ments of which an intestate has died seised are, by the statute, made assets in the hands of his administrator for the payment of his debts, and in case of a deficiency of the personal estate, may, under an order of the court, be sold for that purpose. But this charge upon the real estate is not a perpetual one which may be enforced by the administrator after any lapse of time. The heirs should not be forever deterred from making improvements on the property, or prevented from selling it, by the possibility that it may be sold for the debts of the estate. The power of the administrator must be exercised in a reasonable time, and will be lost by gross laches or unreasonable delay. What is such reasonable time must be determined by the court, in its sound discretion, under the circumstances of the case.'

In McCoy v. Morrow, 18 Ill. 519, 523, 68 Am. Dec. 578, the court expressed ▲ similar opinion in the following words: "Creditors have a lien in this state against the estate of their deceased debtors for satisfaction of their debts, and which they may enforce through administration, even against purchasers from heirs or devisees. And there is no statute interposing any limitation of time within which the lien must be enforced. The questions then are, Will delay and laches of the creditor destroy his lien and right to pursue the land of which the debtor died seised in the hands of the grantee of the heir holding under conveyance duly recorded? and if so, in what period of time? The notion that this lien is perpetual and may be enforced at any time against land, after alienation by the heir, is wholly inadmissible. Such a rule would render titles to land insecure to a vast extent; and no man who holds land derived through heirs or devisees, after having exhausted all the means the law affords for the ascertainment of the validity of his title, and the existence of liens and encumbrances against the lands, could be reasonably certain that he would not, after the lapse of years, be stripped of his title through such a secret lien, without actual notice or means of defense. At any period his lands might be demanded, and finally wrested from him or his heirs by force of a conveyance under judicial order and sale, obtained without notice in fact, and founded on an apparent debt against some unknown person for years in the grave, through whom his title had passed, and which debt had been hunted or trumped up for that special purpose. . . . . The creditor, under our law, has ample means of, without delay, compelling administration, and, through administration, subjecting the debtor's estate, real and personal, to the payment of the debts against the estate. If he fails to do so within a reasonable time, he will be held to have waived his lien against property descended, and the grantee of the heir will take the title discharged of the lien. It is not necessary in this case to decide what shall be a reasonable period of time for that purpose; for here the delay is so great [nineteen years] as to leave no room, either from adjudged cases or the analogies of our law, for question."

In Gunby v. Brown, 86 Mo. 253, it was decided that in the absence of a statute of limitations prescribing the time within which an administrator must procure an order for the sale of the land to pay the debts of the estate, he must do so within a reasonable time, and that what is such reasonable time must be determined by the court from all the circumstances of each particular case. So in Estate of Godfrey, 4 Mich. 308, it was ruled that when it becomes necessary to sell the real property of an intestate for the payment of his debts, his administrator should move for a sale at the earliest opportunity, and as there is no statute of limitations relating to the subject, it is for the court to determine, in its discretion, what is a reasonable time under the cir. cumstances, and whether the administrator has exercised reasonable diligence.

