dissented.
The appellee subsequently moved for a re-argument, on the grounds, 1st, that the executors of William Yorks, deceased, failed to give notice of the granting of letters testamentary to them as required bjr the Act of February 24th, 1834, (P. L. 73); 2d, that an express trust was created by the following clause in the will: “It is my will and I do order that all my just debts and funeral expenses be paid as soon after my decease as may be practicable ” ; 3d, stare decisis.
The motion for re-argument was refused on January 4th, 1886, Mr Justice Paxson delivering the opinion of the court.
We have carefully considered the motion for a re-argument in this case. The principal ground upon which it is asked, and the only one necessary to discuss, is, that the executors did not comply with the law by giving notice to creditors and other persons interested, of their taking out of letters testamentary. From this it was argued that the delay of the appellees in presenting their claim against the estate of William Yorks, deceased, would not bar the recovery of said claim.
That such a defence would be no answer to the plea of the Statute of Limitations in an action at law is too plain for argument. The death of a debtor does not stop the running of the statute: Man v. Warner, 4 Wharton, 455; Micheltree’s Adm’ v. Vrech, 7 Casey, 455; McCandless’ Estate, 11 P. F. S., 9; Campbell v. Fleming, 13 P. F. S., 242. Whatever respousibility the executors may have incurred by their neglect in this matter, it is manifest that such neglect would not toll the statute. It is not even asserted that the executors of John Heiner’s Estate did not know of Mr. York's death and of the probate of his will, while it is in evidence that one of them bad actual knowledge thereof and transacted business with York’s executors as such.
We are reminded, however, that we are in the Orphans’ Court, where the rule at law does not apply, and McClintock’s Appeal, 5 Casey, 360 was again invoked and pressed upon our attention. The principle decided in the case in hand was not decided in McCiintock’s Appeal, and I endeavored to point *78out the distinction between the cases. Subsequent examination and reflection have satisfied us that it was a mistake not to have overruled McClintock’s Appeal, That we did not do so then was due in part to two reasons. It was not considered absolutely essential to the decision of the present case, and we have great reluctance in revising and changing what our predecessors have done. Where a rule of property has been established it is better to let it stand, although subsequent experience should satisfy us that it is an erroneous one. A rule of property can only be changed by an Act of Assembly without unsettling titles. But McClintock’s Appeal is not a rule of property, and it was a mistake. It is far better when this court commits a blunder to correct it in a manly way than to imitate the ostrich by hiding our heads in the sand. McClintock’s Appeal deliberately overturned the law as it had stood for more than one hundred years, and repealed the Statute of Limitations so far as it applies to the Orphans’ Court. All this was done in an opinion of less than a page. No authorities were cited, for none existed, and the reasoning by which that judgment was sought to be sustained is unsatisfactory. It has been followed with reluctance since, and it is not too much to say that it never had the approval of any considerable body of the profession. It is an excrescence upon our system of jurisprudence which cannot stand, and the knife might as well be applied now as to wait a few years longer. The delay would only result in a few more dead men’s estates being plundered. That it has only worked mischief, and that continually, we have ample means of knowledge. Without any authorities in its support, with a long line of cases against it which were not even noticed, and in the face of an Act of Assembly, by the mere stroke of the judicial pen it deprived the estate of a dead man of the benefit of the Statute of Limitations, while it left his living antagonist in the full enjoyment of it. That decision further involves the anomaly, that in actions at law the executor may plead the statute, while in the Orphans’ Court he may not do so. This singular result was reached in McClintock’s Appeal by applying a rule in chancery to a case for which it was never intended. It is evident to my mind that the opinion was hastily written and without the examination of any of the authorities. Had the learned judge who wrote it gone over them I am satisfied he never would or could have reached the conclusions he did. The mistake consists in this: Starting out with the conceded fact that an executor or administrator is a trustee, he assumed that it was such a trust as came within the well known rule in chancery that the Statute of Limitations is not a *79bar to a proceeding in equity between the cestui que trust and his trustee.
