#### JOHN Z. DAVIS AND OTHERS *against*STEPHEN W. COTTEN AND OTHERS.

Where a trustee is invested with an estate or an unclosed trust, no length of time will bar its recovery. 1

Where a mere equitable right of action exists, it must be enforced within a reasonable time, or else, for the sake of repose, it will be considered as having been abandoned, released, satisfied, or in some way arranged.

The application of the statute creating a presumption of payment, &c., does not depend upon the party’s knowledge of his rights.

Cause removed from the Court of Equity of Chatham County.

Roderic Cotten, by his will, directed his debts to be paid out of the proceeds of his perishable estate, and bequeathed to his wife, Ann, certain real and personal estate, and certain slaves by name. He also, by his will, gave certain real estate and slaves, specifically, to his son Stephen W. Cotten, and after some other legacies, directed and declared that all the residue of his estate should be divided into two lots, and then proceeds as follows: “ One of which I give unto the children of my'son R. C. Cotten, to be equally divided between them, share and share alike; the other lot I lend to my said son S. Cotten, during his natural life, and at his death I give the same unto the said children of my son R. C. Cotten; provided, nevertheless, that if my said son Stephen Wright Cotten, shall *431leave alive at his death, any child or children of his body, lawfully begotten, then I give the last mentioned lot to such child or children.”

Th'ere was a large number of slaves, that were included in this clause as part1 of the residue ; among others, a negro woman named Lavinia, who, at the death of the testator, had two children, Fanny and "William, and the woman and her daughter have -since had a very numerous issue, whose names are set forth in the bill. 0

Mrs. Ann Cotten, the testator’s widow, and Thomas Snipes were appointed executors in the will, who both qualified, but the latter alone acted in the business of administering the assets. At August term, 182Y, of the County Court of Chatham, the executors, alleging that it was necessary to enable them to execute the'trusts devolved upon them by the will, obtained an order to sell the slaves Lavinia, Fanny and William, under which these slaves were sold, and bought by one Charles Williams, for, and on account of, the executrix, Mrs. Cotten, who took them into possession, and held them as her own, until her death, which took place in 1843.-

Mrs. Ann Gotten bequeathed the slaves Lavinia, Fanuy and "William, with the increase of the females, to the defendant S. W. Cotten, and appointed him executor of her will. The executor qualified', and has held possession of these slaves ever since the year 1843, claiming the absolute right to the same.

About the year 1828, the plaintiffs, by their guardian, E. 0. Cotten, with the defendant, S. W. Cotten, petitioned for a division of the slaves, to which they were severally entitled under the residuary clause in the will of Eoderic Cotten. In pursuance thereof, a division of these slaves was made, and the commissioners appointed for that purpose made their report at the February term, 1830, of that Court, which was, in all things, confirmed. The petition, in setting out the rights of the parties, asserts no claim to Lavinia, Fanny nor William, nor to their offspring; neither does the report of the commissioners notice thehi. The slaves thus allotted have been enjoyed by each party, without question, ever since.

*432The bill is filed by the plaintiff Davis, and his wife Elizabeth, the latter of whom is one of the daughters of R. C. Cot-ten, and who was married in 1838, while yet an infant, and by John A. Cotten, a son of the same, claiming two-thirds of one-lialf of the slaves Lavinia, Fanny, and their increase and William, alleging that the sale of these slaves was illegal, and unnecessary, and that, being purchased by the executrix, they still constitute a part of the residue under the' will. Emily Crump, the only other child of R. C. Cotten, born at the death of the testator, is made a party defendant, being entitled, as plaintiffs say, to the other third. The plaintiffs claim, also, a contingent interest in the whole of the slaves taken by S. W. Cotten by virtue of this clause in the said will.

Thomas Snipes died in 184-, having made a will, appointing therein several executors, of whom only Edwin Snipes proved the will and qualified. lie is made a party defendant. It is alleged that a sufficiency of assets to answer the plaintiffs’ claim have come to his hands. S. W. Cotten and Emily Crump are also made defendants.

The prayer is for a decree for the plaintiffs’ interest in two-tliirds of the slaves mentioned, and their increase, and for an account of the hires of these slaves; also for writs of sequestration, and *ne*exeat, against S. "W. Cotten, to restrain him from removing any of the slaves -which ho has received under the residuary clause aforesaid; also for general relief.

The answer of the defendant S. W. Cotten states that, at February term, 1830, Thomas Snipes, the acting executor, made a settlement of his administration of the estate of the testator, with commissioners appointed by the County Court of Chatham, in which, amongst other things, ho was charged with the price of the slaves Lavinia, Fanny and William, and a balance was reported against him of $490,06^. A copy of the record of the County Court of Chatham, showing this settlement and report, is filed as an exhibit.

The defendant Cotten insists that this settlement by the acting executor, closed the trust, and having*' had possession of the property in question, from the date of 1830, until the fil*433ing of this bill in 1853, during the last 15 years of which time the plaintiff Davis "was the husband of Elizabeth, and could have brought suit, lie is protected by the length of time.

lie also insists that the petition for a division of the slaves, without asserting any claim to Lavinia, &c., the actual division and the action of the County Court upon the report of the commissioners, show an abandonment of the claim.

33y an interlocutory order of this Court, a' reference was made to a commissioner “ to enquire whether Thomas Snipes, the acting executor of Eoderic Cotten, paid to SI *W.*Cotten, or E. C. Gotten, or otherwise discharged, the sum of $496,064-, which is reported as the balance in his hands by the final settlement filed at February term, 1530, of the County Court of Chatham.”

