The validity of a claim against the estate of a decedent is not necessarily determined by its antiquity; but, when the ancestor permits a period exceeding thrice the statute of limitations to go by without attempt at legal enforcement, the heir should be held to strict proof of whatever may be necessary to take the case out of the operation of the statute, and of what may be essential to a recovery. According to the record this claim, if it ever had an existence as against the estate of Boswell Cowles, became enforceable in February, 1865, upon the death of the widow. At that date the heirs at law of Boswell succeeded to the entire inheritance, if it were undisposed of by will. It is shown, however, by such proof as is deemed sufficient to establish the' debt, that Boswell disposed of the estate by will, and that by reason of the provisions of that document the estate remained undisturbed from 1848 to 1868, three years after the demise of the widow. While not accurately proven, it seems to be conceded that, and because of the will, Caroline B. Durand, the ancestor, succeeded to no right in the estate until after her mother’s death. Such being the case, and it being conceded that there was a will disposing of Boswell Cowles’ estate, it was important, and even absolutely indispensable, to show what that will ivas in order to derive any claim by inheritance through the immediate heir, the mother of the present claimant. When the existence of a will disposing of the estate is once conceded, no heir can establish any rights by inheritance on *347simple proof of descent. Under such circumstances the statutes of descent and distribution do not become operative. It is thus evident that Caroline B. Durand might be the daughter of Boswell Cowles, and live and die without ever having acquired any right to share in his estate. Ho proof was offered on this subject, and the claimant, Helen S. Hall, failed to establish her distributive right to any share in Boswell Cowles’ estate through the right of her mother. There was a like failure to establish the liability of William Cowles or of his estate. He was an heir of Boswell, and the brother of Caroline B. According to the tesmony he came into possession of some money, and of some stocks of undetermined value. But there was a failure of proof as to two important questions: Was this property a part of Boswell Cowles’ estate? and did he receive it as trustee, so as to come within any rule depriving him of the benefit of a plea of the statute of limitations ? There is a strong presumption arising from the testimony that William, on the death of the original executor, Brooks, succeeded to the control of some part of his father’s estate; but it lacks the certainty essential to the enforcement of so ancient a claim. It was indispensable to show with certainty that he got money which was a part of the estate, and to prove the amount of it. Heither was established by sufficient or satisfactory proof. The failure to establish the capacity in which William took what he may have gotten is equally apparent. Without deciding whether a trustee is forbidden to insist oh the plea of the statute, it is enough in this case to hold that the claimant failed to prove that William Cowles occupied any such position. If he received any part of his father’s estate, it is not shown where, how, or from whom he got it. It may have come into his hands by loan, or from third parties, to whom alone he would be answerable. The absence of evidence establishing the existence of the relation of trustee and cestui que trust would forbid the application of the rule contended for.
If the mother, Caroline B., living, had an enforceable *348claim against William or his estate, the right, or any portion of it, did not descend to the heir at law, Helen S. Hall. Upon the death of the mother, whatever of property right she may have had in it went to her legal representative, whoever that might he; and only in his right of representative could he sue for and collect it. It may be true, according to the evidence, that under the laws of Wisconsin the children inherit from the mother, to the exclusion of the husband and father. It did not appear either that the mother lived and died in Wisconsin, or that the general rule of law which vests the right to all personal property in the representative was varied by statute in that state. The inheritance could only be available through an appeal to the statutes of descent and distribution. The administrator or the executor could alone present or enforce this claim. The present proceeding is an attempt to collect an undistributed share of an undivided portion of an unsettled estate. Ho authority for such an unusual proceeding was cited or referred to. Unless compelled by well-recognized adjudications, no such rule will be followed or declared. These considerations must control the judgment in this case. The claimant is without the legal capacity essential to the maintenance of the action; and, whatever may have been the rights of Caroline B. Durand in her father’s estate, they were not established with sufficient certainty to permit a recovery, even though it were conceded that the daughter had the right to prosecute the claim. The judgment should be affirmed.
Richmond and Reed, CO., concurring.
Per Curiam.For the reasons stated in the foregoing opinion the judgment below is affirmed.
Affirmed.