That the statute does not apply to cases of trust and fraud is familiar law; it is to be found in every text book, and is not disputed. But there are many express trusts to which the rule does not apply. In Kane v. Bloodgood, 7 Johns. Chan., 90, that eminent jurist, Chancellor Kent, held that every deposit is a direct trust; every person who receives money to be ]>aid to another, or to be applied to a particular purpose is a trustee; the cases of hirer and letter to hire, borrower and lender, pawner and pawnee, principal and agent are all cases of express trust; yet such cases are not taken out of the Statute of Limitations when sued at law, and ought not to be, and are not, by the better decisions in chancery; and he comes to the conclusion that the trusts not to be affected by the statute in chancery, are those technical and continuing trusts, which are not cognizable at law, but which fall within the peculiar and exclusive jurisdiction of chancery. The foregoing will be found cited with approval in App v. Driesbach, 2 Rawle. at page 302, where there is an extended review of the authorities cited by Chancellor Kent, and Kane and Bloodgood is thus made of binding authority in this state. It is a leading case, decided with great care, and may be considered as settling the law in New York, and has been fully recognized and adopted here. From it we gather that those trusts to which the Statute of Limitations does not apply must be:
1. —Direct and continuing.
2. —Exclusively cognizable in equity.
8. — Arising between trustee and cestui que trust.
Whatever may have been the case formerly, I do not understand there is any dispute now as to the correctness of the foregoing summary. At one time the decisions were vague upon this subject. Some of the opinions are loose, and say that trusts in general, and other direct trusts, are not barred by the statute. This is notably so in the earlier English cases. “ But these general expressions were soon qualified. Modern cases gradually narrowed the limits of the doctrine, and at length have defined it with precision. It would be labor lost, to follow step by step, the long and tortuous series of cases down to Kane and Bloodgood, and Murray and Coster, in which the final results are accurately developed, and to App v. Dreisbach, the Pennsylvania case, which recognizes those New York cases, and renders them conclusive authority in this court:” Warner’s Estate, 2 Wh., 295.
This brings us directly to the question whether as between the executors and the ci’editors of the estate, there is such a *80trust as conies within the above description ? I throw out of view the question of the character of the trust between the executor and next of tin and legatees. That question is not before us and will not be considered further than to remark that in those instances there is a trust pure and simple. No relation of debtor and creditor exists or can exist in such cases. But in the case of creditors the ordinary relation of debtor and creditor existed at the time of the death of the testator, and it continues after that event. Hence it -was said in Man v. Warner, 4 Wharton, at page, 477: “ In a court of law an executor or administrator represents the deceased; and there is no more trust between him and the creditor, than there was between- the deceased in his lifetime and the creditor; and it has not been said that the statute could not be pleaded with' effect in a court of law.” Conceding for the sake of the argument that in the Orphans’ Court the executor may be regarded as a trustee for the creditors as well as for the legatees and next of kin, what then? Is it a trust of that direct and peculiar character as is only cognizable in chancery? To state this proposition is to answer it. Here is a claim against a dead man’s estate upon a promissory note. It would be absurd to say that such a claim is exclusively cognizable in equity. It is a legal claim enforced in a court of law. Indeed,1 it is only recently that the Orphans’ Court had any jurisdiction over the claims of creditors: Warner’s Estate, 2 Wh., 295. And now it is conceded that the jurisdiction of that court is only concurrent as to them. The remedy at law still exists unimpaired, and the creditor may commence his suit and thus tolL the statute.
The relation which subsists between a creditor and the estate of his deceased debtor, is that of debtor and creditor, with a trust superadded, by means of which, and the machinery of the Orphans’ Court, he can demand his proportion of the trust fund, after his claim has been established. When so established it may be said to be seated on the trust, and there is some room for the application of the principle of McClintock’s Appeal. But in attempting to establish it the creditor is pursuing the estate of the decedent as his debtor: no other relation exists but that of debtor and creditor, and the Statute of Limitations may be set up in any forum which has jurisdiction of the case.
