#### *Carr’s Adm’r and Legatees v. Chapman’s Legatees.

March, 1834,

Richmond.

(Absent Tucker, P„ and Brockenbrough, J.*)

Chancery Practice — Administration Account — Lapse of Time.† — Bill by the legatees of A. against the ex’or and legatees of B. who was ex’or of A. for an account of B.’s administration of A.’s estate, — B.’s ex’or being himself one of A.’s legatees, and so a party in interest with plaintiffs; it appears, that no account of B.’s administration of A.’s estate has ever in fact been settled; but this bill is filed 28 years after B.’s death, and from 12 to 20 years after .the youngest of plaintiffs attained to full age, and the accounts called for would involve very ancient and complicated transactions: Held, *71the great lapse of lime is a sufficient objection to the relief prayed by the bill against the representatives of the first ex’or; especially, under circumstances, shewing that nothing was probably due, and that, from loss of papers and evidence, the accounts cannot be now fairly settled.

This was an appeal from a decree of the superiour court of chancery of Fredericksburg.

The bill was exhibited, in April 1818, by Charles Chapman, James Thornton, and Thomas Thornton administrator of Carr Chapman deceased, children and legatees of Thomas Chapman the elder deceased, against Thomas Chapman the younger, in his own right and as executor of William Carr deceased, who was the surviving partner and the executor of Thomas Chapman the elder, and Susanna Guionette relict of the same Thomas Chapman the elder: and the object of the suit was, to have a settlement of certain partnership transactions between T. Chapman the elder and William Carr in their lifetime, and of the accounts of Carr’s administration, during-his life, of the estate of T. Chapman the elder, and of the accounts of T. Chapman the younger, as executor of Carr the surviving partner, and as executor of T. Chapman the elder, after the death of Carr the immediate executor, — and a decree for whatever should be found due to the plaintiffs, as legatees of T. Chapman the elder, and as assignees of their mother Mrs. Guionette, *who had assigned to the plaintiffs shortly before the suit was brought all her interest in the claim.

The defendant T. Chapman the younger, in his answer, admitted that there had never been any settlement of the accounts; but he insisted, that there was nothing due to the plaintiffs, though he professed his willingness to enter into a settlement, and to produce the books. The circumstances of the case, so far as they effect the point on which the cause was decided in this court, were as follows:

In the year 1765, T. Chapman the elder and William Carr entered into a mercantile partnership, which continued, with some changes of members and some interruptions of its business, until 1782. During this time, two other persons had been successively admitted into the partnership, and had gone out, without otherwise affecting it than by temporary changes in the name of the firm; the original partners, Chapman and Carr, abiding in it from first to last, settling with their temporary partners as they went out, paying them their shares, and transferring the balances from one firm to the other, in the order of their succession. In 1782, Chapman and Carr were equally and alone concerned; and having been successful in trade, thejr, in that year, came to a settlement of their accounts, and dissolved their partnership. Carr was found, on that settlement, a creditor of the partnership to a large amount; and debts due the partnership to an equivalent amount, were transferred to him, in satisfaction of the balance due him; and, each partner being thenceforth engaged in a separate business, each undertook to] collect, as they could, the remaining out- ] standing debts due the partnership, and to account with the other for his collections. A further settlement was made *between*the partners in December 1783, which was entered on the books in the handwriting of Chapman ; but the partnership accounts were never finally settled; and each partner continued his collections during the remainder of his life.

Chapman died in March 1785 ; and by his will, after making some provision for his wife, and some specific bequests, he devised and bequeathed the residue of his estate *to Thomas Chapman the younger, his natural son, and his three legitimate children, Charles, Carr, and Jane Chapman, all then infants;_and appointed his former partner, Carr, his executor. Carr took probat of the will, and proceeded in the execution of his office, receiving the profits of the testator’s real and administering his personal estate, and collecting also the outstanding debts due Carr & Chapman, till his own death in 1790. Carr had never returned any inventory of his testator Chapman’s estate (though an inventory made before his death, was returned afterwards), and never settled his accounts of administration, or his accounts as surviving partner of his testator. Carr left a will, of which Simon Luttrell and Thomas Chapman the younger, therein named executors, took probat in February 1791.

Some years before Carr’s death, namely, in December 1785, an order had been made by the county court of Prince William, directing a division of the slaves of his testator T. Chapman’s estate, among his legatees; and in January 1790, shortly before his death, at Carr’s instance, another order had been made by the same court, appointing commissioners to settle his accounts of administration of Chapman’s estate; but neither of these orders had been acted on. And the couniy court, at February term 1791, after Carr’s death, made another order, appointing commissioners to settle the accounts of Carr’s administration of his testator Chapman’s estate; upon which the commissioners made report, at May term 1792, “that from the complication of the accounts, they could make no settlement.”

Mrs. Chapman, the widow of the testator T. Chapman the elder, had renounced the provision made for her by his will. In June 1785, she was appointed guardian of her infant children, Charles, Carr, and Jane Chapman; and, not long afterwards, she married a second husband, named Guionette.

