#### *Todd and *Wife*v. Moore’s Adm’r &c.

November, 1829.

Executors and Administrators — Bill (or Account — Stale Demand — Dismissal*—Case at Bar. — Upon fl. fa. against M. adm’r of L. a female slave ofL.’s estate is taken and sold by sheriff in 1797, at which sale, M. the adm’r himself, is purchaser: in 1801, the adm’r settles his account of administration before county court commissioners, whereby it appears, that at a time of sheriff’s sale in 1797, he had no funds of L.’s estate, besides this slave, to satisfy the execution, and he accounts for the price of the slave: L’s daughter and sole distributee, while yet an infant, in 1810, marries T. who is soon after informed of every fact concerning *163the sale and purchase of the slave: the adm’r M. lives till 1822: and after his death T. and wife exhibit a bill against his representative, praying a settlement of M.’s administration account, in chancery, impeaching the sale and purchase of the slave in 1797, as irregular and illegal, and praying decree for the slave and her increase and for profits: Hkld, this bill was rightly dismissed by the chancellor. ,

This was a bill exhibited by Todd and wife against Avery the administrator of Moore, in the superiour court of chancery •of Richmond, setting forth, That Mrs. Todd was the only child of J. T. Lee, who died in 1795. That in the same year, administration of Lee’s estate was granted to Moore, by the county court of Prince George. That he returned an inventory and appraisement of his intestate’s chattels, but never settled his accounts of administration ; and that he was indebted to the estate. That he permitted the sheriff to sell a female slave, named Eve, under execution for a debt due from the estate, at a time when he was himself indebted to the estate, on his account of administration, to a greater amount than would have satisfied the execution; and purchased the slave himself at the sheriff’s sale, and continued, ever afterwards, to hold her and her increase now thirteen in number. The bill prayed, an account of Moore’s administration of Lee’s estate, and a decree for the balance which should appear due; that the sale of Eve should be set aside; that that .slave and her increase should be decreed to Todd and wife, and that an account should be taken of their profits, and the amount thereof also decreed to them.

*Avery answered, that his intestate Moore had early 'settled his accounts of administration of Lee’s estate, before commissioners of the county court of Prince George, and the account had been reported to the county court; but owing (as he believed) to the negligence of the clerk, it has never been recorded, and was now lost or mislaid. That his account was fair and just; and Moore had paid the balance to Mrs. Todd, or her guardian. That at the time of the sale of Eve, under execution, the administrator Moore had no other assets of his testator’s estate applicable to the debt; that the sale of Eve was therefore unavoidable; and that the purchase by Moore was perfectly fair, and the proceeds all accounted for.

Chancellor Taylor ordered Avery to render an account before a commissioner of the court, of his intestate Moore’s administration of Lee’s estate.

Avery appearing before the commissioner to render an account, produced an office copy of the account, which had been taken before the commissioners of the county court, and which was supposed to have been lost or mislaid in the clerk’s office of Prince George, but had been recently found on record there. This account had been audited and returned as early as the year 1801, and it fully sustained Avery’s answer. But the commissioner, by restating the account, and charging interest from the proper dates, (as he supposed) which were anterior to those from which the county commissioners had computed it, shewed, that, at the date of the sale of the slave Eve, there was a balance due from Moore the administrator, very nearly though not quite equal to the debts for which that slave was taken in execution and sold. The commissioner reported, that Moore had paid the guardian of Mrs. Todd, the full balance reported by the county commissioners.

The sheriff’s sale of the slave Eve, and Moore’s purchase of her, took place in 1797. There was nothing unfair in the sale itself. But, according to the depositions of two witnesses, Moore acknowledged at the time that he was ^indebted to his intestate’s estate, and said, that he permitted the sale, and made the purchase, to save the property for the infant distributee, Mrs. Todd, who was his niece; and that when she should attain to full age or marry, it would be delivered to her. She married Todd in 1810, while she was yet an infant; and Todd was very soon afterwards informed of every fact concerning Moore’s purchase of Eve and advised to bring a suit; but, though Moore lived till 1822, Todd and wife never asserted any claim against him in his lifetime: the bill in this case, was exhibited against his administrator, soon after his death, viz. in 1823:

The chancellor, upon the final hearing, dismissed the bill, with costs: and Todd and wife appealed to this court.