■ McCandless’ Estate, 11 P. F. S. 9, as before observed, is one of the cases following McClintock’s Appeal. It adds ho strength to it, however ; on the contrary, it is weakened by a dissenting opinion of Mr. Justice Agnew, which has not been and cannot be answered. The learned judge who delivered the opinion recognized the test as I have stated it, and then *81assumes that the trust comes within the description. The only attempt which he makes to sustain this assumption is to show that there is a trust, which no one disputes. But there is riot even an effort to show that it is a trust exclusively cognizable in equity, while the superadded relation of debtor and creditor is wholly ignored, as it was in McClintock’s Appeal.
In Campbell v. Fleming, 13 P. F. S. 242, McClintock’s Appeal received a damaging blow. Upon the trial of that case in the court below, the plea of the statute had been overruled. It was an action at law against the administrator. The judgment was reversed here, Agnew, J., saying in delivering the opinion of the court: “ To hold that when an action is brought for a debt against the administrator, the statute cannot be pleaded with effect, is to contradict all those cases in which it has been decided that a debt is not revived by a promise of the administrator to pay it: Fritz v. Thomas, 1 Wh. 66; Steel v. Steel, 2 Jones, 64; Clark v. Maguire, 11 Casey, 259. It contravenes also those deciding that the creditors and others interested may intervene and plead the statute: Hoch’s Appeal, 9 Harris, 280; Ritter’s Appeal, 11 Id. 96; Kittera’s Estate, 5 Id. 416. In some of these cases the fund was in the Orphans’' Court for distribution. How McClintock’s Appeal can stand against all these cases I could not myself perceive, and therefore dissented from the judgment of my brethren last winter at Philadelphia, reaffirming it, in its application to the facts in the case of McCandless’ Estate, 11 P. F. S., 9. In McClintock’s Appeal not a cited case appears in the argument of counsel or the opinion of the court. It is counter also to the whole policy of restraining liens against the estates of decedents found in the Act of 24th February, 1834, as will be seen in a full summary in the opinion in the case of Trinity Church v. Watson, 14 Wright, 528. McClintock’s Appeal has been recognized, however, within the narrow field of its facts; and my purpose is not to deny its authority, but to show that its sphere is not to be extended, and to add that we all regard it as inapplicable to a gase where an action is brought directly against the administrator.”
This case fully justifies the remark in another part of this opinion, that the court has followed McClintock’s Appeal with reluctance, and that we were not long in confining It “ within the narrow field of its facts.”
I have no desire to elaborate this point. I think I have said enough to show, both upon reason and authority, that the trust between an executor or administrator and the creditors of a decedent’s estate, is not a trust of that peculiar kind which is within the exclusive control of a chancellor, and to which the Statute of Limitations cannot be pleaded; that on *82the contrarj'-, it includes the direct relation of debtor and •creditor, in which either party may plead the Statute of Limitations.
