#### *Benj. F. Sims, ex'r. of Nathan Sims, et al.*v. *A. R.*Augh*tery, adm'r. of D. H. Sims, et al.*

Columbia,

May, 1850.

After malting other provisions in his mil, testator directed that all the residue of his estate, of what nature soever, should *“remain in the possession”*of his wife until his debts were paid, and during her widowhood, under the direction of his executors, and after her death, *“all such estate, with ike increase arising*thereon” should *“be collected*together,” appraised and equally divided, &c. *Held,*that the widow Was entitled under the will, only to a comfortable maintenance and support, and that a purchase of slaves made by her from the income, inured to the *benefit of testator’s estate.*

Defendants'had been in the unbroken possession of the slaves in controversy, claiming them in their own right, and adversely to the plaintiffs, for a period of nearly twenty-five years before the commencement of the suit; *held,*that this lapse of time gave rise to all the presumptions that might be necessary to consummate and quiet the title of defendants to the slaves.

The effect of a settlement in full is *prima fade*to bar all claims which might or should have been brought into it; and must be rebutted by stronger and more direct evidence, than is afforded by the formal and unsatisfactory answer of a party who had been brought in debt in the settlement, and who had slumbered over his claim, alleged to have been omitted therefrom, for years, and until after the death of the other party to the settlement.

*104*Held,*that a defendant in an action at law, on certain notes which, it was alleged, had been omitted in a settlement in full, previously had, had a right to come into this Court to seek a discovery from the plaintiff at law, in regard to the circumstances attending that settlement. And that the Court having entertained the bill for that purpose, had a right to retain it for judgment.

*Held,*that complainant had a right to come into this Court to raise a question, which the Law Court, considering it as falling within the peculiar province of the Court of Equity, had refused to decide.

Although a bill is multifarious, which seeks to restrain distinct actions at law, and relating to different estates, yet, if the defendant does not make that de-fence at the proper time, by plea, or waives it, it is a matter of discretion with the Court whether it will act upon the objection to the bill, on its own motion.

*Before*Dunkin, Ch. *at*Union, *June Sittings,*1849.

CIRCUIT DECREE.

Dunkin, Oh. The principal object of these proceedings is to restrain certain suits in trover, instituted by the defendant, A. R. Aughtery, and certain other suits at law, instituted by the defendant, John F. Sims. The subject will be more easily understood by considering, in the first place, the matters involved in the case of A. R. Aughtery.

The complainants are the executor and legatees of Nathan Sims, deceased. Aughtery, as the administrator of David Hopkins Sims, deceased, has sued the complainants in four actions of trover, for the recovery of several' negroes which passed to them under the will of Nathan. Sims, deceased. These negroes, or those from whom they are descended, were eleven slaves, purchased by Nathan Sims from his brother, Reuben Sims, in 1836, in whose continued • possession they had been since IS21. The defendant derives title as the legal representative of D. H. Sims, who died under age, and intestate, in August, 1827. Defendant took out letters of admin-stration.on the 19th February, 1846.

■ ■ To elucidate the respective merits of the title set up, it is necessary to advert to the will of James Sims, Sr. tie was the grand-father and common ancestor of the complainants and the defendants’s intestate. His will was admitted to probate on the 1st January, 1795. The testator left a widow, two daughters and five sons. After providing for his daughters, the testator proceeds as follows, viz: “ Then my will and desire is, that the residue of my estate, of what nature soever, shall remain in the possession of my wife, Elizabeth, under the direction of my executors, until my debts are fully paid, and during her widowhood *;*to be delivered as a loan to either of my five sons, as they may need, agreeably to the opinion of my executors ; not to be removed beyond the limits of the State, ever debarring the delivery of a slave to my son James ; and after the death or intermarriage of my wife, all *105such estate, with the increase arising thereon, to be collected together and appraised by three justices of the peace, for this county, with the assistance of my executors, which I give to' be equally divided between my four sons, Matthew, John, Nathan and Reuben, they paying tó my son James one-fifth part of the appraisement of the slaves, and one-fifth of the residue of such estate to be delivered to him, and to their heirs forever.”

John Sanders and Peter Brazilman qualified as executors, and Elizabeth Sims as executrix of the will. The estate, consisting of land and negroes, stock, «fee., was left in her possession, and so continued until her death, in March, 1820. She made a will, dated 28th May, 1810, by which she bequeathed two negro women, Hannah and Matilda, with their children, Hannah and Edy, to Ephraim Lyles, jr. and his lawful children, but in the event of his death, without lawful issue, then to her grandson, David Hopkins Sims. Ephraim Lyles was appointed executor, proved the will, and qualified thereon, on the 28th April, 1820.