The county court of Prince William, at its November term 1792, in a friendly suit in chancery between the parties, made an order appointing commissioners to assign to *Mrs. Guionette her dower and thirds of the estate of T. Chapman the elder, her first husband, and to divide the residue among his devisees and legatees. The commissioners reported the assignment and division by them made in October 1793; and, at November term following, a final decree was made confirming the report. The legitimate children of T. Chapman the elder, were, all three, *72still minors,' bat none of them after their attainment to full age, made any complaint of, or sought to disturb, this decree.

T. Chapman the younger survived Luttrell his co-executor of Carr, and proceeded alone in the execution of his office (it appeared, indeed, that he had been the only acting executor from the first), collecting the unadministered funds of the first testator T. Chapman the elder, and the outstanding debts of the partnership of Carr & Chapman, of which last some were collected by him as late as the year 1811. He never settled any account of the administration of the assets of Chapman the elder. But in 1806, he made a partial settlement of his accounts of administration of the estate of his immediate testator. Carr, before a commissioner of the county court of Prince William ; in which accounts, his collections of outstanding debts due the partnership of Carr & Chapman, were carried to the credit of Carr’s estate. This settlement, ratified by two of Carr’s legatees, was returned to the county court, approved and recorded. But no final settlement having been made of his accounts of administration' as executor of Carr, the legatees of Carr in 1813, brought suit against him in the superiour court of chancery of Fredericksburg, to compel a final settlement of those accounts. In May 1817, the court referred the accounts to a commissioner for settlement; who, in April 1821, made a report, shewing a balance of above 20,000 dollars, due from the executor to Carr’s estate; that balance consisting, in part, of the executor’s collections of outstanding debts due the partnership of Carr & Chapman.

It was certain, that the accounts of the administration of the estate of T. Chapman the elder, either by his immediate executor Carr ifi his lifetime, or by T. Chapman the *younger after Carr’s death, had never been settled at all. After the second marriage of the widow of T. Chapman the elder, the affairs of his infant children and legatees were so mismanaged, that the county court revoked her appointment as their guardian, and appointed Charles Ewell their guardian. Ewell (as he deposed) made inquiry of T. Chapman the younger, whether Carr’s estate was not indebted to his wards? Chapman answered, that he did not believe any thing was due to them, but that when a suit should be brought, he should be willing to account, and that any one might inspect the books; and he did shew some of the books to Ewell, who looked into them; but, though he thought there was money due his wards, he did not demand a settlement, or bring a suit to compel one, because he had no funds to bear the expenses of such a suit. And Ewell deposed, that when his wards attained full age, they were poor, and none of them were able, till very recently, to bear the expenses of a suit, and, indeed, none of the plaintiffs but Charles Chapman had means now for the prosecution of this suit.

It appeared, that the plaintiff Charles Chapman attained to full age, about the year 1796; and that he had purchased the rights of the other plaintiffs.

It also appeared, that T. Chapman the younger, who was himself a legatee of T. Chapman the elder, as well as the executor of Carr, had better opportunities than any other person to understand the state of the accounts, and was an accomplished accountant.

Such was the state of the case, on the original bill.

In September 1819, leave was given to the plaintiffs to amend the bill, and make the legatees of Carr parties defendants; and the cause coming on for hearing at the same time, on the original bill, as to the defendant T. Chapman the younger, an order was made, by consent of parties, directing him to render accounts, before a commissioner of the court, of his testator Carr’s administration of the estate of Chapman the elder, and of the partnership transactions of Carr & Chapman, stating what moneys or effects of the *partnership came to Carr’s hands after the affairs of the partnership were under his management. But it was agreed, that this reference of the accounts should be without prejudice to any defence that should be made by the new defendants, the legatees of Carr; and that the propriety of ordering such accounts, as a question of law, should be left open for t,he judgment of the chancellor.

The plaintiffs filed their amended bill, suggesting, that as the defendant Chapman, the executor of Carr, was himself a legatee of Chapman the elder, and might thus be equally interested with the plaintiffs in the recovery sought by them, it would be proper that Carr’s legatees should be made parties defendants, in order that they might defend their own interests, — -and praying that they should be made parties accordingly.

The legatees of Carr (who were his only surviving child, and his grandchildren, two of whom were infants at the time they were made parties) in their answer, relied on the statute of limitations as a bar to the relief prayed; and if the statute was not a bar, thej7 yet insisted, that the great length of time which had elapsed, and which rendered it impossible now tp adjust the accounts, was a sufficient objection thereto. They relied also, on the circumstance of T. Chapman the younger being interested with the plaintiffs as a co-legatee of T. Chapman the elder, representing the estate of that testator as well as the estate of Carr, and being the only person acquainted with the transactions, and having competent information to do justice to the estate of the latter, while it was his interest to swell the amount due the estate of the former, — and they referred to the proceedings in the county court in 1792-3, for the division of the estate of T. Chapman the elder, — as objections to the relief prayed by the bill.

Pending the suit, the power of the defendant T. Chapman as executor of Carr, was revoked, and administration de bonis non of Carr’s estate was granted to John Spence, and he was made a party defendant.

^The accounts were taken by the commissioner, under the interlocutory order of September 1819, upon due no*73tice, however, to the new parties, the legatees and administrator de bonis non •of Carr; and the commissioner made a report, shewing a large balance due to the plaintiffs. Numerous exceptions were taken to the report by both parties, and a very long controversy ensued.

