#### *E. Weatherford et al.*v. *A. S. Tate, executor of J. Richbourg.*

Charleston,

Jan’y, 1849

Where there was no disability on the part of the complainants, the lapse of time is a sufficient bar to an account of the administration of one who, as executor, had filed his return twenty-five years previous, and had been dead more than twenty years.

It is a well settled rule, that a lapse of twenty years balances the account of all antecedent transactions, unless there be some disability of the person entitled to the account, or some act or admission of the party liable to account, showing that it remained unsettled in that time, lapse of time need not be- pleaded formally. If there is enough in the answer to show that it is intended to be relied on, *that*is sufficient.

Testator made a bequest of slaves to her daughter for life, with limitation over to the lawful heirs of her *body*— held that the daughter took an absolute estate in the slaves.

*Before*Johnson, Ch. *at Charleston, February Sittings,*1846.

The decree of his Honor sufficiently states the facts necessary to the understanding of the points decided.

Johnson, Ch. Ann Moore, who died in 1818, by her last will and testament bequeathed to her daughter, Harriet Tut tie, then the wife of William Tuttle, two slaves, Polidore and Lucy; and to her daughter, the complainant, Charlotte Weatherford, three slaves by name; and in the last clause^ she says, “ all the property which I have given to my two daughters, Charlotte Weatherford and Harriet Tuttle, I give to them during their natural lives, and after their death to go to the lawful heirs of their bodies; no sale made by either *28of their husbands shall be valid, unless by the consent of or oue 0f my executors, and thus my executors have power to prevent such property being moved off the State.” app0inte¿ James Richbourg, the defendant’s testator, and Thomas Lehre, executors, — the former of whom alone qualified ; he died in 1826, and by his will appointed the defendant his executor. In 18 , a short time after testatrix’s death, William Tuttle removed to the State of Georgia, carrying with him his wife, the complainant, Harriet Tuttle, and the slaves Polidore and Lucy ; and the bill charges that this was done with the knowledge of the defendant’s testator, who made no efforts to prevent it: and that the said William Tut-tle there sold and disposed of the slaves, and that the said William Tuttle has since died, — so that, by the negligence of the complainant’s testator, the said slaves are lost to the said Harriet Tuttle; and prays that defendant may account for their value, and the value of their issue and increase, three in number. The bill also prays an account of the personal estate of the testatrix, Ann Moore.

l Hill Ch. Rep. 37.

On the question of negligence, one witness, Benjamin God-frey, testified that he gave notice to Richbourg that Tuttle intended to remove the negroes out of the State, but the circumstances lead me to believe that Tuttle deceived Richbourg, by pretence that he was about to remove to another place within the State, and that as soon as he heard that he was about to leave the State he sent an agent, one James Wilson, in pursuit of him, to endeavor to reclaim the slaves, who pursued him to the Savannah River, and finding that he had crossed the Georgia line he returned. This question is, however, unimportant. There can be no question that the complainant, Harriet Tuttle, took an absolute estate in the slaves, and that her husband’s marital rights attached, investing him with power to dispose of them as he pleased. The bequest is to Harriet Tuttle for life, and the limitation over is to the *lawful heirs of her body,*and judging apart from the terms of the will, I have no doubt there was, in the mind of the testator, a desire to secure to her daughter a life interest, free from the control of her husband, and that the property on her death should go over to the issue of her body, living at her death; but m *Myers*v. Pickett, *it*was held that a bequest of chattels to one for life, and then to the heirs of her body, vested an absolute estate in the first taker, on the ground that the limitation over was too remote; and that is this case. The provision that the slaves should not be removed out of the State, or sold by the husband, is not a condition, because there is no forfeiture or penalty attached to it, and is utterly inconsistent with the general right of property, and can only operate as a command or order that the property should not be removed or sold, which the party might obey or not at his pleasure.