On the 12th August, 1820, proceedings were had in this Court between the several parties interested, under the will of James Sims, sr., and the surviving executor, John Sanders, for the purpose of making a partition of the residue, according to the provision of the will. The witness, *Col. Benjamin*Maybin, proved that the partition was made in 1821; he attended as representing the interest of the children of James Sims, the younger, who was then dead. The negroes now claimed by this defendant, as the administrator of D. H. Sims, deceased, were brought into the partition as part of the estate of James Sims, sr., and went into the possession of the sons, Matthew, Nathan and Reuben. Matthew got one of these negroes, Nathan one, and the rest fell into the share of Reuben. Reuben rather objected that so many of them fell into his lot, and he and Nathan spoke of an exchgjjgg^i^ffff^. was not made. Lyles had then set up a claim and the sons objected to account to the witnes#fori!e money value of the share of James Sims, jr’s. child rem in thesmJMwuM^ groes, until Lyles’s claim was disposed of. This} tif^^nfcwasr ‘ ***j.q afterwards adjusted with the witness by a note/póm each of_ |Jj the sons, for the share of James's children. Tpe the note of Reuben Sims was settled by his^egafees, the^yi-'^' defendants, James Sims, and his brother John surety.

About the time of this partition, Lyles, as the executor of Elizabeth Sims, deceased, instituted three several suits in trover, against Matthew Sims, Nathan Sims, and Reuben Sims, to recover from each such of the negroes, embraced in the will of the testatrix, as had fallen into their possession respectively. A verdict was rendered against Matthew Sims, *106and an appeal was taken. The judgment of the Court was pronounced by Mr. Justice Johnson, at November Term, 1823. it had appeared on the trial, that the two negro women bequeathed by Elizabeth Sims, had been purchased by her from the income of her husband’s estate, and that until a few years before her death, she always spoke of these negroes as part ihe estate of her deceased husband, but having become displeased with her children, she said that she had *taken*counsel on the subject, and was advised that she had the power of disposing of them, and had determined to leave them to the plaintiff. The defendant had contended, as his first ground of appeal, that under her husband’s will, Mrs. Sims had only the right of possession, and the enjoyment of what was necessary for her support and maintenance ; and that the fund with which they were purchased, was so much surplus, and belonged to the estate, and that, therefore, the negroes were the property of the estate of James Sims, deceased. “It is not necessary to the determination of this case,” say the Court of Appeals, “to enter into the consideration of this question, and as the case will probably find its way into another Court, possessing competent powers, it is thought advisable to leave it unfettered by any opinion of this Court.” The Court holds, however, that as Mrs. Sims had purchased the negroes, the legal title or property was in her, and was moreover subject to administration, and might be liable to other claims of equal or paramount right. “ It is necessary, therefore,” conclude the Court, “ that this fund should go into the hands of the executor, to be disposed of in the manner provided by law.” The learned Reporter, in a note, says that it is clearly the rule of law. as held by the Court, that the legal title in such case was in the executrix, Elizabeth Sims, but that a different rule, (or rather a modification of the rule,) obtains in equity; “ if an executor.” says he, “ purchase with the funds of the estate, it is at the option of those entitled to the estate, to charge him with the money and interest, or to take the property purchased.”

Yery soon after the opinion of the Court of Appeals was delivered, to wit: on the seventh day of February, 1824, a bill was filed in this Court, by Matthew Sims, Nathan Sims, Reuben Sims and others, against Ephraim Lyles, executor of Elizabeth Sims, deceased. The bill, among other things, refers to the proceedings in partition already had. and alleges that Lyles, as executor, had instituted suits, “to obtain the said negroes, which were allotted as part of the estate of James Sims, deceased, in partition, settlement and division of his estate, under his will, as appears by the proceedings had of record in this honorable Court in the said case,” &c., and prays an injunction, &c. An- interlocutory order of injunction was made by Chancellor Gaillard, on the 14th February, *1071824. In the month of October, following, Ephraim Lyles departed this life, intestate and insolvent. No administration has been had on his estate, or on the estate of his testatrix, Elizabeth Sims, further than the same may have been administered by him.

In this connection, it may be only necessary to add, that Col. Maybin testified that the two negro women which Mrs. Sims bequeathed to Lyles, had been purchased in Charleston, in 1805, by Nathan Sims, with the proceeds of the crop of cotton which Mrs. Sims had made the previous year — they were at that time two African girls, and were purchased by the sons for Mrs. Sims. He testified also, that after the death, of the testator, James Sims, a negro belonging to the estate, and worth five hundred dollars, had been sold to pay a debt said to be due to Brazilman.

