#### Abraham Villines *et al. v.*Nathaniel Norfleet.

Although an executor cannot purchase at liis own sale, yet if he does, and there is no fraud, but he pays the purchase money for the use of the estate, and his accounts are settled and acquittances given by the legatees without the exercise of undue influence on his part, he cannot, after the lapse of twenty-nine years, be declared a trustee for the leg-atees of the slaves purchased by him.

The bill was filed in the year 1826 in Caswell. The plaintiffs charged that their father *Hezekiah VUlines*was a resident of Nansemond county, in the State of Virginia; that hy his will he left several specific legacies, and all the residue to his wife and three children, to-wit: the plaintiff *Mraham.*a son *Thomas*who was dead, and whose administrator was a party, and a daughter *Nancy,*and appointed his wife and the defendant executors, and died in the year 1784; that a large personal estate of the testator came to the hands of the executors ; that the widow also died eight years after the testator, having intermarried with one *Jones*who was also dead, when the assets came to the hands of the defendant alone; that the defendant at two several sales of the slaves of his testator made by himself, bought negroes *Edmund, Millij*and *Penny*at an under value; that at the death of the testator his children were infants of tender years, and upon their arrival at full age were entirely unacquainted with the situation of their father’s estate; that in the year 1789 the defendant, went to Europe and was absent until the year 1797, when upon his return ho became very anxious to settle his accounts as executor, and procured the plaintiff *Mraham,*then a minor, to be appointed guardian to the other children of •the testator, and by his influence procured three incorope-*168tent persons to be appointed by the County Court of Nan-scmond commissioners to settle his accounts *;*that by these means and from the confidence which the plaintiff *Abraham*had in him, the defendant procured a settlement of his accounts, and prevailed on the commissioners to sign it, and paid to the plaintiff *Abraham*a balance thereby appearing to be due, and took an acquittance therefor; that shortly after the settlement the defendant removed to the county of Person in this state, and prevailed upon the plaintiff *Abraham*to accompany him and bring with him his infant brother and sister, and for several years treated them with great *kindness;*that the plaintiffs and defendants had resided there ever *since;*that *Thomas*died in the year 1826, and that *Nancy.,*one of the plaintiffs, while an infant, intermarried with one *Mclñssack,*who died in 1818.

The plaintiffs then charged, that recently upon a visit to Nansemond, they had discovered that the defendant, in his account taken before the commissioners, had not charged himself with the sales of any negroes made by him. nor with the hire of the negroes during the time they remained in his hands, and in fact had not returned any account of sales, but had charged himself a gross sum of *£ 847*13 for sales of all kinds of property, and neither had he delivered to the plaintiff *Abraham*the slaves which he had purchased. The prayer was, that the defendant might be decreed to be a trustee for the plaintiffs for the negroes bought by him, and their increase, and that he might come to an account of his administration of the estate of their father, and pay them any balance which might be due.

The defendant, in his answer, relied upon the length of time which had elapsed since the settlement, and insisted that the sales had been fairly and properly made, and the account honestly stated: lie also averred that as to the hire of the slaves, he had no recollection of having received any, and believed that the slaves liad been kept by the mother of the plaintiffs for their support, for the first eight years after the death of the testator, lie admitted the purchase of three slaves, but insisted *169that tlie same was legal by the laws of Virginia, and at any rate that it had been confirmed by a subsequent settlement between him and the plaintiff *Abraham ;*copies of this settlement and of tiie receipts of the plaintiff *Abraham,*were filed with the answer; they were made on the 11th and 14th of December, 1797.

A good deal of testimony was filed which it is not necessary to state.

*Winston,*for the plaintiff.

*JV’asA*and *W. A. Graham,*for the defendant.

Ruetieí, Judge.

The bill was filed in 1826, and seeks a general account of the estate of the plaintiff’s father, of whom the defendant is surviving executor. And particularly it prays a division of several slaves and their increase, which the defendant claims as having purchased at sales of his testator’s estate in *1797*or before, and of the hires of them and other slaves before that time. The bill states the death of the testator forty-two years before the filing of it ; and it admits a settlement made in December, 1797V between the defendant and the plaintiff *Abraham,*in his own right and as guardian of the two other plaintiffs, his brother and sister : And seeks to avoid that settlement upon the grounds, that *Abraham*was then an infant wanting six months of full age; that the throe slaves, *Penny, Milly*and *Edmund*(claimed to have been purchased by the defendant) were not included in it, nor the hires of any of the negroes of the estate *;*and that if those negroes were included in it, the defendant’s purchase was fraudulent and void, being' at his own sale.

There is not the least doubt that the negroes were accounted for in the settlement of 1797. The account current exhibited with the bill gives the estate credit for £816 6 10, as “ amount of sales.” What was that large sum for ? The account was stated by commissioners appointed by the-court on the llth of December, and the receipts given by *Abraham*bear date the 14th of December ; and the last sales of negroes were made at or before the last day. At the sales, the plaintiffs, although *170some of them were infants, purchased *;*and the receipts clearly show, that *Milly*and *Edmund*were then claimed and admitted to he *Norfleet’s*under his purchase, as *Pen-mj*was under a former one. They are given for the ne-groes specifically bequeathed to each child, and also for those bought by them at that sale, being expressed to be for ‘ * negroes which the executor allowed them to buy at public sale” ; and they are also for six negroes men--tioned by name, “ remaining of my father’s estate after payment of his debts.” *Penny, Milly*and *Edmund*were known to all the parties as having belonged to the es--tate, and therefore must then have been considered as Norfleet’s. indeed it is stated in the bill, that *Norfleet*then claimed them, and procured *Mraham*to be appointed guardian, and took the receipt/or *the purpose of confirming the sales.*With the knowledge of these facts, can there be a rational doubt, that the commissioners must have included the prices of those negroes in the sum of J81G 6 10 *;*or that the plaintiff *Mraliam*would have settled upon any other principle *;*for he was present at the sale and made purchases himself. Were his own included ? if so, why not *Norfleet’s*? But the receipts, as expressed, are conclusive.