Spooner, for the appellants,

endeavoured to shew, from the state of the accounts, that Moore was indebted to his intestate Lee’s estate, in a balance sufficient to pay the debts for which the slave Eve was sold under execution in 1797, and ought to have paid those debts, and prevented the sale: and for that reason, if for no other, he ought to be regarded as a trustee of this property for the distributee. He was an administrator too, purchasing at a sheriff’s sale, property belonging to his intestate’s estate; and could not, any more than any other trustee, or in any other mode of sale, purchase the trust subject for his own benefit: in this view also, he ought to be regarded as a trustee for the distributee. Finally,- Moore himself understood the transaction in the same light, and declared that he purchased for the benefit of the distributee. His subsequent assertion of a right to hold the property for himself, was a breach of trust, and a fraud. No lapse of time could give sanction to such a right, or bar the just claims of the cestui que trust; especially, as she had been, all the time, under the disability first of infancy, and then of coverture. He cited Redwood v. Riddick, 4 Munf. 222; Hunter’s ex’ors v. Spotswood, 1 Wash. 145.

*Shands, for the appellee,

insisted, that the administration account, regularly audited and settled by the commissioners of the county court in 1801, ought not, at this late day, and under the circumstances of the case, to be opened; and that, if it were proper to open it, it was correctly stated: And this account shewed the perfect fairness of Moore’s conduct. He examined the evidence; and controverted the proof of Moore’s declaration that *164he purchased the slave Eve for the benefit of the distributee; but, it was in proof, that Todd was informed of the evidence now adduced of this declaration of Moore, and of every other fact of the transaction, soon after his marriage in 1810, and yet he never asserted this claim during the twelve years that Moore lived; a plain proof, that he himself had no confidence in its justice. To shew the impropriety of opening the accounts, he cited Hudson & al. v. Hudson’s ex’or, 3 Rand. 117. As to the purchase by the administrator himself, of the property of his intestate, fairly made, at a sheriff’s sale, at a time when there was no money in his hands to pay the debts for which such property was taken in execution ; he cited Anderson & al. v. Fox, 2 Hen. & Munf. 245, to shew that such purchase could not be impeached. And, surely, after the long acquiescence of the appellants in these transactions, and that with full knowledge of every fact on which they now rely; coming at this late day, into a court of equity, to assert a claim against Moore’s administrator, which they never ventured to assert against him in his lifetime; they could have no right to the relief they ask. See Sugd. law of Vend. ch. 14, *%*2, III., pp. 483, 4.*

*

Executors and Administrators — Bill for AccountLaches. — In Hillis v. Hamilton, 10 Gratt. 304, it is said by Samuels, J., adhering to the decisions of this court and approving of the reasons upon which they are founded in the cases of *Todd v. Moore,*1 *Leigh*457, and Carr v. Chapman, 5 Leigh 164. I am of opinion to reverse the decree and dismiss the bill because of the staleness of the demand asserted. If anything else were needed to j ustify this conclusion it would be founded in the presumption that the claimants’ demand has already been paid. See also, citing the principal case on this point Castleman v. Dorsey, *78 Va.*342. See monographic *note*on “Executors and Administrators” appended Rosser v. Depriest, 5 Gratt. 6.

CARR, J.,

recapitulated the facts, and said, he was of opinion, that the decree dismissing the bill was right. It is due to the quiet of families, and to justice, that the old settlements should be suffered to sleep in their graves, and not be dug up, to frighten and disturb the descendants of *those who were parties. Lee died in 1795. In the same year, Moore qualified as his administrator: and he lived till 1822. Mrs. Todd married in 1810; and in that year, her husband was told all the facts concerning the sale of Eve, and that he ought then to sue; yet this suit was not brought till late in 1823, thirteen years after, and after Moore the administrator had died. He could probably have explained many things which now have a bad appearance. The slave Eve was bought in 1797. Ever since that time, she and her increase have been at the risk of the purchaser: if all of them had died, his would have been the loss. He had them twenty-six years, before this suit was brought, and thirteen years after the present plaintiff knew the facts, and *ought to*have sued; all this time, he has been the insurer of their lives. And now it is asked, of equity, that he shall restore the slave and her thirteen children and pay hires for them. I am against the whole bill; and think (as lord Hardwicke said, in a case not stronger) that it would be setting the worst example, that could be set, for the disturbance of families, to encourage such attempts.

The other judges concurred, and the decree was affirmed.