At this stage it is proper to consider the question which the Court of Appeals, in 1823, declined to consider, as being more proper for the determination of a tribunal differently constituted. The testator directs that “ all his estate, of what nature soever, shall remain in the possession of his wife, under the direction of his executors, until his debts are paid, and during her widowhood, and after" the death of his wife, all such estate,” (i. e. of what nature soever,) “ together with the increase arising thereon, shall be collected together and appraised,” &c. The whole estate was to remain in possession of his widow, so long as she remained such ; on her decease, that estate, with all the intermediate accumulations, was to be collected together and distributed among his five sons. The testator was a planter, deriving an income from his crops, more it is said than was sufficient for the wants of his family. His wife was neither to be stinted nor circumscribed in the enjoyment, but if he had intended that on her decease the surplus of the crops or other income should be divided among his sons, it Would be difficult to adopt more appropriate terms than the language used by the testator, “all the estate which had been left in the possession of my. wife,” together with the increase arising thereon, “I give to be equally divided,” &c. Regarding Mrs. Sims as holding under this bequest alone, the Court is of opinion that her interest in the estate, as well as “ the increase arising thereon,” in the land, negroes and crops, cease.d with her life. But Mrs. Sims was the qualified executrix of her husband. The negroes were purchased with the funds of the estate in her hands. The application of the trust fund must be clearly proved, says Chancellor Harper, but when established, “an executor is in equity a trustee, and such purchases made by him, are subject to all the rules which apply to resulting trusts.” When it is remembered that a negro belonging to the estate, worth probably twice the value of these two African girls, in 1805, was *108So]d *to*pay a debt of the testator, it is no hardship to assume tjjat sjje aC];ed in a fiduciary relation to declare that the slaves *'*thus purchased, became part of her testator’s estate, and were rightly divided under the provisions of his will, thus quieting a title which has been sanctified by an undisputed possession of nearly a quarter of a century.

But assuming that Elizabeth Sims had an absolute estate in the slaves, the legal title vested in her executor on her death, in March, 1820. It was so declared by the Court of Appeals, in November, 1823, and that “it was necessary that the property should go.into the hands of the executor, to be disposed of in the manner provided by law.” At that time the negroes now in dispute were in the possession of Reuben Sims, holding under the partition of 1821, and in open and avowed hostility to the title of the executor. They were held by him and those claiming under him, from that time until the 21st February, 1846. “ The lapse of twenty years,” Court in *Riddlehoover*v. *Kinctrd,*“is sufficient to raise the presumption of almost any thing that is necessary to quiet the title of property.” “ If there had been no will and no administration, administration would nevertheless be presumed, and that defendants had acquired a title from the administrator.” According to the judgment of the Appeal Court, the legal title in these slaves was in the legal representative of Elizabeth Sims, and it, is so now, unless it be in the complainants. After a possession of twenty-five years, the Court will presume a sale by the executor for the purpose of paying the debts, an administration *de bonis non*after Lyles’s death, and a sale by such administration, or almost any thing else, in order to quiet the long possession.

1 Hill Ch. 378.

But Aughtery administered in behalf 'of the distributees of D.avid Hopkins Sims, who died a minor, in August, 1827; his next of kin were his father, Reuben Sims, and his brothers and sisters, the defendants. It is admitted by the answer, that in 1836, or before, Nathan Sims purchased from Wm. B. R. Farr, a tract of land' for the use and benefit of Reuben Sims’s family, for three thousand dollars, and it was thereupon agreed by the said Nathan Sims and Reuben Sims, that Reuben Sims was to transfer and deliver to Nathan Sims eleven negroes, (those now in dispute,) for the price of three thousand one hundred dollars, and in consideration thereof, Nathan Sims agreed to pay for the said tract of land so purchased of Farr ; that Nathan Sims gave his note to Farr for the land, took possession of the slaves, and held them until his death, in 1844, and his family have since held them. Reuben Sims and his family took possession of the land purchased for them from W. B. R. Farr. He and they held it until his death, in 1844, and his family (the defendants,) have (in the language of the answer,) “ continued to reside *109upon the said land up to the present time, receiving the rents and profits of the same.” If all the defendants were minors, (and the youngest is now about twenty-seven or eight years of age,) it is insisted, on the part of the complainants, that they cannot hold the land and disaffirm the contract. It seems to the Court that this view is well sustained on authority as well as reason. It affords, too, a satisfactory reply to that part of the defendant Aughtery’s answer, in which he professes his readiness to do justice to the acts of kindness done by Nathan Sims to the family of his brother Reuben Sims, and avers that he instituted his several suits in trover for the purpose of having justice done between the parties, but insists that this Court has no authority to take cognizance of or interfere in this matter; pleads to the jurisdiction and craves the judgment of the Court thereon.