The only additional circumstances deemed by this court material to the point on which it decided the cause, that appeared in the report, or were shewn after it was returned, were, that the accounts were extremely intricate and complex; that of the books and papers relating to them, some were lost and others incomplete and dilapidated ; that hardly any explanations could be obtained from parol evidence on disputed items, owing to the death or the forgetfulness of all the witnesses likely to have opportunities to acquire knowledge of them; and that the taking of the accounts was extremely laborious and expensive, having occupied two years time before the commissioner, and cost an expense of 1800 dollars for his fees.

The chancellor, after sustaining many of the exceptions of both parties to the commissioner’s first report, and overruling others, and having the report reformed according to his instructions, at length, on a final hearing, decreed a sum exceeding 6200 dollars to the plaintiffs to be paid them by Spence, the administrator de bonis non of Carr, out of the assets of that testator’s estate in his hands. And from this decree, the administrator and legatees of Carr appealed to this court.

The cause was argued here, by Harrison and Stanard for the appellants, and Johnson and Leigh for the appellees,

upon a preliminary objection taken by the appellants’ counsel to the decree; namely, that under the circumstances of the case, as alleged in the bill and the answers of Carr’s legatees, the court of chancery ought not, after such a lapse of time, to have directed any accounts at all; and, if the accounts were properly ordered, yet the facts disclosed by the x‘report, evinced such insuperable difficulties in the settlement of the accounts, and such an impossibility of rendering justice to the appellants, who were themselves necessarily uninformed as to every part of the transactions, while Carr’s executor who alone was informed of them and capable of defending their rights, was engaged as a party in interest against them, — ‘that the chancellor ought, upon the final hearing, to have dismissed the bill.

*

 This case was argued before Judge Brockenbrough was appointed as judge of this court.

†

Chancery Practice — Accounts—Lapse of Time. — It is a familiar doctrine of courts of equity that nothing can call forth these courts into activity but conscience, good faith and reasonable diligence. Where these are wanting the court is passive and does nothing. Thus, while the adjudicated cases do not fix any period as limiting the demand for an account, yet, if, from the delay which has taken place, it is manifest that no correct account can be rendered, that any conclusion to which the court cab arrive must at best be conjectural, and that the original transactions have become so obscured by time and the loss of evidence and the death of parties, as to render it difficult to do justice, the court will not relieve the plaintiff. If, under the circumstances of the case, it is too late to ascertain the merits of the controversy, the court will not interfere, whatever may have been the original justice of the claim. To this effect, the principal case was cited in Harrison v. Gibson, 23 Gratt. 212, 223 (relief refused because of delay of 14 years after right accrued), and *foot-note-,*Hayes v. Goode, *7*Leigh 481, 486,492 (suit brought against estate of executor 17 years after, his death; bill dismissed on account of laches and lapse of time); Spengler v. Snapp, 5 Leigh 490; *foot-note*to Atkinson v. Robinson, 9 Leigh 393 (bill dismissed because amount due complainant could only be ascertained by a settlement of accounts in reference to transactions more than 27 years old at commencement of suit); Caruthers v. Trustees, 12 Leigh 610, 618 (bill for account of lottery fund 13 years after death of chief manager; relief refused on account of staleness of transactions, the parties who could explain them being dead); Page v. Booth, 1 Rob. 166 (suit requiring investigation of transactions occurring 30 j'ears. previous to institution of suit: bill dismissed on account of lapse of time and obscurity of transactions); Hillis v. Hamilton, 10 Gratt. 304 (bill for administration account 26 years after death of intestate, 21 years after death of administrator; dismissed on account of staleness of claim): Doggett v. Helm, 17 Gratt. 96, 97 (bill in relation to land-warrants dismissed on the ground of laches and lapse of time, 17 years), and *foot-note-.*Foster v. Rison, 17 Gratt. 348 (laches in seeking a partnership account); *foot-note*to Bargamin v. Clarke, 20 Gratt. 544; *foot-note*to Carter v. McArtor, 28 Gratt. 357 (relief refused after lapse of 6 years); Stamper v. Garnett, 31 Gratt. 563 (account of administration of an estate refused 19-years after death of testator); Hatcher v. Hall, 77 Va. 577 (on account of long acquiescence, relief refused devisee 25 years after death of testator); Castleman v. Dorsey, 78 Va. 349 (bill for final settlement of administration 35 years after death of testator; relief denied); Morrison v. Householder, 79 Va. 631 (suitagainst guardian and sureties 19 years after termination of guardianship for amount due ward; transactions held not obscured by lapse of time); Perkins v. Lane, 82 Va. 62 (petition setting up claim against estate of commissioner dismissed on account of lapse of time); Gibboney v. Kent, 82 Va. 388, 4 S. E. Rep. 613 (suit to surcharge and falsify executorial transactions 18years after first settlement and 16 years after final settlement; relief denied on account of laches and lapse of time); Turner v. Dillard, 82 Va. 539 (suit for settlement of administration account 37 years after executor qualified; bill dismissed on account of lapse of time); Green v. Thompson, 84 Va. 396, 5 S. E. Rep. 507 (bill to surcharge and falsify *ex parte*settlement of administrator filed 25 years after death of administrator and 17 years after his accounts closed by subsequent administrators; lapse of time held a bar to suit); Griffin v. Birkhead, 84 Va. 617, 5 S. E. Rep. 685 (suit to annul conveyance made 51 years previously and 23 years after death of grantee; relief refused on account of lapse of time); Reed v. Dingess, 56 Fed. Rep. 176 (relief refused on account of laches and lapse of time).