An early statute in New York provided that in case the personal assets of the deceased were insufficient to satisfy his debts, his administrator should apply to the court to subject the real estate of the decedent to the payment of such debts, "as soon as conveniently may be," and Chancellor Kent, in discoursing upon what would be a reasonable time within which to make application, said: "This is the substance of the provisions of the act upon the subject, and I infer from them that the law intended that the executor or administrator should make his application with due diligence, and in a reasonable time, and if he does not, the judge or surrogate has, from the nature of his judicial trust, a discretion to reject the application. What is a reasonable time may be another question. All I mean at present to say is, that the judge of probate, or surrogate, must be entitled to determine, in sound discretion, what is a reasonable time, under the circumstances of the case, and to determine when the executor did first discover, or had ground to suspect, the insufficiency of the personal estate, and whether, as soon as conveniently might have been, he had made out an account, and filed an inventory, and applied the assets in hand according to the requisitions of the statute. If he has been guilty of gross negligence or palpable laches on these points, he is clearly not in season within the meaning of the act, and the judge or surrogate ought not to permit him, or the creditor who prompts him, by this summary proceeding to sweep away the real estate of the heir ": Mooers v. White, 6 Johns. Ch. 360-376. So in Hatch v. Kelly, 63 N. H. 29, 30, the court said: "But if it be assumed that when the license was applied for the personal estate was insufficient for the payment of the debts, it was properly refused. Whether it should be granted is a question of fact to be decided upon equitable principles, regard being had to the circumstances of the case. It was through their own laches that the creditors have failed to obtain their pay. If they, immediately after the exclusive right of the heirs to administration expired, had applied for administration themselves, they could have collected their debts from the personal estate. But being aware of the debtor's death, and having in the probate records convenient means of ascertaining the non-administration of the estate, they suffered the heirs to take possession of and spend the personal estate, and the creditors of the heirs to attach and levy upon the real estate, and the title under the levy to become perfected as against the heirs, before taking any steps to have the estate administered; and they took no steps in this direction. Their delay should be regarded as an abandonment of their rights. If, under these circumstances, license to sell could not be denied, the title of an innocent third party would be defeated." After a review of the cases on the subject, the court, in Estate of Crosby, 55 Cal. 574, 586, said: "A full examination of the foregoing and other cases, in which it was admitted that the statute of limitations did not apply, will show it to have been held, nevertheless, from the very nature of the proceedings and the character of the duties imposed upon courts where the estates of deceased persons are administered, as well as from the various provisions of the statutes of dif ferent states, which, however they may differ in detail, are all impressed with an evident legislative intent that the proceedings shall be promptly inaugurated and continuously prosecuted without unnecessary delay; that the courts of probate retain the power, and it is their duty, to refuse an order granting leave to sell, when the delay amounts to laches." This reasoning was followed in the subsequent case of Estate of Arguello, 85 Cal. 151, to the extent that a probate court has discretionary power to deny a petition for the sale of the real property of the decedent, when there has been un

reasonable delay without circumstances to excuse its presentation, but a finding by the lower court that the delay was excusable will not be reversed, unless there has been an abuse of discretion.

No Definite Rule as to What Constitutes Laches. — Owing to the different facts arising in the different cases, the courts have been under very great difficulty in establishing any detinite rule as to what lapse of time will constitute laches on the part of the creditor or administrator in applying for the sale of land to pay the decedent's debts, and while no inflexible rule in this respect has been anywhere laid down, the authorities agree that application must be made within a reasonable time. Referring to this difficulty, in Liddel v. McVickar, 11 N. J. L. 44-56, 19 Am. Dec. 369, the court said: "There is no limitation expressly made, no period expressly fixed by the legislature, within which the order for sale should be applied for or made. Reflection and experience both teach the extreme difficulty of prescribing any fixed rule which would, in general, operate safely and justly. This lesson is more impressively taught by the very wide conclusions to which enlightened courts have been led. . . . . A discretion is very properly, as it is very necessarily, confided to the orphans' court. Each case must, in some measure, depend on its own particular circumstances. A convenient time for one would for another be very inconvenient. The time, reasonable according to the situ ation of one estate, would in another be very unreasonable." So the court, speaking of this topic, in Ferguson v. Scott, 49 Miss. 500-502, expressed itself as follows, through Simrall, J.: "The policy of the statute is, that there shall be a speedy administration of an estate, by payment of creditors, and turning over the surplus to the distributees. To enable the administrator to perform the first duty, the law charges the real estate, as well as the personal, with the debts, and deducting the exemptions, gives authority to the ad minstrator to apply the lands whenever he shall discover the personal property insufficient. An examination of the authorities will show that no definite rule can be laid down as to the time within which the creditor must initiate proceedings to subject the land, or rather cause it to be done by the administrator. It would be reasonable, and less mischievous in its conse quences, to allow a longer delay and indulgence where the heir or devisee continued the owner, than where the lands had been sold to an innocent purchaser; stale demands are not to be favored. If a creditor, with a knowledge of his rights, sits still, making no assertion of them until third persons act as if no such claim existed, and acquire interest in the property by purchase, for their protection it would not be unreasonable or unconscionable to deny relief against the property because of the staleness of the claim. A time is not prescribed by the statute within which the administrator must bring his petition to sell, but he must not delay until the heir and devisee may have reason to suppose that there are no valid debts, and when a purchaser may fairly be supposed to have advanced his money on the like confidence. The statute very clearly indicates that the sale must be made when the condition of the personal assets has satisfied the administrator of the necessity." Cases Showing What Delay will Constitute Laches. — In an early case, Chancellor Kent laid down the rigid rule that an unexplained delay of more than one year by the executor or administrator, after he had entered upon the execution of his trust, would justify the court in refusing to grant his applica tion to sell the real property of the decedent for the purpose of paying the latter's debts: Mooers v. White, 6 Johns. Ch. 360. In another case, it was held that a delay of seven years must be deemed an abandonment of the right to sell: Hatch v. Kelly, 63 N. H. 29.. A delay of twelve years is inexcusable:

