#### *Crawford’s Ex’or v. Patterson.

July Term, 1854,

Lewisburg.

Wills—Conditional Legacies—Case at Bar.—Testator by his will gave to his wife a plantation, slaves, stock, &c., for life. And he then added, “It is understood that my wife is to keep my children and raise them and give them sufficient schooling.” Held:

1. Same—Same—Effect of Acceptance.—The widow takes the bequest *cum onere,*and is bound to provide for the support and education of the children in a manner suited to her circumstances.

2. Same—Same—Performance of Condition Excused —Case at Bar,—But if one of the children accepts the invitation of a relation to visit her, and remains with her for years, the widow of the testator being willing to keep the child with her and provide for her, the widow is not liable for the expenses of the child for hoard, clothing or education; and this though the relation with whom the child lives is a married woman, and her husband at the end of the time claims compensation.

3. Same—Same—Same—Same.—The executors of the testator having paid the accounts out of the estate of the child in their hands and upon her marriage her husband having given a receipt to the executors for the amount, he and his wife cannot recover the amount from the widow.

4. Commissioner’s Report—Exceptions—Laches.*—A hill is filed by the husband and his wife against the executors and widow for a settlement of their administration accounts, and to recover from the widow the amount of these expenses; the account is ordered, and the commissioner allows the executors a credit for the amount they had paid for the wife, and reports a small balance in their favor. This report is returned in March 1824, and not excepted to; and the case lies from that time until June 1847, when the executors and widow are dead. It is too late for the plaintiff to revive the suit, and ask to have the report recommitted and reformed.

In the year 1810 Robert Crawford of Augusta county, departed this life, having first made his will, which was duly admitted to probat; and John and William Poage qualified as his executors. By his will he gave to his wife the negroes and all other property which had been hers before their marriage; and he *gave to her during her life, the plantation whereon he lived, two negroes, stock, plantation utensils and household furniture: And then added, “It is understood that my wife is to keep my children and raise them, and give them sufficient schooling.” The balance of his estate he directed to be sold and divided among eight of his children.

At the time of Crawford’s death, one of his children had received his share of his father’s estate, and another was married; and the other seven lived at home, their ages ranging from four to seventeen years. The property thus left to Mrs. Crawford, it was estimated, would have rented for between three and four hundred dollars.

About the year 1813 Jane, one of the children of Robert Crawford by a former wife, being about thirteen years old, went on a visit to the house of James Bell, whose wife was her aunt; and she remained there three years. She then lived with her uncle James Craig for a year; and then married John C. Patterson. For her expenses of clothing and schooling, and some advancements of money, James Bell presented to the executors of Robert Crawford an account for one hundred and fifty-one pounds nine shillings and a penny, which was paid by the executors; and after her marriage, Patterson in August 1818 executed to them a receipt for this sum as in part of her proportion of her father’s estate. In September of the same year the executors paid him in money one thousand one hundred and forty-six dollars and fifty cents, on account of her interest in said estate.

In September 1821 John C. Patterson and his wife instituted a suit in the late Staunton chancery court against the executors, Mrs. Crawford and the other residuary leg*193alees; and in their bill, after setting out the provisions of the will of Robert Crawford, they charged that the executors had received into their *hands a considerable estate which they had sold ; and that they had made no settlement of their account or distribution of the estate which had come to their hands. They further charged that the female plaintiff had lived with her step mother only a part of the time between her father’s death and her own marriage, and had not received that support and education provided for by the will. On the contrary, the executor John Poage had raised an account against her of one hundred and fifty-one pounds nine shillings and a penny, embracing nothing but those expenditures which her step mother was bound by the will to have defrayed, and that shortly after her marriage he had presented the account to Patterson and obtained his receipt therefor as a part of the estate to which she was entitled under the will of her father. And they file the account marked B. They allege that they were then ignorant of the propriety of these charges; but had since been advised that they were not bound to pay the account; the whole of it being justly chargeable to the widow. The prayer of the bill is for a settlement of the accounts of the executors; that the receipt aforesaid may be canceled and recalled, or that the widow may be compelled to pay the amount thereof with interest to the plaintiffs; that they *may*have a decree for so much of said estate as they are entitled to ; and for general relief.

The executors answered the bill, admitting the sale of the property by them, stating that John Poage was the acting executor, and that he had paid out from time to time, to such of the devisees as were of age, as much as he conceived it would be prudent to pay until a settlement of the estate could be had. That they were always willing to make this settlement, but it was not until about the commencement of this suit that guardians had been appointed for all the infants; and that they were then willing to settle their accounts.

*John Poage stated that he advanced the money charged in the account exhibited with the bill, under the belief that it was in discharge of the interest of the female plaintiff in her father’s estate; and under this belief he required and obtained the receipt from her husband.

