dissenting. — I would dismiss the exceptions in this case because there are sufficient circumstances in the evidence to support the learned auditing judge’s finding as a “presumption of fact” that the deceased mortgagor’s personal liability was released.
The three principles of law governing this case have been most recently restated and elucidated in Conrad’s Estate, 333 Pa. 561, and may be set forth categorically as follows:
1. The distinction between a “legal presumption of payment” and a “presumption of fact of payment” must be carefully observed. The former can arise only after 20 years have passed, and will arise from the lapse of time alone. The latter may arise in less than 20 years but must be found from evidence of circumstances other than mere lapse of time. To quote the words of the Supreme Court in Conrad’s Estate, 333 Pa. 561, 565:
“. . . it is well established that, where there is a long delay, presumption of payment of a sealed instrument may arise in a period less than twenty years if there is a factual basis to support it other than the delay. The lapse of time combined with other circumstances is evidence from which a presumption of fact may arise that payment has been made.”
2. In determining the sufficiency of the evidence or circumstances from which a “presumption of fact” may be found, the rule is, the longer the lapse of time from the due date of the debt, the less the evidence required to establish it: King’s Exec. v. Coulter’s Exec., 2 Grant 77; and as it approaches the 20 years only slight circumstances are necessary to find the presumption: Hughes v. Hughes, 54 Pa. 240; Woodward v. Carson, 208 Pa. 144.
3. Where the obligor is dead and the claim was due for many years in his lifetime, with no effort to collect the same, nor any explanation made of the failure to do *349so, the familiar doctrine that long-overdue claims not presented until after death are to be viewed with the greatest suspicion applies with equal force to claims on specialties as to ordinary debts: Conrad’s Estate, supra, at page 567.
In view of these applicable principles, I conceive the question to be decided by the court in banc is, whether the circumstances presented to the auditing judge are sufficient to support his finding that the personal liability of the obligor had been released: Grenet’s Estate, 332 Pa. 111. Exactly what these circumstances may be, it was said in Diamond v. Tobias, 12 Pa. 312, 314, “never has been, and never will be, defined by the law. There must be some circumstances; and where there are any, it is safe to leave them to the jury.” And it has been said:
“No fixed rule of substantive law or evidence can be laid down as to the scope, quality or quantity of the additional circumstances necessary to support the presumption of payment arising from a delay of less than twenty years. Each case depends upon its individual circumstances. Such proof as the debtor’s ability to pay during that period, or, a statement of the creditor or obligee that the debt was paid, or it was regarded as not owing, or he had destroyed the note, have been held sufficient in conjunction with the lapse of a long period of years before bringing suit”: Conrad’s Estate, supra, p. 566.
Illustrative of the kind of circumstances which, together with a long lapse of time, have been held sufficient to raise the “presumption of fact” are the following: Woodward v. Carson, supra, where a judgment was shown to have been collectible and that no execution was issued thereon for 13 years after entry; Diamond v. Tobias, supra, where a transcript of a judgment of a justice of the peace was not filed in the common pleas court until more than 19 years after it had been rendered, and there was nothing to show that an execution had ever been issued by the justice; Morrison v. Collins et al., 127 Pa. 28, where it was said the fact that the holder of a note under seal was *350constantly pressed for money while defendant was abundantly able to pay, would be sufficient; and the same was held in Hughes v. Hughes, supra.
What, then, were the circumstances in the evidence before the auditing judge which, together with the long lapse of 18 years, support his findings? I catalogue them as follows: (1) No demand, claim, or suit was ever brought in decedent’s lifetime, notwithstanding the fact that the principal of the mortgage debt was long overdue; (2) her executor’s account shows that at the time of her death she had abundant ability to pay the debt, and it is not shown she was ever without means; (3) the mortgaged property was conveyed away by decedent subject to the mortgage within one year after the date of. the mortgage, and the last payment of interest made by her was more than 20 years from the date of the audit; and (4) the mortgagee in 1929 entered into an extension of mortgage agreement with a subsequent grantee who expressly assumed personal liability for the payment of the bond.
These four circumstances, together with the fact that the bond is more than 20 years old from its date (August 19, 1919), and nearly 19 years from its maturity date (August 19, 1921) had passed at the time it was presented for audit, would seem sufficient for a trier of the facts to find a presumption of release of decedent’s personal liability: Piper’s Estate, 208 Pa. 636; Bachman’s Estate, no. 1780 of 1937, and the authorities above cited.
While most of the cases cited speak of presumptions of payment, they are equally applicable to presumptions of release or discharge. A release need not be under seal nor necessarily in writing, and it may be implied from circumstances : 53 C. J. 1198, secs. 7, 8. A release is akin to payment. In a sense, a release is but a species of payment. The greater includes the less, and the same principles of law ought, therefore, to govern; indeed, it was expressly so held in Piper’s Estate, supra, at p. 641.
*351Nor does Willock’s Estate, 58 Pa. Superior Ct. 159, present any difficulty. That case merely rules that the execution by the mortgagee of an extension agreement, of itself, does not operate to release a mortgagor from his primary and personal liability on the bond. It does not rule that the execution of such an agreement cannot be regarded as one of the circumstances which, with others and a long lapse of time, will support a finding such as the auditing judge has here made. It may also be pointed out that in Willock’s Estate foreclosure of the mortgaged property had taken place, the claim there being for the deficiency arising from the sheriff’s sale. Moreover, only seven years had elapsed at the time of the audit from the date the obligor had conveyed away the property. Here nearly 19 years had passed.
To my view a controlling authority ruling the instant case is Piper’s Estate, in which the learned Judge Pen-rose, whose opinion was adopted by the Supreme Court, makes plain (on p. 639) that he would have decided the matter before him exactly the same way even if the conveyance by the deceased mortgagor, “under and subject to the mortgage debt,” were to be considered as an acknowledgment by the mortgagor as of the date of that deed, which was only 11 years before the date of the claim. The reason was well stated by that able jurist as follows (p. 640) :
“The policy of the law is against keeping open the administration of the estate of a decedent, and continuing, indefinitely, a liability upon his personal obligations. Hence, it was held in Quain’s Appeal, 22 Pa. 510, followed by Williams’ Appeal, 47 Pa. 283, that the covenant of one who had purchased land upon ground rent could only be enforced for rent falling due after his death, as against the land. It is not easy to see the distinction between the personal liability of a mortgagor, on the bond accompanying the mortgage, after he has sold the land subject to the mortgage, and after his death, and that of a purchaser on ground rent on his covenant to pay. Theoretically, the *352bond is the principal debt and the mortgage the collateral, but in general the reverse is the real relation; and after the lapse of many years, during all of which the creditor has received his interest from the successive purchasers of the mortgaged property, with no suggestion of claim for the principal, though long overdue, from the original debtor on his bond, it may well be presumed that personal liability has been released or discharged.”
Having come to the conclusion that there are sufficient circumstances from which a presumption of fact of release might be found, I would sustain the auditing judge’s finding because it is entitled to the same respect as a verdict by a jury: Schoonover’s Estate, 44 Pa. Superior Ct. 76.
Judge Bolger joins in this dissent.