#### Thomas Compton *et ux. v.*William Culberson & Samuel Greer.

Upon a bill to correct a settled account for specified errors, such errors only can be corrected as arose from fraud or mistake ; and the plaintiff cannot surcharge and falsify, as to an item of the account assented to at the settlement with a full knowledge of the facts.

And where the bill also sought to set aside the settlement as obtained by undue influence, it was held that the plaintiff by consenting to a reference of the account upon the basis of the settlement, with liber, ty to surcharge and falsify, had waived the relief sought upon the ground of undue influence.

The original bill was for an account of the estate of tlie intestate *Samuel Greer,*and was filed in 1818, by *Thomas Compton*and his wife, a daughter of the intestate, and by him as administrator of two others of the children who were dead, against *William Culberson*a id *Samuel Greer jun.*the former of whom was administrator in conjunction with *Margaret Greer,*the widow of the intestate, and the latter the son of the intestate, and the executor of his mother *Margaret.*It charged that a considerable estate came to the hands of the widow and her co-administrator in 1790, when the intestate died ; of which an account and distribution were sought. It was charged, that although the children lived with their mother, they maintained themselves by their own labor, and therefore ought to have interest on their shares — that the *94administrators bought several articles at their own sale at an under value — that the administrators having returned a false and fraudulent account current to the County Court, in which they did not charge themselves with interest, nor with several sums which came to their hands, and which were specified, pretended to come to a settlement in 1809, with the children, upon the basis thereof, and then paid to each of them $220, as their respective shares without allowing interest, which the children,, being young and unacquainted with their rights and with accounts, accepted. The prayer was for a general account.

Answers were put in to this bill, admitting one of the mistakes and denying the others alleged, and insisting that the children were fully paid after correcting that mistake; and also that the youngest of the children was in 1809 twenty-five years of age, and that the items of the account were perfectly understood, and assented to by them all, and particularly the omission of interest, which was not brought into account on either side, because the family had lived together and been supported out of the profits. As to the allegation that the administrators had purchased at their own sale at an under value, the answer stated that the purchases were at fair prices, which were brought into account and fully assented to by the children. And it then set forth a settlement in 1809, on which the shares were ascertained and paid ; and averred that it was fair and proper; and that thereupon each child, with a full knowledge of all the facts, gave to the administrator receipts and acquittances in full, which were relied on as a bar to further accounting, in the same manner as if pleaded.

An amended bill was filed in 1820, in which further specific errors in the settlement were pointed out, for which, together with the former, it prayed that the settlement might be opened. And it was further charged, in reference to the assent given, as stated in the answers, by the children to the omission of the interest, and the confirmation of the purchases of the administrators, that such assent was not freely given, but was obtained by *95their mother by undue influence, and by uncandid insin.-nations that her daughters would lose nothing by settling , *°*, *, , . , °*, upon the tooting desired by her, saying that she was old and infirm, and that her children ought not to break up. her peace or be hard with her,, for she could not live long, and then they would have amongst them all she had, thereby intending they should understand,th at at her death her estate would be equally divided. That moved by their mother’s appeal, and in faith of her declaration of a future equal division, the daughters came to the settlement, and executed the acquittances. But she after-wards gave her whole estate by will to her son, the defendant. And the prayer was, that the acquittances might bo set aside as unduly obtained, and the parties come to a new *account;*or at any rate, thatthe settlement might be corrected in the matter of the errors, pointed out, and. particularly the interest.

The answer to the amended bill denied all other errors; and admitted that the intimation was given by the mother about the future disposition of her own estate* or to. the effect charged; but denied that it was intended or understood as an engagement, or otherwise than as matter of maternal bounty then in her mind, or that it was intended to overawe or buy off the children from prosecuting their demands. That in all probability the purpose then expressed would have been, fulfilled,, but for subsequent changes in the situation of the family. That of her three children then living one afterwards *died;*another intermarried with the plaintiff Thomas, who was in easy circumstances, and treated his mother-in-law with extreme harshness, which induced her to bestow all her estate on the defendant, who continued to live with her. This answer also concluded by relying on the settlement as a fair one, and the acquittances as a bar..

Much evidence was taken to every point of the case ; which it is not necessary to state, as the decision did not turn on it.

A reference was made as upon the hearing, by consent of the parties, to the master to take the accounts of the estate upon the basis of the former accounts, with liber*96ty to the plaintiffs to surcharge and falsify ; and upon that the master reported, that the plaintiffs were overpaid by the sum of *£1*15 4, after correcting all the specified mistakes; unless interest was to he charged, and he submitted that question to the court,

*Nash,*for the plaintiffs.

*Badger,*for the defendants.

Ruffin, Judge,

after stating the case as above, proceeded as follows : The cause comes on now upon the matter referred by the master to the decision of the court, and for further directions. It has been argued at large for the plaintiffs upon the evidence, and the rule of this court touching the dealings between parents and children, and settlements between guardian and ward.

The court would examine the case upon those points, both as to the facts and the law, were the cause open for a decision in favor of the plaintiffs, on the score of that settlement being unduly obtained. But it is not. The acts of the parties in making the special reference preclude us from going into that subject.

It is manifest that the grounds of the two kinds of relief sought are entirely different, as the two kinds of relief are in themselves distinct. The one is, to open a settled account on the score of specific errors — a relief to which all persons, in every relation of life, are entitled, and which depends merely upon showing errors made either thro’ fraud and imposition, or by mistake or accident. The settlement stands as right, except as *to the*pai’ticular errors pointed out, and having their origin in either of those causes. There is no accident alleged in this case. So far as this point is concerned, the question turns upon the false charges fraudulently made by the administrators, and the fraudulent omission of interest, But there, can be no fraud, in the sense of that term applicable to this subject, nor mistake where the parties knew all their rights, and all the facts, and were perfectly aware of the omission, and gave an express assent to it. "When they come to surcharge and falsify, how cun they do it as to an item absolutely agreed to at the settlement? *97But the other relief prayed is much broader. It is to set aside the whole settlement, and open the case to an account *de novo,*not only upon the ground that errors exist, and *the*party is deprived of rights, hut upon the additional ground of a higher and different species of fraud ; that the party was in a situation which put him in the other’s power ; that he was in a condition to be worked upon, and induced to take less than ho was entitled to, and knew he was entitled to, and that advantage was taken of that influence, and he unduly prevailed on to surrender his rights without a consideration. Then the knowledge of his rights does not negative the fraud. It only proves it the clearer; because it shows the extent of his weakness, and of the other’s control over him, and the iniquitous use made of it. A settlement made under those circumstances concludes nothing, and receipts in full given under it only stand as acquittances for the sums actually paid. Far otherwise is it on a bill to surcharge and falsify. There the receipts do stand as conclusive until errors are pointed out, and the account is opened only as to them. And those errors mustbeshown not to have been known and assented to at the settlement, or some concealment on the one part, or misapprehension of *the facts touching the item of account,*on the other.

Here the item of interest was known, discussed and given up by the children. They knew of their right, and they knew they were not to get it in that settlement. How then can it be said, there was any mistake or imposition upon the point of excluding the charge of it ? Whether they were fairly induced to relinquish it is another question. But that question is beyond our reach *;*because the plaintiffs have agreed to overrule that part of fho relief prayed, by having the accounts taken on the basis of the former account — thereby trusting the decir sion of their ability to show actual mistakes, thro’ ignor ranee, or accident,or fraudulent misrepresentation,or concealment. None such have been made to *appear;*and therefore the bill must be dismissed with costs.

Per Curiam. — Birr dismissed.