The opinion of the court was delivered,
by Sharswood, J.It has not been and eannot be contended that the lapse of twenty years does not give rise to'a presumption- of payment of the distributive shares of the estate of an intestate, and that the computation begins from the period when the money is demandable: Diemer v. Sechrist, 1 Penna. R. 419. When it may be legally demanded is the principal difficulty. In the case of a suit upon an administration bond it was held to begin primá facie at the expiration of a year, when the administrators might have been cited to file their accounts; so that proof of circumstances to prevent the presumption from starting at that time, rested on the claimant: McLean v. Findley, 2 Penna. R. 97. In the proceeding now before us where the demand is for a share of the proceeds of real estate sold by the order of the Orphans’ Court, the application of the same principle seems to require that it should date from the receipt of the purchase-money by the administrators, before which a citation to them would have availed nothing. It was settled, however, by this court, while an action could be *158maintained at common law to recover a distributive share, that'the presumption was not rebutted by the settlement of an administration account, which though it might show a balance in the hands of the accountants, was no admission that it had not been paid over or distributed to those entitled, the distribution having no place properly in the administration account: McLean v. Findley, 2 Penna. R. 97; Foulk v. Brown, 2 Watts 209.
It is earnestly contended, however, that since subsequent Acts of Assembly have vested exclusive jurisdiction in the matter of the distribution of the estates of decedents in the Orphans’ Court, so that no action at common law can now be maintained, the decisions in these cases are no longer applicable in the existing state of the law: Ashford v. Ewing, 1 Casey 213. The process of the Orphans’ Court is a citation to the administrators to file an account as far as they have administered and to-make distribution of what may be in their hands, and when therefore they come in and voluntarily file an account showing a balance it is no more than could have been compelled by an adverse proceeding, and the period therefore from which the presumption should now be computed ought to be the date of the final confirmation of the account, when the heirs could first ask for a decree of distribution. This argument has great force and is entitled to serious consideration. It overlooks, however, as it appears to us, a very material feature in our system; which is, that the distribution of the estate of a decedent is not required to await the settlement of the final administration account. If it were so it might be unnecessarily postponed to a very late period. Accordingly the Act of February 24th 1834 (Pamph. L. 80), after enacting that “ no administrator shall be compelled to make distribution of the goods of an intestate, until one year be fully expired from the granting of the administration of the estate,” goes on to provide that “ whenever distribution as aforesaid shall be required by any person interested, the administrator shall present to the Orphans’ Court having jurisdiction of his accounts, a statement of all demands against the estate, which have been made known to him, and after deducting the amount thereof from the assets in his hands, together with such further sums as may be necessary to pay the interest and costs of suit of such as may be in dispute and of such as he may deem it his duty to dispute, make distribution of the residue, under the direction of the Orphans’ Court aforesaid.” And by the 40th section: “ After six months elapsed from a distribution made as aforesaid, the like proceedings, in all respects, may be had for the distribution of further assets, if any shall then remain after deducting as aforesaid for other demands, which may have been made known to the administrator,’and so from time to time, until the whole estate shall be settled and distributed.” These may and no doubt most commonly do take the form of partial accounts, *159ending at last in a final account. But it is evident that at the end of the first year the administrator may have no account to settle: he may have paid no debts, and have therefore no credits to claim. In answer to the citation he may present therefore what the act terms “ a statement,” upon which a decree of partial distribution may be based. It is evident then that such a decree is not necessarily predicated of a settled account, partial or final. It follows that so far as the question before us is concerned, it has not been affected by the alteration of the law. The tribunal only has been changed. As funds are realized by the administrators the distributees may immediately, and from time to time, proceed to compel their distribution. The settlement of an administration account showing a balance due the estate is therefore no more now than formerly an admission that the amount is actually in the hands of the accountants, and has not been paid over. Administration is still one thing — distribution another and distinct thing. The practice of blending an administration with a distribution account has been condemned by this court in strong terms as erroneous and fraught with the mischief of confusion and disorder : Yundt’s Estate, 6 Barr 35. It follows that the law on this subject was accurately stated to the jury by the learned judge below in his answers to the plaintiffs’ points complained of in the 1st, 2d and 4th assignments of error.
There is no error injurious to the plaintiff in the answer to his point, which is the subject of the third assignment. Evidence was given with a view to rebut the legal presumption, and eventually the question was submitted to the jury. In this view it was entirely proper to instruct them that “ while the memorandum or statement appended to the account may not of itself be evidence of payment of money to the distributee in an estate recently settled, it ought to be allowed some force after so great a lapse of time has passed in this case.” The account was filed, as we have seen, not as a distribution account but diverso intuitu. The accountants could not properly include and claim credit for payments made to the heirs. But it was claimed as a solemn admission of record within the twenty years that there was that much money in hand undistributed. Surely the whole must be taken together on the familiar principle of evidence. The paper appended was in the nature of a protestando in pleading — an exclusion of a conclusion. . To preclude the inference that by the final account showing a balance they meant to admit that the amount was not distributed, they appended the statement that they held receipts in their hands from each heir in full for their respective shares. After a lapse of time only three days short of twenty years from the filing of that account to the commencement of this proceeding, .it was certainly a circumstance to be submitted to the jury with the evidence offered and received to rebut the legal pre*160sumption. This evidence was very slight. A single witness testified that, some nineteen years before the taking of the deposition, perhaps about a year after the filing of the account, one of the defendants told her that he had offered to pay the plaintiff twenty dollars, and that she would not take it. The remarks of the learned judge upon this evidence in his charge form the subject of the 5th assignment of error. He had an undoubted right to express to the jury his opinion that it did not amount to an acknowledgment of the plaintiffs’ claim, but he nevertheless submitted the question to them. There are some other points made in the printed argument, but as they do not appear to have been raised below, and are not included in the assignments of error, we are not required to consider them.
Judgment affirmed.