Besides, even in the case of an action for a legacy, the objection must.be taken in an early stage of the cause, by plea in abatement, or by motion to abate the writ. Wood v. Davidson, 2 Rawle, 52; Patterson v. Nichols, 6 Watts, 382; Baughman v. Kunkle, 8 Watts, 484.
On the latter point, the plaintiff in error relies on the eighteenth sec*374tion of the act of 1794. This act provides, “ That all suits of the intestate’s relations and persons concerned, who shall not lay claim to their respective shares within seven years after the decease of the intestate, shall be debarred from the same for ever.” This act applies to the personal, and not the real estate of the intestate, and is intended to protect administrators, and the personal representatives in the event of the distribution of the estate by the administrator without notice. When payment of the funds is made in good faith, it cannot afterwards be disturbed by an heir who has neglected to claim his share in proper time. The administrator has a right to rely on the act, in such case, for his shield and protection. But it never was designed that it should be used for the unjust purpose of enabling the administrator to put the money, against all "good faith, in his own pocket. The administrator is a trustee for the next of kin, and, while a trust subsists, the statute does not.continue to run between the trustee and cestui que trust. Lapse of time in this, however, as in every other case, may raise a presumption of payment.
Judgment affirmed.