Mrs. Crawford alleged that she had strictly complied with the provisions of the will in favor of the female plaintiff as long as she lived with her, which was until she was between fourteen and fifteen years of age. That she then left the defendant’s house, and went to live with her aunt Mrs. Bell, at Mrs. Bell’s solicitation, who proposed to take her, as defendant believed through friendship, to do more for her than the defendant would have in her power to do. That defendant consented, believing it would be of advantage to the plaintiff, and not from any unwillingness in herself to comply with the provisions of the will aforesaid. And she insisted that the moneys expended whilst at Mrs. Bell’s could not be considered as embraced by the provisions of the will; but was properly chargeable against plaintiff’s interest in the estate.

In June 1823 the death of the plaintiff John C. Patterson was suggested, and on the • motion of the surviving plaintiff, it was ordered that the executors of Robert Crawford do render an account of their administration before a commissioner of the court. In March 1824 this commissioner filed his report, in which he credited the executors in their account with the plaintiff, with the amount they had paid; and she was brought in debt thirty-eight dollars and thirtj' cents. Some of the other children were over paid, and there were balances due to others.

After the return of this report the cause slept, without a step being taken therein, until June 1847, when the death of John Poage and Sarah Crawford were suggested, and it was ordered to be revived in the '*names of Poage’s executors and of Silas Henton as executor of Sarah Crawford. The death of several of the legatees of Robert Crawford was also suggested, and the suit was revived in the names of their personal representatives; and then the record states that by consent it is ordered that the report of Commissioner Clarke theretofore made in the cause be recommitted to Commissioner Hendren, who is required to consider and modify the same, and to report specially to the court any matter, &c.

In October following Commissioner Hendren returned his report, in which he disallowed the credits to the executors for moneys paid to Bell, to the amount of one hundred and thirteen pounds eleven shillings, on the ground that it was money expended for necessaries during her infancy, and therefore properly chargeable to the widow. And he reported a balance due to the plaintiff of four hundred and fifty-five dollars and ninety-nine cents, with interest from June the 30th, 1821. This was the only account stated by the commissioner. The cause came on to be heard upon this report in August 1848, when the court made a decree directings Henton, the executor of Mrs. Crawford, to pay to the plaintiff, out of the assets of his testatrix, the amount reported by the commissioner; with liberty to the plaintiff, if this decree should be unavailing, to apply for a decree against the executors of Robert Crawford.

Soon after this decree was pronounced Henton presented a petition to the court, in which he stated that the cause had been revived without his knowledge or consent, and that the decree had been made without his having had an opportunity to make his defence; and he verily believed he should be able to show that it was erroneous. The court accordingly set aside the decree; and the cause was recommitted to Commissioner *194Hendren, who was directed to state the accounts ^between the parties according to his own view of what was equitable: And Henton was allowed to file his answer. In his answer, after stating the proceedings in the cause up to the report of Commissioner Clarke, he alleged that Chancellor Taylor considered the cause, and filed a memorandum in his own handwriting, among the papers, in the following words: ‘ ‘The report not being excepted to, is affirmed, and a decree to be entered in pursuance thereof;” but that no decree was entered on the order book. That thus the cause rested for more than twenty years, until John Poage the principal acting executor, who was cognizant of all the facts of the case, and Sarah Crawford the widow, had gone down to their graves in the firm conviction that this stale demand had been finally adjusted. He insisted upon the objections taken by the original defendants; upon the staleness of the demand, and upon the statute of limitations; upon the report of Clarke made when all the parties were alive, and on the acquiescence by the plaintiff for twenty-five years in that report; on the subsequent death of all the parties who were personally cognizant of the transactions; and upon the manifest injustice of compelling him, ignorant of all the matters, to enter into a controversy which seemed to have been carefully kept out of view during the time of his testatrix.

In September 1849 Commissioner Hendren made his second report, in which he charged Mrs. Crawford with the annual sum of forty dollars for five years, with interest commencing with the year 1814, and coming down to 1818; and making the balance due upon the account on the 1st of November 1849, six hundred and six dollars and sixty-six cents, of which two hundred and twenty-four dollars and sixty-nine cents was principal. The plaintiff excepted to the report, because it reduced the charges below the amount paid by the executors to Bell.

*The cause came on to be finally heard in November 1849, when the court overruled the plaintiff’s exceptions and confirmed the report; and decreed that Henton the executor of Mrs. Crawford should, out of the assets of his testatrix in his hands, pay to the plaintiff the amount reported by the commisisoner, with interest on the principal sum due, from the 1st of November 1849 until paid, and her costs. And liberty was reserved to the plaintiff to apply for a decree against the executors, if this decree should be unproductive. From this decree Mrs. Crawford’s executor applied to this court for an appeal, which was allowed.

Stuart, for the appellant.