*29James Richbourg, defendant’s testator, proved Ann Moore’s will, and qualified as executor, 5th June, 1819. He filed his first and only return in the Ordinary’s office, 13th April, 1821, showing a balance of $126 82 against himself, and died, as before stated, in 1826. On the 25th of October, 1841, the defendant appeared before the Ordinary, under a citation, for his testator’s administration of the estate of his testatrix, Ann Moore, and upon his stating the accounts the Ordinary found and decreed against him a balance, which, as corrected by the counsel, amounts to about $252. There was no appeal from this decree, but by consent of parties this bill was filed, and the case is now here to be tried *de novo,*and the accounts having been stated before one of the Masters, he has reported a balance of $51 52 in favor of Rich-bourg. The last item on the credit side, is under date 21st June, 1821, and the last on the debit side 10th May, 1820.

Both parties have excepted to the report, but on the argument here it is insisted that the lapse of time since this administration was granted, authorizes the presumption that this estate was settled. It is now twenty-seven years since Richbourg qualified as executor, twenty-five years since he filed his return, and twenty years since he died, and the well settled rule is that a lapse of twenty years balances the account of all antecedent transactions, unless there has been some disability of the persons entitled to the account, or some act or admission of the party liable to- accoufit, showing that it remained unsettled in that time. It does not appear that there was any disability on the part of any of the complainants ; and Richbourg’s filing his account in the Ordinary’s office on the 13th April, 1821, is the last act done by him in relation to the estate that is known, and between that time and the filing of this bill, 9th November, 1841, more than twenty years had elapsed ; and this case strikes me as one to which the rule is peculiarly applicable. Richbourg died leaving a large estate, and it cannot be believed that these complainants, some of whom are *shown to*be in necessitous circumstances, would have delayed to assert their claim so long, if there had been any just foundation, and looking through the whole case it strikes me as very probable that the matter of account has been brought in as an adjunct to Harriet Tuttle’s claim for the value *of the*negroes.

I did not understand the counsel for the complainant as controverting the rule, or its application to the case, but to insist that the defendant could not have the benefit of it, as it was not pleaded or relied on in the answer. The defendant might have pleaded that matter formally, which probably would generally be the better course, as it might super-cede the necessity for an account; or he may, according to our practice, insist on it in his answer; but no form is pre*30scribed in which it shall be stated, and I apprehend that if there is enough in the answer to show that it is intended to be relied on, that is sufficient. The defendant here states, among other things, that from all he could ascertain from the papers relating to the estate of Ann Moore, which he had found amongst the papers of his testator, it appeared that his said testator had “ settled during his lifetime.” Again, *“*so far as the defendant has any means of knowing, the said James Richbourg did in his lifetime fully and faithfully execute the will of the said Ann Moore, deceased, and administered all and singular the estate and effects of the said estate to the best and utmost of his ability,” &c., and I apprehend that he was at liberty to rely oil any fact or circumstance to sustain the answer, and a release itself would not have been more effectual than the lapse of time. It is therefore ordered and decreed that the complainant’s bill be dismissed with costs.

From this decree the complainants appealed, on the following grounds, viz.:

1st. Because the evidence showed the greatest negligence on the part of Richbourg, in relation to the negroes carried off by Tuttle.

2d. Because the lapse of time was no bar, inasmuch as the same was not pleaded.

3d. Because lapse of time, at best, furnishes only the presumption of payment. But in this case, the presumption cannot avail, because the defendant has come in and accounted, and his indebtedness established on the face of his account.

4th. Because Richbourg was a trustee, and not entitled to the benefit of the plea of the statute of limitations.

A. G. &• E. Magrath, for appellants.

Northrop & Mjgmminger, for appellee.

Johnston, Ch.

This Court is satisfied with the decree of the Chancellor, and with the view taken by him. It is therefore ordered that his decree be affirmed, and the appeal dismissed.

The whole Court concurred.

*Decree affirmed.*