See further, *foot-note*to Stamper v. Garnett, 31 Gratt. 563; monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6; monographic *note*on “Laches” appended, to Peers v. Barnett, 12 Gratt. 410.

Same — Limitations.—It is a principle uniformly recognized and acted upon by courts of equity that, where concurrent remedies exist to one of which a limitation is prescribed and to the other none, such court will apply the prescribed limitation to both. Werdenbaugh v. Reid, 20 W. Va. 598, citing the principal case, and Brown v. Campbell, 33 Gratt. 402.

CARR, J.

The argument in this case, though on a preliminary question, was very elaborate, and calculated to give a full view to the whole subject. The great question discussed was, whether under the circumstances as disclosed by the bill and answers, particularly, the length of time, the case ought to have been sent to account; and even if it was not error to order an account, whether the bill ought not to have been dismissed on the return of the commissioner’s report? After a diligent and anxious examination of the authorities and the reasons applying to the case, I am of opinion, that considerations both of private justice and public convenience, forbid courts of equity entertaining bills of this kind.

In the case of Smith v. Clay, reported in a note to Deloraine v. Browne, 3 Bro. C. C. 639, lord Camden says, “A court of equity, which is never active in relief against conscience, or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court. Expedit reipublicas ut sit finis litium, is a maxim that has prevailed in this court in all times, -without the help of an act of parliament.” This case was decided in May 1767, and has ever since been considered a leading authority.