Michie, for the appelee.

*

Chancery Practice—Laches.—See principal case cited in Foster v. Rison, 17 Gratt. 348; James River, etc., Co. v. Littlejohn, 18 Gratt. 80; Nelson v. Kownslar, 79 Va. 491; Hodgson v. Perkins, 84 Va. 712, 5 S. E. Rep. 710. See also, on this subject, *footnote*to Tazewell v. Whittle, 13 Gratt. 330; *foot-note*to Doggett v Helm, 17 Gratt. 96; *foot-note*to Bargamin v. Clarke, 20 Gratt. 544.

MONCURE, J.

The will of Robert Crawford imposed a charge on the estate given to his wife for the keeping, raising and schooling of his children. The estate was of the annual value of three or four hundred dollars; and seems to have been not more than adequate to the support of the family in a plain and comfortable manner. At the testator’s death the family consisted, besides the widow, of seven children, ranging from four to seventeen years of age. The widow having accepted the estate, took it of course cum onere; and was bound to-keep and raise the children, and give them sufficient schooling. Had she turned the appellee away from home when of tender years, and unable to provide for herself, and fathed to provide her with necessary board, clothes and schooling, she would have been liable, in equity at least, if not at law, for the value of such necessaries to any person who might furnish or pay for them. But she did not turn the appellee away. She kept her until she was thirteen years of age, when the appellee went to live with her aunt' Mrs. Bell, by the *latter’s invitation, and continued to live there for three or four years, and she then lived with her aunt Mrs. Craig for a year or more until her marriage. The widow, as she alleges in her answer, would have continued to keep the appellee according to the terms of the will; but she believed, and was well warranted in believing, that it would be for the advantage of the appellee to live with her aunt; and that she would be better provided for there than at home, and free of charge. The account which was the cause of this suit, being exhibit B filed with the bill, is for cash paid by the executor John Poage to and for the appellee while she lived with Mrs. Bell and Mrs. Craig; a large part of it having been paid to James Bell the husband of the former. It was not created at the instance of the widow, or on her credit, and she never assumed its payment. It does not appear to have been ever demanded of her, or that she was ever informed of its existence, until the institution of this suit. She was therefore never liable for the amount of the account or any part of it, at law or in equity, either by reason of the charge created by the will of her husband, or by any contract, express or implied. The case, in principle, is very much like that of Urmston v. Newcomen, 4 Adol. & Ell. 899, 31 Eng. C. L. R. 222. There, a grand mother offered to a father to take care of his child without putting him to any expense ; upon which he gave up the child to her. Afterwards the grand mother gave up the child to the mother, who was living apart from the father; and afterwards the child, to escape cruel treatment, returned to the grand mother, who maintained it thenceforwai'd. In the argument of the case, (which was an action of assumpsit brought by the grand mother against the father to recover the expense of maintenance after the return of the child,) the general question was raised, Whether a father, if he desert his child, be not liable in assumpsit *to any one who provides food and clothing for it? The judges declined giving an opinion upon the general question, thinking that *195it did not arise in the case. But they all concurred in deciding that the father, who had no notice of the child’s quitting the grand mother at all, or of the cruelty, was not liable to her for the maintenance, in as much as the facts did not show any desertion of the child by the father, and negatived a contract between him and the grand mother. '1'hey also decided that it made no difference that the grand mother, when she made the original undertaking, was a married woman; the ground of ihe decision being not that she had made a valid contract, but that the circumstances negatived desertion; and that therefore the question as to the implied liability did not arise.

The widow, in this case, not being liable originally for the account or any part of it, cannot be rendered liable to the executor John Poage in consequence of its payment by him; nor to the appellee in consequence of its payment by her husband to the said executor; neither of such payments having been made at the request of the widow, express or implied.