Since McClintock’s Appeal, the right to plead the statute has been allowed in a suit at law and denied in the Orphans’ Court. The fact that the creditor could sue at law, and that the statute could be pleaded in such proceeding, is an answer to the assertion that there is a trust exclusively cognizable in equity. The right to plead it in one court and not in the other is, as before observed, an anomaly. I know of nothing to sustain it, and there is an overwhelming weight of authority against it. As they are all upon one side, a reference to a few of them will be sufficient. In Kane v. Bloodgood, supra, Chancellor Kent lays down this rule as follows: “As to those trusts which are the ground of an action at law, the statute is, and with reason ought to be, as much a bar in one court as in the other.” And he further holds that a party is barred in equity whenever he could have brought his action at law, and neglected to do so Avhile the limitation of the statute intervened. In other words, whenever a party may proceed either by a suit at law or lay a bill in equity, and elects the latter, a court of equity Avill apply the statute precisely as at laAV. This rule was re-asserted in Murray v. Coster, 20 Johns. 576, and is the settled rule in New York. It ,is so in England. Thus in Smith v. Clay, 3 Bro. 639, note, Lord Camden observed that “ as often as Parliament had limited the time of action and remedies to a certain period in legal proceedings, the Court of Chancery adopted that rule, and applied it to similar eases in equity. For when the Legislature had fixed the time at law, it would have been preposterous for equity to countenance laches beyond the period that law had been confined to by Parliament.” This, and a large number of other English cases are. cited by Chancellor Kent, in Kane v. Bloodgood, supra, and I will not further refer to them than b^y quoting the language of Lord HajrD' WICKE, in Sturrt v. Mellish, 2 Atk. 610: “ I have therefore no . hesitation in saying that, in a case where there is a concurrent jurisdiction in the courts of common larv and equitjq the rule must be the same, and the Statute of Limitations may be pleaded with the same effect in the one court as in the other. In cases of trust and fraud, peculiarly, appropriately and exclusively the objects of equity jurisdiction, according to the established doctrine, the statute cannot be pleaded.”
The same doctrine has been repeatedly held by the Supreme •Court of the United States. It is asserted in Willison v. Watkins, 3 Peters, 43, where Kane v. Bloodgood is cited with approval ; also in Thomas v. Harvie’s Heirs, 10 Wheaton, 146; *83Elmendorf v. Taylor, Id. 158; Lewis v. Marshall, 5 Peters, 470; Miller v. McIntyre, 6 Id. 61; Badger v. Badger, 2 Wall. 87; Coulson v. Walton, 9 Peters, 62; U. S. Bank v. Daniel, 12 Id. 32; Rhode Island v. Mass., 15 Id. 283; Peyton v. Stith, 5 Id. 485; Harpending v. Dutch Church, 16 Id. 455; and when no statute covers the case, equity often acts upon its inherent doctrines of discouraging antiquated demands: Wagner v. Baird, 7 Howard, 234; Bowman v. Wathen, 1 Id. 189.
That the same rule exists in this State is too well settled to be controverted. It is sufficient to refer to Wallace v. Duffield, 2 S. & R. 521; Hamilton v. Hamilton’s Executors, 6 Harris, 20; App v. Driesbach, supra. It is useless to multiply authorities.
Equity abhors laches. Hence, I can imagine no greatér anomaly than a creditor prosecuting his claim — a legal claim —against a dead man’s estate in the Orphans’ Court, and saying, I might have brought my suit at law within six years, but did not, and it is now barred by the statute; I appeal to the equity powers of the Orphans’ Court to breathe fresh life into my dead claim and condone my laches.
If the Statute of Limitations be necessary to protect the living from stale claims, how much more so is it to protect the estates of the dead ? Much might be said, and with great force, upon this point, but I forbear. I will content myself with quoting the language of this court in Man v. Warner, supra: “ In point of fact, every person experienced in business knows that more stale claims are brought against the estates of deceased persons than against debtors alive. Often these claims are suffered to sleep until all who could give evidence are removed to the far West, or to another world; and in not a few instances, I have known them to rest until the executors have settled their accounts and died, and an administrator de bonis raised up by the creditor for the express purpose of confessing a judgment.”
McClintock’s Appeal brushed aside a long line of axxthorities without so much as noticing them. It introduced a new rule which experience has shown to be erroneous and full of peril to the estates of the dead. That decision is but twenty-eight years old, and, as before observed, is not a rule of property. We now overrule it, and with it McCandless’ Appeal, and other cases which have followed it; we restore the law as it stood before it was decided, and reinstate the Act of Assembly. We believe this course not only to be justified, but demanded for the public good, and the repose of dead men’s estates.
The motion for a re-argument is denied.
Mekctte, C. J., dissented.