The demand of the plaintiff is not contested, and he claims to charge the persons summoned as trustees, on the ground that they are the executors of Oliver Comey, the father of the defendant, who by his last will left the principal defendant a legacy. The will has been proved and allowed, and the debts and legacies have been paid out of the personal estate, with the exception of the legacy to the defendant, and there is real estate sufficient, on a sale, to provide for it.
By our statute, (Rev. Sts. c. 66, § 16,) a legacy is recoverable at common law. Again; where a legacy is given by a will that is effectual to pass real estate, and the personal estate is insufficient to pay such legacy, the executors may be licensed to sell the real estate for that purpose. Rev. Sts. c. 71, <§> 20. And it is also provided that any legacy, due from any executor, may be attached in his hands by the process of foreign attachment. Rev. Sts. c. 109, § 62.
The executors, then, must be charged as -the trustees of the defendant, unless they can show matter in discharge of themselves. This they attempt to do, by alleging their belief that the princinal defendant is dead—and by the facts it appears that tne ueienoant was iast neara irom October 18th 1838; and the date of the writ in this case is May 17th 1843, a period of tour years and seven months. The supposed rumor of his death, it is agreed, was prior to the Iast intelligence of him. The facts, as they existed at the date of the writ, must govern the case ; nothing having since transpired to alter them. The presumption of death does not arise until a period of seven years has elapsed from the time the person has been heard from as living, which time has been adopted from the St. of 1 Jac. 1, c. 11, <§> 2, respecting bigamy, and the St of *46219 Car. 2. c. 6. respecting leases for lives; and within that time the party is presumed to be alive, until the contrary is proved. Doe v. Jesson, 6 East, 85. Doe v. Deakin, 4 Barn. & Ald. 433. Loring v. Steineman, 1 Met. 211.
Upon these facts, the executors, who are summoned as trus tees, must be charged, and judgment be entered for the plaintiff. But execution is to be stayed, to give the executors opportunity to apply for license to sell the real estate, or as much as may be necessary for the purpose, and turn the same into money; and the plaintiff is to give a sufficient bond, if required by the executors, to refund the debt recovered, if the same shall he needed to satisfy any demands that may hereafterwards be recovered against the estate, and to indemnify the executors.
Trustees charged.