Gunby v. Brown, 86 Mo. 253. So a delay of ten years, unexplained to the satisfaction of the court, is unreasonable, and discharges the lien of the creditors upon the real estate: Mays v. Rogers, 37 Ark. 155; so a delay of fourteen years: Jackson v. Robinson, 4 Wend. 436. A lapse of seventeen years before application made by the administrator will bar his right: Estate of Crosby, 55 Cal. 574; Estate of Godfrey, 4 Mich. 308; Brown v. Hanauer, 48 Ark. 277; and so will a delay of nineteen years: McCoy v. Morrow, 18 Ill. 519; 68 Am. Dec. 578; as will a delay of thirteen years: Wingerter v. Wingerter, 71 Cal. 105.

Laches Generally Based on Analogy of Statute of Limitations. — In many states, the reasonable time within which the right to sell the land of the decedent to pay his debts must be exercised is fixed by analogy to the statute of limitations. This rule was laid down at an early day by the supreme court of the United States in the case of Ricard v. Williams, 7 Wheat. 59-119, where Justice Story said: "But we do think it is a case clearly within the same equity as those which are governed by the statute of limitations, and that, by analogy to the cases where a limitation has been applied to other rights and equities not within the statute, the reasonable time within which the power should be exercised ought to be limited to the same period which regulates rights of entry. It would be strange, indeed, that when the estate of the heirs in the land, which is but a continuation of the estate of the intestate, is extinguished by the statute, the estate should still be considered as a subsisting estate of the intestate himself; that the administrator should possess a power over the property which the intestate could not possess if living; and that a lien created by operation of law should have a more permanent duration of efficacy than if created by the express act of the party. The convenience of mankind, the public policy of protecting innocent purchasers, and the repose of titles honestly acquired, require some limitation upon powers of this nature, and we know of none more just and equitable than this, that when the right of entry to the land is gone, or the estate is gone, by an adverse possession from those who held as heirs or devisees, the whole interest in the land, the power of the administrator to make sale of the land for the pay. ment of debts, is gone also." The same rule prevails in Connecticut: Sumner ▼. Child, 2 Conn. 607; Gregory v. Rhoden, 24 S. C. 90-99; and in Indiana: Nettleton v. Dixon, 2 Ind. 446, where the statute fixes the limit at fifteen years; Scherer v. Ingerman, 110 Ind. 428. In Illinois, no statute of limitations exists barring proceedings by administrators for the sale of lands to pay debts, and there the rule is well settled that the right to sell the real estate of a deceased person for such purpose will be barred after the lapse of seven years, by analogy to the statute of limitations relating to the lien of judgments and right of entry on lands, unless the delay is satisfactorily explained, and that in this respect each case must rest upon its own peculiar facts: McCoy v. Morrow, 18 Ill. 519; 68 Am. Dec. 578; Unknown Heirs v. Baker, 23 Ill. 430, (484); Rosenthal v. Renick, 44 Ill. 202; Myer v. McDougal, 47 Ill. 278; Moore v. Ellsworth, 51 Ill. 308; Bursen v. Goodspeed, 60 Ill. 277; Wolf v. Ogden, 66 Ill. 224; Bishop v. O'Conner, 69 Ill. 431; Furlong v. Riley, 103 Il. 628; McKean v. Vick, 108 Ill. 373. In Arkansas, the rule prevails that the right of a creditor to apply for a sale of the decedent's land for payment of a probate claim accrues upon the discharge of the administrator, and is barred unless his application is filed within ten years from that time: Brown v. Hanauer, 48 Ark. 277.

