Long's Estate , 6 Watts 46 ( 1837 )

The opinion of the Court was delivered by

Rogers, J.

It appears from the facts stated, that the suit was not brought until 1832, about seven years after the death of accountant’s intestate, and not until after the death of Abraham Sypher, the brother of accountant, who executed the note. This was an unreasonable delay, and unless a satisfactory reason can be given for this want of diligence to enforce the collection of the money, the administrator is chargeable. It is said, that the administrator of Abraham Sypher, maker of the note, has taken defence against its payment, by alleging that it is a forgery; but it is obvious from the account which the administrator himself has given of the transaction, that every difficulty which he has experienced hr the collection of the debt, has arisen from his neglect; for Abraham Sypher acknowledged the debt in his lifetime, and, from time to time, _ promised payment. It is therefore plain, from his own showing, that if suit had been brought, or the ordinary and proper steps had been taken, the money would have been long since in a course of collection. But it is said, in excuse for his delay, that he had money of his own to collect from him, that he was unable to pay, without selling his property, and that an ejectment was then pending for his land. But this does not free the administrator from the imputation of a want of legal diligence, as these circumstances should rather have induced an increased attention to the recovery of the money, or at least securing the amount due, which certainly could have been done, as it is understood the estate of Abraham Sypher is still solvent. Although the fraternal feelings of the administrator, may have properly induced him to favour his brother in the difficult situation in which he was involved, yet this cannot be done at the expense of the estate. By this course, the administrator has secured his own debt, but has lost, or put in jeopardy the whole claim of the estate. From the whole case, we are of the opinion, that with proper diligence, the debt might have been collected, and that, for this reason, the administrator has been properly charged.

The second, third and fourth exceptions have not been sustained. We are unable to perceive any error in this part of the case, sufficiently tangible, to induce us to alter the account in any respect.

Decree affirmed.