This is shewn by the frequency with which it *is referred to, and always in terms of high commendation. Thus, in Pickering v. Ld. Stamford, 2 Ves. jr. 282, (and I might cite many others) the master of the rolls, referring to lord Camden’s opinion in Smith v. Clay, says, “there is a great deal of sound doctrine laid down, with regard to parties neglecting to prosecute their rights, in a manner which very much distinguishes the decrees of that noble lord.” Lord Camden further lays it down, “that as often as parliament had limited the times of actions and remedies to a certain period in legal proceedings, the court of chancery adopted that rule, and applied it to similar cases in equity. Por when the legislature had fixed the time at law, it 'would have been preposterous for equity (which, by its own proper authority, always maintained a limitation) to countenance laches, beyond the period that law had been confined to by parliament.” Thus, the statute of limitations is as good a plea in equity as at law; and will bar a bill for an account (for example) whenever it would be a-bar to an action .at law on the same account. It is laid down, however, in many cases, that the statute cannot be used as a bar in matters of trust; yet this expression, though general, is by no means to be understood as comprehending all cases of trust. Every deposit is a trust: every one who receives money to be paid to another, or to be applied to a particular purpose, to which he fails to apply it, is a trustee, and may be sued either at law, for money had and received, or in equity as a trustee for a breach of trust; Scott v. Surman, Willes Rep. 404, 5. But to these, and various other cases of direct trust, the statute applies, because they may be the subject of a suit at law as well as in equity. “The trusts intended by courts of equity, not to be reached or affected by the statute of limitations, are” (as chancellor Kent well expresses it, in Kane v. Bloodgood, 7 Johns. Ch. Rep. 111), “those technical and continuing trusts, which are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of equity.,” But though to these the statute cannot be pleaded, it would be great mistake to conclude, that *74they are not affected by the presumptions, and public inconvenience, *arising from length of time. In Harmood v. Oglander, 6 Ves. 199, 217, the master of the rolls says, that “he should be very sorry to have it understood to be the rule of this court, that there is no limitation whatsoever to trust estates; and that, let the legal estate once get into a trustee, the cestui que trust may permit others to enjoy the property, and come to this court at any distance of time for an account.” It would be perfectly alarming. I do not consider executors and administrators such fiduciaries as come within the definition of strict technical trustees. Legacies, however, are thus far within the rule, that before the assent of the executor, there is no remedy for the recovery of them, but by bill in equity. The statute cannot be pleaded as a bar to them: yet equity, always averse to stale claims, will not “be called into activity” in aid of legatees, after great length of time; especially, if the original parties are all dead, and their representatives allege their inability to furnish the accounts. It was said, that this rule did not apply to residuary legatees; but I think it applies to them especially; for their claim always involves a settlement of the whole accounts of the administration. The case before us too, is still more complicated, for the bill demands, as mixed up with the executor’s accounts, the settlement of a long existing partnership, which had terminated forty years before the suit was brought. The cases against entertaining such antiquated claims, are numerous. In Lacón v. Briggs, 3 Atk. 105, there was a bill for an account; the statute was pleaded, but this was gotten over by the will of the defendant’s testator, which, creating a trust for the payment of his debts, had revived this. Another objection to the account was, the expensiveness of taking it, after such a length of time (seventeen years had elapsed), and also, that the executor could have no means of checking the plaintiff’s account: Lord Hardwicke said, “I am of opinion, that if I should decree an account to be taken in this case, I should make one of the worst precedents, that a court of equity can make, for disturbing the peace of families. ” In Bonney v. Ridgard, 1 Cox 145, A. devised his several estates to his wife *and three daughters, to be equally divided among them, and desired that the estates might be sold by his executors &c.; he left his wife and another executors; she alone proved the will; she married again, and with her husband, sold the land, in payment of a prior debt of his, to one having notice of the trust: the sale was in 1752; the youngest child came of age in 1764; the bill was filed by the children for an account, and to be let into their shares: the exact time of commencing the suit, is not stated, but the hearing was in 1784. Lord Kenyon considered the transaction one which would have been set aside, and relief given, if the bill had been filed in time; but upon the length of time which had elapsed, between the plaintiffs’ right accruing and their prosecuting it, .he refused relief. He says, “the testator died in 1748; the youngest child came of age in 1764; and though I admit the statute of limitations does not affect trusts, yet this court from a principle of convenience, has borrowed an analogy from that statute. In this case, I think the length of time ought to bar; and if the authority did not say so, I would make the precedent, for this very case shews the good policy of the rule. Here, the many persons through whose hands this property has passed, have relied upon the undisturbed possession, and have laid out considerable sums of money in the improvement of it upon that idea. It would be too much, at this length of time, to give the plaintiffs the relief required, when the accounts cannot be taken. If these plaintiffs had made their claims when they all came of age, it would have been very different; but upon the whole, weighing the convenience with the inconvenience, I think it right to say, that the length of time is a bar in this case.” I cite this case rather for the general principles, than for the particular circumstances ; for, though there was in it both fraud and breach of trust, it was decided principally on the ground of the former. The general gtound of presumptions from length of time, is also very clearly taken by lord Erskine, in Hillary v. Waller, 12 Ves. 265, 6, 7. He considers the doctrine as founded in reason, the nature and character of man, and the result of human experience: *“it resolves itself (he says) into this: that a man will naturally enjoy what belongs to him” —-“It has been said, you cannot presume, unless you believe. It is because there are no means of creating belief or disbelief, that such general presumptions are raised, upon subjects of which there is no record or written muniment. Therefore, upon the weakness and infirmity of all human tribunals, judging of matters of antiquity, instead of belief, which must be the foundation of the judgment upon a recent transaction, where the circumstances are incapable of forming any thing like belief, the legal presumption holds the place of particular and individual belief” — “Mankind, from the infirmity and necessity of their situation, must, for the preservation of their property and rights, have recourse to some general principle, to take the place of individual and specific belief; which can hold only as to matters within our own time.” Jones v. Turberville, 2 Ves. jr. 11, was the case of a bill filed to recover a legacy after forty years and more; and to rebut the presumption, the plaintiff proved that one legacy of ten guineas was not paid, and that an application had been made about thirteen years before, to one of the defendants, who admitted that she knew the legacy had not been paid: but the court dismissed the bill. Lord commissioner Lyre said, — “It is a presumption of fact, in legal proceedings before juries, that claims the most solemnly established upon the face of them, will be presumed to be satisfied after a certain length of time. Courts of equity would do very ill by not adopting that rule. So essential is it to general justice, that though the presumption has often happened to be against the truth of the fact, yet it is better for the ends of general justice, that the presumption should be made, and favoured, *75and not be easily rebutted, than to let in slight evidence of demands of this nature, from which infinite mischief and injustice might arise.” In the same case, Ashurst said, — “All statutes of limitation, and presumptions analogous to them, are beneficial to the subject. If a man is liable after such a length of time, he is liable for interest also, and that trebles the amount of the original demand. ’ ’ The case of Hercy v. *Dinwoody, 2 Ves. jr. 87, is also strong to shew the weight which is given in equity to the considerations of length of time, and public convenience. There, a bill was filed by creditors for an account; it was filed recently and answered ; it remained in court with but few further proceedings, and thirty-three years after, the executors being dead, the bill was revived against their representatives and devisees : the master of the rolls refused the account, and dismissed the bill. It was contended there, that the matter being in suit, and the defendants called on to account, they could not discharge themselves by a payment, or settlement in pais; and therefore, that this case was not open to the presumption applicable to others. The master of the rolls admitted this, but said —“Ror the reasons given in Deloraine v. Browne, 3 Bro. C. C. 633, independent of the question of satisfaction, but on account of the very neglect, and the mischief and disturbance that may arise to families, though the presumption of satisfaction is not so strong, yet the laches and neglect may be such as to make it matter of public policy, that the party guilty of it shall abide by the consequences.” Pickering v. Ld. Stamford, 2 Ves. jr. 272, 581, was a case very much canvassed; and, though under the very peculiar circumstances, the court did entertain the bill, there is no case in which we find the general law and practice of the court more clearly and strongly enforced. That was a case in which the testator made his executors trustees for charitable uses, directing them to lay out the residue of his personal estate (in certain townships) to and for such charitable uses, as they should think fit: the testator died in 1757; the acting executrix applied the interest and part of the principal of the residue, which was £7000. in the erection of a school, which was opened in 1765; part of the interest was applied in support of the school; and what was not so applied, or otherwise in execution of the will, was, from time to time, invested in stock. The bill was filed in 1792, by the representative of one of the next of kin, suggesting, that the greater part of the testator’s personal estate was lent on mortgage and other real securities, and that the bequest of *such part to charitable uses, was void by the statute of mortmain, and therefore resulted to the next of kin. Upon this ground the bill prayed an account &c. The time (thirty-five years) was strongly ob]ected: the master of the rolls shewed, by various remarks, that he felt the full force of the objection: he said, that about the time the will was made, it was a question, about which great lawyers differed, whether such bequests as this were within the statute of mortmain, and that though it was now clearly settled to be so, there was no ground for a fair presumption, that the plaintiffs being consuant of their rights, slept upon them, or meant to relinquish what he found himself obliged to say, upon the whole complexion of the case, they never knew they had a right to; Ibid. 585. He said, it was not desired that he should make the trustees pay back any money; that he would not have made them pay it back, if they had spent the whole; Ibid. 275. In another part of the opinion, Ibid. 584, he said, that “it might have happened, that the trustees taking possession of the personal estate, and not aware of the law, might, in the course of so many years, have conducted themselves so as not to be able to prove, of what the personal estate consisted at the death of the testator. They might have kept such accounts, that it would have been impossible to determine, whether the plaintiffs could have made any specific demand upon any part of the personal estate. If so, I should have dismissed the bill. If the executors had lost the accounts, I should not have punished them; for executors are not bound to keep accounts thirtj' years.” Again, Ibid. 280. “If a party, having knowledge of his rights, will sit still, and without asserting them, permit persons to act as if they did not exist, to acquire interests, and consider themselves as owners of the property, to which the other will not assert his claim, there is no reason, that I know of, why every presumption should not arise, as in the case of a bond” — ’“If this had been the case of a legacy, I should have been of opinion, that there was a bar, on the presumption of satisfaction.” Again, Ibid. 583. “It is a very sensible rule, that parties shall not, by neglecting to bring forward *their demands, put others to a state of inconvenience, subjecting them to insuperable difficulties. Against such a bill undoubtedly, the court ought to set its face” — “If, from the plaintiff’s lying by, it is impossible for the defendants to render the accounts he calls for, or it will subject them to great inconvenience, he must suffer ; or the court will oppose, what I think the best ground, public convenience.” I will not incumber this opinion further with english cases, except simply to refer to Gregory v. Gregory, Cooper’s Ch. Ca. 201, where the bill was to set aside a purchase of land, made by a trustee of the cestui que trusts, who were his brother’s children, he being in possession, and holding for them, under their grandfather’s will, till they should come of age; and this purchase being made, as it would appear, soon after they had attained to full age: the master of the rolls said, it was a clear case for relief, if the parties had come in time; but they had delayed eighteen years, and their bill was dismissed.