The commissioner reported that the balance was, at that 1 time, paid to S. *W.*Cotten and E. C. Gotten, whose receipts in full were filed by Thomas Snipes, and are now produced by his representative.

There were replication, commissions and proofs taken.

The cause was set down for hearing upon the bill, answer, exhibits, proofs, the report of the commissioner, and former orders, and sent to this Court by consent.

*Bryan*and *Phillips,*for plaintiffs.

*JIaughton,*for defendants.

PeaRson, J.

The pleadings in this case are loosely drawn. At the last term it became necessary to direct an inquiry — did Thomas Snipes, the acting executor of Eoderic Cotten, pay to ¡Stephen *W.*and E. C. Cotten, the balance of $496,064, report,ed as the amount in his hands by his final settlefnent, filed at *February term,*1830, of the County Court of Chatham ? The commissioner reports that the balance in hand, to wit, the sum of $496,06-^, was, at that time, paid over to Stephen *W.*and E. C. Cotten, whose receipts in full were filed by the said Thomas Snipes, and arc now produced by his personal representative. This balance includes the price of Lavinia and her *434two children; so the trust which was undertaken by Snipes and Mrs. Ann Cotten, as the executors, was then closed.

Lavinia and her two .children were bought by Mrs. Ann Cotten through her agent, Charles Williams, who bid for these slaves and many other articles for the widow. They did not pass out of her possession, but were kept by her until her death, and then passed into the hands of the defendant, as her executor and legatee.

In *Jkily,*1838, the plaintiff Davis married one of the daughters of E. 0. Cotten, and by the *jus*mariti, although she was under age, he, as husband, had a right to receive and release the legacy due to her. Thus, near fifteen years have expired since he had a right to insist that the sale of Lavinia and her two children should be set aside. He is inactive during all that time ; does not in his bill assign any reason for the delay; and yet the title to a large family of negroes is now, as he insists, to be overhauled, and accounts of hires and profits, reaching back upwards of twenty-four years, taken; because he did not see proper to assert his right within a reasonable time. Upon the argument, it was suggested, that Davis has been all this time ignorant of his rights, because the property was purchased in the name of Charles Williams; and yet ho admits that the property never for a moment went out of the possession of Mrs. Ootten. Iler possession was surely enough to put him upon enquiry; but he does not even allege that he did not know all about the fact that Williams had bid in the property for the widow, which is a common practice, resorted to under the mistaken notion that the interposition of a third person will give effect to a sale where the executor indirectly buys at his own sale. So far as his allegations are concerned, there is no more reason why he might not have filed his bill after the expiration of thirty years, as well as after the expiration of fifteen.

The idea that one cannot, by acquiescence, *confirm a*title, unless he is proved to have been aware of his rights, supposing, for the sake of argument, that tire long possession of Mrs. Cotten did not amount to notice, is not applicable to statutes *435of limitation, or the kindred statutory provisions of our law in regard to the presumption of an abandonment, satisfaction, or release of rights, as well equitable as, legal; because those statutes do not proceed on the notion of a confirmation, but on the ground of necessity; because public policy requires repose, so as to prevent the assertion of rights that have been so long neglected and unattended to, that to enforce them, would “work greater injustice than to pass them by as abandoned, released or arranged, in some way or other.” This is so obviously a favorite policy with the Legislature, that the Courts are obliged to carry it fully into effect. The whole purpose of creating repose would be marred, if, in every instance, enquiry must be instituted as to the party’s knowledge of his rights.

It was said in the argument, “ this is a bill for a legacyso, the statute of presumptions does not apply. Here is a misconception, caused by not attending to the distinction between *estates*in equity and *rights*in equity. Where there is an express trust, or where an executor or administrator holds a legacy, or distributive share, without closing up the estate by a filial settlement, the cestui que trust, legatee, or distributee, has the *estate*in equity. The trustee, executor or administrator, holds the legal title without any conflict or clashing of rights, or anything in the nature of adverse possession. On this ground, it was held, that our statute in regard to presumptions does not apply to such cases; and the remedy can only be defeated by the common law presumption, or by a presumption of fact. *Hamlin*v. Mebane, 1 Jones’ Eq. 18. Hut where there is no express trust, and equity is invoked to *create*a trust, on the ground of fraud; or where an executor or administrator files a settlement, receipts are passed, and the matter is considered as ended, if a legatee, or distributee, seeks to impeach a settlement, on the allegation of fraud, or to set aside a sale of some article, on the ground that the executor or administrator cannot buy at his own sale, and of a right in equity to have the executor or administrator, so purchasing, converted into a trustee — not because there was fraud *436in fact, or any inadequacy in price, or any contrivance whereby to get the property for a less sum than others -would have been willing to give for it, but because “ there might have been fraud” — in all such cases, the party is not looked upon as having an *estate*in equity, but as having a mere *right,*which he must enforce within a reasonable time, or else, for the sake of repose, it will be considered as having been abandoned, released, satisfied, or arranged, in some way. *Nelson*v. *Hughes,*ante, 34; *Thompson*v. *Thompson,*1 Jones’ Rep. 430. Hence, the importance of the enquiry which was directed m this case. If the executors had made no settlement, or had not paid over the balance, there was an express and unclosed trust, as to which the statute of presumptions does not appty; but if the executors liad closed up the business, and the several legatees had received their legacies, *“*and filial portions,” then, there was no express trust, but a mere right to have the executrix converted into a trustee, in regard to Lavinia and her children; which is the very sort of equitable right that falls within the operation of the statute, and comes peculiarly within the mischief which the statute intended to remedy.

PnR Oueiam. Bill dismissed with costs.