The following concurring opinion was delivered by
Agnew, J.I concur in the judgment in this case on the ground that the Statute of Limitations was suspended by the want of letters testamentary. But I cannot assent to the principal ground on which the case has been rested in the opinion. It seems to me contrary to the policy of the state, to the spirit of the laws regulating the settlement of estates, and to the interests of all persons in succession; and is an extension of the doctrine of McClintock’s Appeal beyond its just limit. That case decided that a debt not barred at the death of the decedent was not barred at the settlement within two years thereafter. This case decides that it is not barred six years afterward, and in effect that the creditor may hold his debt back as long as any estate remains. He may go into the Orphans’ Court at any time, and be allowed his claim nolens volens, even though he cannot recover at law. This is to make two rules for the administration of estates: one at law and another in equity. In Man v. Warner, 4 Whart. 465, a case most elaborately argued, and decided on a discussion of ali the authorities, it was held that a debt was barred though not due at the testator’s death, notwithstanding a provision in the will for the payment of all debts and for carrying on the business. The same doctrine was held in Mitcheltree’s Administrator v. Veach, 7 Casey 455, in which it was said McClintock’s Appeal does not, apply to actions at law. The result is that the debt has under these decisions a double status. In Kittera’s Estate, 5 Harris 416, a creditor, and in Hoch’s Appeal, 9 Harris 280, a legatee was held to have the right in the Orphans’ Court to contest a creditor’s claim on the ground that it is barred by the statute; and in -Ritter’s Appeal, 11 Harris 95, it is held that the executor or administrator, though not bound himself to set up the statute, is compellable to do so if required by distributees or legatees. Now, if the reason given for the decision in this case be law, we have the singular consequence that the claimant, though he cannot recover at law, can come into the Orphans’ Court at any time less than twenty years after the death of the decedent, and be *14allowed his claim against the protest of all other parties in interest, be they other creditors, the administrator, the legatees and next of kin. And there is no difficulty in doing this, even after the settlement of the estate and balance paid over to the legatees or distributees, for the administrator is bound to take refunding bonds to answer debts that shall afterward appear. The error, I conceive, lies in applying to a legal system of administration the doctrine of those peculiar technical trusts not cognisable in a court of law, but belonging exclusively to a court of chancery. It is only these that are protected from the Statute of Limitations. But this is a system reared and regulated by law. While the administrator is a trustee in the sense that he is to administer the estate for the benefit of others, he is to do this not as a matter of pure conscience, but as a matter of law, and it is a non sequitur that a creditor stands in the relation of such a cestui que trust, whose interests are peculiarly and extrinsically cognisable in equity, and are therefore to be tenderly cared for and preserved by a chancellor. On the contrary, he is a claimant adverse to ail other creditors and to all in succession to the estate, a party whose interests are hostile, and is therefore bound to due diligence, and has his remedy at law, and is not necessarily cast into the arms of the chancellor. On what principle of fair dealing shall he hang back, and, after long years, when parties entitled to the succession have supposed all debts paid, and have formed their plans of life founded on the estate believed to be theirs, then come in to rob them of their heritage? In my judgment it is contrary to two maxims of equity: that equity favors not stale claims, and that equity follows the law in regard to limitation. McClintock’s Appeal, decided without a single authority, was a virtual repeal of the statute, on the supposition of a peculiar trust cognisable in equity alone, a clear mistake, seen at the instant that the character of the system of the administration of estates regulated by law appears. But let that case stand as authority to the extent of its facts, that a debt not barred at death is not barred at a settlement within six years afterward. But do not extend it to any indefinite period beyond six years after death or letters of administration taken out. The debt must be proved in order to seat it on the trust. Equity, following law, should say to the claimant, if you do not present your claim and have it allowed by the trustee within six years you are to be cast upon the law, and the rights of legatees and distributees are not to be affected, administration is not to be delayed, and the administrator should not be prevented in the Orphans’ Court as well as in the Common Pleas from denying your right to come in on the fund. It is against the whole policy of the law, which fixes a period for the settlement of estates, and gives the right to distributees and legatees to demand payment after the lapse of one year, and thereafter *15at the end of every six months estimating the debts yet to be paid and retaining a sum accordingly. It is against the same policy which limits liens and actions to subject real estate, a secondary fund, to the payment of debts. It is impossible to discern a reason why the personal estate, the primary fund, should be exempt from all limitation, and why legatees and distributees should be compelled to wait for all time on the tardy movements of creditors. More might be said, and better said; these remarks being hastily thrown together this morning to indicate the ground of my concurrence, and what I do not concur in. See Trinity Church v. Watson, 14 Wright 528-9.