I do not inquire then, whether the commissioners or the executor made the sale ; or whether in either case the executor could purchase by the law of Virginia ; as to which there is evidence in the affirmative. The right' of the defendant does not rest on the purchase itself. He accounted for tiie value, which was accepted by the legatees *;*who thereby confirmed the title. The court does not mean to say, that a guardian and executor can in an improper case, where there is no necessity for a sale or the like, bind the ward by such a confirmation. And it is true., that the court does not encourage transactions of this sort between trustee and *cestui que trust ;*and will, if undue influence can be proved, or can even be slightly inferred, and advantage made by the trustee, he ready to give relief, if asked for in reasonable time. Was a sale necessary ?. The contrary is not even alleged. Indeed the plaintiffs bought at it. Was the price *171inadequate ? There is no allegation of that. It has already been shown, that it was paid in account. Was the settlement unfairly made, and by means of undue influence acquittances obtained ? It was not done in privacy, where such influence could be most effectually exercised over an inexperienced youth by an uncle ; but with the assistance of three justices of the peace appointed by the court, and proved to be capable and upright men. I know of no principle, upon which such a sale, necessary and for a full price, followed by a settlement in which the price is accounted for — supposing the parties to be all *sui juris*— could be impeached, however recent the transaction. . Much less, where the express confirmation receives the sanction of twenty-nine years acquiescence.

There is an effort however to avoid the effect of that, by alleging that the settlement is itself inoperative, because *Abraham Villines*was an infant ; that soon after the sale, *Jforjieel*removed from Nansemond to Person county in this state, and brought the plaintiffs, his nephews and niece with him, and treated them for a long time with great kindness, so that they did not suspect *until lately*(that is, in 1825) any unfairness that the plaintiff *Abraham*then went to Nansemond, and discovered that no inventory nor account of sales had been returned, and that in the account current there were no parti-lars of the sales, but only a lumping credit of *“*account of sales” *;*and that there was no credit for the hire of negroes, though several of them were grown. But the bill admits the charges for debts paid, to be just.

There is no distinct evidence of the age of *Abraham.*It must therefore be taken that he was of full age. He acted as if ho was; the defendant, his uncle, treated with him as such ; and the County Court appointed him guardian of his brother and sister. But it is a circumstance of very little consequence, as the case is now situated : for he and the others have acquiesced many years after full age.

Then as to the new discovery. What has been discovered ? Any unfairness ? No ; but that there might *172have been unfairness, for ought that appears on the account current, because the particulars are not given. Is that a new discovery ? It must have been known to *Mraham*when he settled. But suppose that he did not then know the manner in which the account was stated, it does not follow that the particulars were not exhibited both to the commissioners and to him, when the settlement was made ; nor especially, that the negroes were not accounted for therein. It has been already shown, that the negroes were, in fact, included, notwithstanding that does not expressly appear upon the account. It cannot be supposed the commissioners would state the account without knowing the particulars. No force is given to their report *proprio vigore*as a bar; but it rebuts the presumption of fraud, and invoking their aid is a circumstance to show, that the particulars were then known to all the parties, because they as well as the plaintiff would naturally require thorn, although the account does not exhibit them to us now. . The plaintiffs ought to show that an error was committed. The most material one suggested by them turns out to be unfounded in truth. The pretence of new discovery then can avail nothing. The only thing discovered is, that the account is in a particular form. But that neither proves, that the fact was not known at the time *;*nor that wrong was done to the plaintiffs ; nor that the defendant ought not to retain the slaves, which other documents prove he paid for. Above ail, the parties knew that some account had been settled, and that acquittan-ces had been given nine and twenty years before *;*and they were bound to look into any possible error sooner. Here, the three commissioners are dead ; the executrix who mauaged the estate exclusively for eight years, while the defendant was in Europe, and her husband arc also *dead;*the witnesses to the receipts, and every other person conusant of the sale and settlement, except the parties, are in their graves. It is impossible then to give further explanation ; and the answer is precise as to the justice of the settlement. Tune is evidence, from acquiescence in the exercise by another of an adverse right, *173of the grant *of that*right. But it is further respected, upon a principle of *public*policy, as a bar to the investí-gation of that right, because the truth cannot be discovered. Here indeed the proof, by documents, happens to be clear as to the value of the slaves being accounted for ; but these are only presumptions. As "to the hires before that time, they may be included in the sS816 G 10; they may not have been received by the defendant, who was in Europe, but by the executrix, and otherwise accounted for ; or the negroes may have been kept together by the mother for the support of the family, as the evidence makes probable. The parties knew they were entitled to them ; and they knew the estate was closed. After all witnesses are buried and vouchers given up, a new account cannot be ordered upon a bill filed twenty nine years after the trust was last acted on — the parties all living in the same neighborhood, and for nearly the whole time under no disability. Transactions of that period arc seen by too uncertain and obscure a twilight, to be sufficiently clear for judicial action. The difficulty of arriving at the truth is insuperable; and others would be encouraged to sleep upon their claims. The court must say, you come too late. *Petty*v. *Harman (ante*1 vol. 191) is not as strong as this case. *

*172A settlement of the account of an executor by commissioners appointed by the Couuty Court is not a bar to a future account, but it rebuts the presumption of fraud.

*173The case of *v{!J"figu*approved.

Per Curiam — Birr dismissed.