The principles thus drawn from the english cases, are fully supported, if not advanced a step, by the spirit of our own decisions, and of our legislation also. The case of Bolling v. Bolling, 5 Munf. 334; Coleman v. Lyne’s ex’or, 4 Rand. 454; Burwell’s ex’or v. Anderson adm’r &c., 3 Leigh 348, shew this. In the last case, the president, delivering the opinion of the court, *76says — “No one feels more strongly than I, the salutary influence upon the peace and repose of society, of the principle which forbids us to encourage stale claims, or to unravel long settled accounts. Nor is there any among all the subjects of controversy arising in courts of justice, to which this principle should be more liberally applied, than to that of executors’ accounts. No man’s éstate would be safe, if no lapse of time could be permitted to close the door forever against inquiry. No man could die in peace, who had ever been an executor, if he knew that when he should be gone, and the memory' of transactions lost, his representatives would be called to a new and rigorous scrutiny of matters buried in oblivion. No man would be executor under such circumstances; and thus, one of the charities of lifej the preservation and administration of dead men’s ^estates, would be committed altogether to careless officers of the taw, instead of being discharged with fidelity and zeal by some friend of the deceased.” That our legislation breathes the same spirit, the several laws passed for the protection of fiduciaries, clearly shew. I will advert to but one; the statute of 1826, Supp. to Rev. Code, ch. 200, p. 260,_ limiting to ten years, actions, bills in equity, suits and motions, against executors, administrators, guardians &c.