But even if she were ever liable for this account, or any part of it, or any of the expenses of the appellee while she lived with her aunts, such liability had ceased to exist in June 1847, when the suit was revived against the appellant as executor. The widow answered the bill in June 1822, stating the facts, and denying her liability. In June 1823 an order was made for the settlement of the account of the executors of Robert Crawford. In March 1824 the commissioner's report was returned, showing a balance due by the plaintiffs Patterson and wife to the executors on the 30th of June 1821, of thirty-eight dollars and thirty and seven-eighil cents, after charging the former with the amount of the said account marked exhibit B, which charge the commissioner stated that *he conceived to be justified by the answers of the executors and of the widow. There was no exception to this report. In May 1824, the cause was set for hearing: And no further order was taken in it until June 1847; when the widow, the acting executor, and several of the other parties having died, the cause was revived and proceeded in to a. final decree, which was rendered in November 1849. I think that the bill should have been dismissed as to the appellant, not only on the grounds of defence relied on in the answer of the widow, but also on the additional grounds relied on in the answer of the appellant her executor, filed in December 1848, to wit, the staleness of the demand and the statute of limitations, and the acquiescence of the appellee in the report ox the commissioner for more than twenty years, and until after the death of all the parties who were personally cognizant of the transactions. The death of the plaintiff John C. Patterson was suggested in June 1823, and the suit was thereafter prosecuted in the name of his surviving wife the appellee, who has ever since been free from legal disability. Her extraordinary laches in the prosecution of the suit has not been sufficiently accounted for. The only excuse relied on is furnished by a statement made in the answer of the appellant, that in consequence of a paralysis with which Chancellor Brown was afflicted about the time the commissioner made his report, and which in a great measure disabled hint from attending to business, no action was taken by the court on the report; and that Chancellor Taylor, who succeeded Chancellor Brown in 1826, was. for some years before his transfer to the Boletourt circuit, almost incapable, from indisposition, of attending to his official duties. But this excuse accounts for comparatively a small portion of the long lapse of time between the return of the report and the revival of the suit, and is wholly insufficient. *The fair presumption from the record is that all the parties acquiesced in the report, and did noL choose to prosecute the case any farther; especially the appellee, who appeared by the report to be a debtor. This presumption is confirmed by the fact, also stated in the answer of the appellant and admitted to be true by the counsel for the appellee, that after Chancellor Taylor came into office, but at what precise period does not appear, he filed in the papers a memorándum in the following words: “The report not being excepted to is affirmed, and a decree to be entered in pursuance thereof.” Though such a decree was never actually entered, yet the rights of the parties seem to have been considered as settled by the report, sanctioned as it was by the chancellor. The further prosecution of the suit having been delayed for twenty-three years, and until after the death of the widow and of the acting executor, who were acquainted with the transactions, it was too late then to revive it against their representatives, who were ignorant of them, and had not the means of making a proper defence. The case falls within the principle of the cases of Hercy v. Dinwoody, 2 Ves. jr. 87, and Hayes v. Goode, 7 Leigh 452; that in a court of equity it is not only required that claims should be brought forward in a reasonable time, but also that they shall be prosecuted with reasonable diligence.

I think the bill should have been dismissed, not only as to the appellant, but as to the other defendants also; and on the principle of the cases just cited. The executors of Robert Crawford had certainly no right as such to make the payments charged in exhibit B; and John C. Patterson was not bound to have given them credit for the amount in the settlement of his wife’s portion of their testator’s estate. He did, however, give them a receipt therefor as so much of the said portion. Whether the receipt was given under *such mistake of law or fact, or whether the relations between them were such as to have entitled him to set aside the transaction if due diligence had been used in the prosecution of the suit, *196are questions which it is unnecessary to decide.

That the suit was not prosecuted with due diligence, has already been sufficiently shown. It may be said that none of the defendants have appealed from the decree except the appellant. But I think his appeal brings up the whole case; on the ground that the reversal of the decree and dismission of the bill as to him would, directly or incidentally, disturb the rights of the other defendants as settled by the decree. See Dickenson v. Davis, 2 Leigh 401, and the opinion of Stanard, J., in Powell’s ex’ors v. White, 11 Leigh 309, 317. The decree was, primarily, against the appellant; but liberty was reserved to the appellee, if the decree against the appellant should prove unavailing, to apply for further relief against the executors of Robert Crawford, or any other person liable in the premises, either primarily or eventually. The executors, if they could appeal from such a decree, may not have thought it necessary to do so; as it was primarily against the appellant, and would probably have been effectual but for his appeal. The reversal of the decree, and dismission of the bill as to him, therefore, would materially disturb their rights as settled by the decree, if in fact it settled anything as to them. But the reservation is a mere incident of the decree, and the reversal of the decree would leave nothing to sustain the incidental reservation. The same may be said of the liberty reserved to the other residuary legatees of Robert Crawford to apply for decrees upon the report, although the *court*was *of opinion, and*rightly *so,*that they had been satisfied. Patterson and wife were the only plaintiffs in the suit, and it is obvious they never would have brought it but for the purpose *of recovering the amount of the account for which he had given a receipt to the executors. None of the other residuary legatees have ever complained of the executors, or asked for any decree against them. The report of the commissioner returned in 1824, showed that payments had been made by the executors to all of them, in regard to ' some exceeding, and to others falling short of, their respective portions of the estate. After the return of that report the executors proceeded to settle with the legatees accordingly; and receipts in full of several of the balances have actually been filed in the papers of the suit. In consideration of all the circumstances, and especially of the great lapse of time, I think no such reservation should have been made in favor of the other residuary legatees.

I am therefore of opinion that the decree should be reversed, and the bill dismissed; with costs to the appellant, both in this court and the Circuit court.

The other judges concurred in the opinion of Moncure, J.

Decree reversed.