Laches may Create Equitable Estoppel in Less Time than the Statute of Limitations. There may be cases where the delay of the administrator or executor

in applying for an order to sell the lands of the decedent to pay his debts is "of such character and under such circumstances as will bar his right to prosecute his action in less time than that fixed by the statute of limitations. But it is only in cases where the laches are of such character and under such circumstances as to work an equitable estoppel ": Scherer v. Ingerman, 110 Ind. 428; Rosenthal v. Renick, 44 Ill. 202-205, where it is said that "in many cases a much shorter limitation might be properly applied to protect innocent purchasers against this secret lien, or even when the title is still in the heirs." So in Gregory v. Rhoden, 24 S. C. 90–99, McGowan, J., said: "It is true, this proceeding to make the land liable is equitable in its character, to which the statute of limitations, as such, has no proper application. But if the creditor has been guilty of laches in asserting his equity, the court may refuse him its aid, and bar the equitable remedy at a period short of that which would raise a presumption of payment.”

Laches by Analogy to Statute of Non-claim against Administrator. — In many of the states, statutes exist which require that all claims against an estate must be presented to the executor or administrator thereof within a certain time after he goes into office, or from the time of his appointment, and that if not so presented, such claims are barred; and a number of the states have adopted the rule, that when the claims of creditors are barred by such statute at the time when the executor or administrator files his appli cation to sell the land in payment of creditor's claim, then the application will be denied, unless the delay is satisfactorily explained and the claim is made within a reasonable time after the expiration of the period limited by such statute. This rule prevails in Iowa, where claims against the estate must be made within eighteen months from the time of the appointment of the administrator; and if he does not present his application to sell the land within that time, his application will be denied, unless the circumstances of the case would justify a court of equity in making an exception to the rule, in which case the application must be made within a reasonable time: McCrary v. Tasker, 41 Iowa, 255; Conger v. Cook, 56 Iowa, 117; Hadley v. Gregory, 57 Iowa, 157; Creswell v. Slack, 68 Iowa, 110. Under these decisions, a delay of from five to thirteen years has been held to be unreasonable and to amount to laches. So in Maine and Massachusetts, in consequence of the limitations of suits against administrators to four years from the time of accepting the trust, license to sell the decedent's land in payment of his debts will generally be refused, unless the application is made within the four years, or within a reasonable time thereafter, with a satisfactory explanation for the delay. In these states, the lapse of more than four years before application to sell will bar the right, in the absence of clear explanation for the delay: Nowell v. Nowell, 8 Me. 220; Nowell v. Bragdon, 14 Me. 320; Smith v. Dution, 16 Me. 308; In re Allen, 15 Mass. 58; Heath v. Wells, 5 Pick. 139; 16 Am. Dec. 383; Palmer v. Palmer, 13 Gray, 326. The statute now limits the time to two years in which claims may be enforced against an administrator, and an application to sell the decedent's land is generally denied after the lapse of that time in making the application: Aiken v. Morse, 104 Mass. 277; Tarbell v. Parker, 106 Mass. 347; Edmunds v. Rockwell, 125 Mass. 363. The same rule prevails in Mississippi, where the period of limitation against the administrator is one year after publication of notice to creditors: Ferguson v. Scott, 49 Miss. 500. In New Hampshire, claims against an estate are barred in three years after grant of administration, except in exceptional cases, unless suit is commenced or is pending at the expiration of the three years; and the court in Hull v. Woodman, 49 N. H. 295–304, said: "Therefore no