Having taken this view of the law (much more tedious than I could have wished) I shall notice, as briefly as possible, the leading facts of the case before us. The bill was filed in 1818. The defendant, Thomas Chapman, was the. natural son of Thomas Chapman the elder, and one of his legatees. The bill calls for a settlement of a partnership between Carr & Chapman, which began in 1765, and was dissolved in 1782. It demands an account of the executorship of William Carri which began in 1785, and ended by his death in 1790. It calls for an account from Thomas Chapman the younger, who, as executor of Carr, was also executor of Thomas Chapman the elder, and who, as an equal legatee with the plaintiffs under the will of their common father, was equally interested in any recovery that might be had from the estate of Carr. It was upon the ground of this interest in the executor, that the child and grandchildren of Carr were made defendants. The answer of Chapman offered no serious defence; he was willing to account; he referred to the books, and was willing to produce them, or as many of them as were in his possession. The other defendants strenuously objected to any account either of the partnership, or of the executorship of their ancestor: they said, that these accounts were of transactions too stale to be countenanced by equity; that they were totally ignorant of the whole subject, and unable to furnish any account; and that the only person now living who has any knowledge of the business was Thomas Chapman the younger, whose interest it was to swell as much as possible the debt claimed to be due from the estate of Carr. I think that the chancellor ought upon the coming in of these answers, *and the evidence then in the bause, to have refused the account, and dismissed the bill. The bill was filed thirty-five years after the dissolution of the partnership; thirty-two years after the death of the elder Chapman; and twenty-eight years after the death of Carr. Thomas Chapman the younger was the executor of Carr: he had been long in the business, was an accomplished accountant, and was, equally with the other children, interested in his father’s estate. Could their interests have been in better hands? Carr had got an order from the county court to settle his executorship, not long before his death ; but nothing was done under it. In 1791, Thomas Chapman, his executor, had this order renewed; but the commissioners reported, that from the complication of the accounts, they could make no settlement. This, it will be remarked, was twenty-seven years before this bill was filed. In November 1792, in a friendly suit, in which Thomas Chapman the younger, the widow of T. Chapman the elder, then again married, and her children, for whom she had sometime before been appointed guardian, were parties, — for a division of the estate of T. Chapman the elder, — an order of court was made appointing commissioners to make the division. They made a report of division, assigning to each his portion, and a final decree was entered accordingly. Of this decree no complaint has been made: the bill does not seek to disturb it, but seeks only for such residuary estate, as may arise from a settlement of the partnership and executorship. The exact ages of the children are not stated; but it seems a fair deduction from ' the record, that the plaintiff Charles Chapman, who is stated to have acquired, the- interests of the others, was of age in 1796, or thereabouts. By the will, the residuary portion of each was to be paid to him on his arrival at age. In 1796, then, this plaintiff was in interest and in duty bound to look after his portion. The records would inform him, that a fruitless attempt had been made to settle the executorship ; and that his guardian had received his slaves and other estate. His brother and co-legatee, and the executor, could tell him better than any body else, whether *any thing and how much was to be expected from a settlement. Can we doubt, that he applied to him, and received the same information which the executor had before given to Ewell, who was his guardian, who, in that character, applied to him, and to whom he said, that there was nothing due from Carr’s estate? Can we doubt, that he shewed the books to this brother, as he did to Ewell,' and gave him free permission to examine, and take extracts from them, as he says, in his answer, that he was always ready to do, to any of the legatees? and does not the information thus received, together with such light as he might get from the books, account, in the only rational way, for this plaintiff’s delay to sue, for twenty-one years after this? Can we imagine any motive which should induce Thomas Chapman the younger to deceive his brother in this matter? none earthly; but, on the contrary, the strong and controlling motive of self interest, would prompt him, if there was any debt due from Carr’s estate, to disclose the fact,- *77and to urge his brother to sue. If there had been any doubt felt as to the correctness of his information, that was the time for putting it to the test: the declaration that nothing was due, was a fair notice that a suit was the only mode of settlement left. Is it likely that twenty years after, when the witnesses were dead, some of the books lost, and the transactions forgotten, a commissioner could work out a more correct result, than Chapman could have come to, with the subject fresh, the whole familiar to him, and all the books before him? Chapman representing both estates, it was his right and his duty, as well as his interest, to retain in his hands as much money of Carr’s estate, as would discharge any debt, which it owed to the estate of T. Chapman the elder. Carr’s estate wps ample; large sums of money belonging to it passed through his executor’s hands: is it conceivable, that he would not pay himself and his brothers? Yet in 1806, he made a partial settlement and distribution of Carr’s estate, without making any charge of the kind, or retaining any part of the fund, for pay'ment of such debt. In 1813, Carr’s representatives sued him for a farther settlement of that estate, and the ^commissioner reported an account, shewing a balance against him of more than 20,000 dollars. Is it not singularly strange, that under such pressure, he should never have sought to avail himself of this claim of Chapman’s estate on Carr’s? When we take these facts in corroboration of the great lapse of time, and add the circumstance, that the defendants are grandchildren of Carr, alleging their utter ignorance, and inability to furnish an account, I think the conclusion clear, that no account should have been ordered. If any thing could strengthen this conclusion, it would be the report itself, taken under the order. In one of the cases in the former part of these remarks, it has been seen, that a strong ground of objection taken by the court to these stale transactions, is the expensiveness of the account. The one in the case before us was an immense work: the cost of it was about 1800 dollars; and I do not pretend to say, that the commissioner has overcharged, for it is said to have taken him two years pretty close labour.

I am of opinion that the decree must be reversed, and the bill dismissed.

CABELL, J. I am of the same opinion.

BROOKE, J.

I shall not state all the minute facts in this record, but shall advert to those only that are essential to the decision of the case. The bills of the plaintiffs claim to have an account of the transactions of the partnership of Carr 6 Chapman, which began in 1765, and closed in the year 1782, when the accounts of the partnership were settled by the parties, a large balance found due to Carr, and an equivalent amount of the outstanding debts assigned to him in payment of that balance. In December 1783, there was a further settlement, on which a balance was still found due to Carr. T. Chapman the elder died in 1785, having made his will, appointing Carr, his surviving partner, his executor, who administered his estate till his death in 1790. He appointed T. Chapman the younger his executor, with Simon Luttrell, who seems to have had little to do with *the administration, and died early, leaving T. Chapman the younger sole executor of Carr. So soon as Carr’s executors took probat of his will, an order was obtained to settle the accounts of Carr’s administration of the estate of T. Chapman the elder, comprehending of course, the accounts of the partnership of Carr *&*Chapman. And in May 1792, the commissioner reported, that they could not settle them owing to their complexity. Who then were the parties competent to call for a settlement of these accounts? The widow of T. Chapman the elder, who had married a man in needy circumstances, and was the appointed guardian of her children. T. Chapman the younger also was entitled to a portion of his father’s estate, and was interested in this settlement; yet so well satisfied were all the parties (for we can infer nothing else) that this settlement was abandoned, not as impossible at that time, but as fruitless, until the commencement of this suit in 1818, twenty-six years after the ground for this controversy was laid by the report of the commissioners appointed to settle these accounts in 1792, at which time many witnesses were alive who are now dead, and when too the whole of the books of the partnership were in existence. I do not think that there is any case, in which, after such a lapse of time, attended too by so many strong circumstances of gross negligence, and of abandonment of the claim, a court of equity' has listened to such a claim. Let us examine some of these circumstances. In 1793, a friendly suit was brought for the assignment of dowe'r and thirds to the widow of T. Chapman the elder, and for a division of his estate among his children. T. Chapman the younger was his executor, through Carr, the first executor, and the surviving partner of Carr & Chapman. How could the accounts of Carr, as executor of T. Chapman the elder, be settled by T. Chapman the younger, as executor of both, without bringing the accounts of the partnership under consideration? Those interested in the estate of T. Chapman the elder, if they believed there was any thing due his estate from the partnership, must have insisted on the settlement; and their failing to *insist on it, was a circumstance of gross negligence, or an abandonment,of the pretension, that there was any thing due from the partnership to the estate of Chapman. And there is ground appearing in this record, for their thinking that there was nothing due. T. Chapman the younger survived his co-executor Luttrell ; and in 1806, settled his accounts of' administration of Carr’s estate, on which a large balance was found against him, without his settingup any claim to a credit, on behalf of himself or the other parties interested in the estate of T. Chapman the elder. A suit was afterwards brought against him by Carr’s legatees; and it appeared, by a report made in that suit in 1817, that more than 20,000 dollars were due from him; yet, in that settlement of his. accounts, no claim was made by him in behalf of himself and others interested in T.. *78Chapman the elder’s estate. The present suit was brought in the following year, by the legatees of T. Chapman the elder, against T. Chapman the younger, their co-legatee and the executor of Carr, and against Carr’s legatees, and (the defendant T. Chapman, the executor, having been superseded as executor, pending the suit) against Carr’s administrator de bonis non. It is true, T. Chapman the elder left some infant children. When thejT came of age we know not; but his youngest must have been of age in 1806, he having died in 1785, and they were united in interest with those of full age, and had guardians; nor is it reasonable to suppose, that they were totally ignorant of their rights, at least as long as from 1806 to 1818. It is strongly to be inferred that the decree of 1817, in which T. Chapman the younger was found in debt to Carr’s estate more than 20,000 dollars, was the cause of this suit.

It was said, that the statute of limitations, though adopted by courts of equity, does not apply to a bill against executors or administrators; because they give bonds, to an action on which there is no limitation. That is so at law; but even there, the presumption of payment is admitted, upon lapse of time, against the bond; nor can I perceive how an executor or administrator can be considered to be more able, *after a great lapse of time, to settle his accounts, because he has given a bond. In the case before us, T. Chapman the executor, is, in that character, hardly more than a formal party: the surviving child and grandchildren of Carr are the substantial parties. Upon the property now in question, families have been provided for and reared; and the best uses of property in society will be defeated, if they are now to be deprived of it. In the case of Smith v. Clay, 3 Bro. C. C. 639, lord Camden has' laid down the principle, on which courts of equity act in such cases: he says, “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept on his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence ; where these are wanting, the court is passive and does nothing.” On these principles courts of equity, though they have adopted, are not tied down by, the statutes of limitations. A shorter lapse of time accompanied with gross negligence, and acts of abandonment, by those having an interest, and competent to assert their rights, will bring their case within the principles laid down by lord Camden. If the court saw, that it was called on to do injustice, it would not move, however strong, in point of original right, the claim might be.

It was also urged, that this is a case against a trustee.

' If a trust be created by the act of the parties, the possession of the trustee is the possession of cestui que trust, and no length of such possession will bar. But a trustee constituted by the law, as an executor or administrator, or a trustee by the decree of a court, does not stand in that relation: there is no confidence between the parties; their rights are adverse.

I could pursue this subject farther, and if authorities were wanted, they might be found in abundance. I think the decree must be reversed, and the bill dismissed.

Decree reversed.