It is proper now to advert to the case of the other plaintiff at law, John F. Sims. His father, Reuben Sims, was sold out by the sheriff in 1827. The Court will not pretend to state all the facts fully or very accurately, in relation to this branch of this case. The pleadings and the proofs which accompany this decree, will supply any omission and correct any inaccuracy. The eldest lien on Reuben Sims’s property after sale, (as the Court understands,) was a judgment in favor of W. B. Farr, for some ten thousand dollars. Nathan Sims came forward as the friend of his brother; bought Farr’s judgment, perhaps for twenty-five hundred dollars, and thus obtained the controul of the property of Reuben Sims, lie continued for several years to act as the friend of his brother and family. It is alleged in the answer, that the proceeds of the crops were received by him until 1836 or 1839, and it is proved that he furnished the family with supplies, &c. John F. Sims, the defendant, lived on the place, and managed from 1836 to 1839, inclusive. The crops, he says, were still sold by Nathan Sims, Col. Reuben Sims being present. Reuben Sims died in 1840, and a division took place among the defendants in December, 1841. About fifty-six slaves were divided among the widow and children of Reuben Sims. It appears by the statement in evidence, that the land and eight slaves were allotted to the widow, and the rest of the slaves divided among the children. In the month of October, following, (1842) a settlement took place between Nathan Sims and the family of Reuben Sims. The circumstances connected with it are most fully detailed in the testimony of *John P. iSarlan,*a witness called by the defendants. He married a daughter of Reuben Sims, but he was not objected to by the complainants. He said that they went to the house of Nathan Sims for the purpose of settling. There were present, beside himself, Dr. Milton Goudelock, (who had married a daughter) A. R. Aughtery, (the defend*110ant, who had married another daughter.) John F. Sims, (defendant) and James N. Sims (as hé thinks); the negroes had been previously divided. The object was to ascertain the debts of Col. Reuben Sims to be paid by his heirs, “ so that, it might be known how much each had to pay.” A memorandum of the debts was produced, among them was the Farr debt, put down at $3500, held by Nathan Sims; the judgment was open for a much larger amount. Nathan Sims had also an account among the debts, to be paid by the children; a paper like that now produced, was present, and there were several other papers on the table. The children were going to divide the debts among them ; calculations were made by those capable of calculating. Dr. Goudelock made some objection to one of the negroes which had been allotted to him, and Nathan Sims took the negro at the valuation. In the course of the day, witness heard Dr. Goude-lock say, that Nathan Sims ought to have made a shewing, but he does not recollect whether it was said in the presence of Nathan Sims; “ finally, all agreed to the settlement.” Witness “concluded it was a final settlement among them. Witness married one of Reuben Sims’s daughters, and has been always willing to stand by the settlement; thought Nathan Sims had had a great deal of trouble in managing the property, and that he was working for the benefit of the children.” Another witness, *George Ashford*was examined before the Commissioner. He attended at Nathan Sims’s in August, [quere October ?] 1842, as creditor of Col. Reuben Sims, deceased. He supposed the parties were making a final settlement. Nathan Sims had a judgment of W. B. Farr, on Reuben Sims, which he said he had purchased for the benefit of Col. Reuben Sims’s children, and all he wanted was for them to pay him what he had given for it. He said he had given his note for about twenty-five hundred dollars, for the judgment. There was a list of debts owing by Col. Reuben Sims, for some of which Nathan Sims was probably bound. Each of the children of Reuben Sims was to pay certain debts, and each to pay their proportion of the *Fan*debt. He thinks, as the debts were called out. the paper (now produced) referred to, was marked so as to indicate by whom they were to be paid. Mr. Aughtery was to pay witness upwards of fifteen hundred dollars. Nathan Sims told them that a number of the debts in the exhibit they were not bound to pay, but advised them to pay them.

The paper to which these witness referred, was in the handwriting of Nathan Sims, and forms part of the evidence in the cause, as explanatory of their testimony. It may be only necessary here to remark, that in the statement of debts to be paid by the children, Ashford’s debt of $1553 is set down to Aughtery, and the debt due by Reuben Sims to Col. *111Maybin for James Sims:s children’s share of the negroes divided in 1821, was put down to James N. Sims, and was after-^ wards settled (as Col. Maybin testified) by James N. Sims’s note, with John F. Sims as surety. Nathan Sims survived nearly two years after this settlement, and died on the 27th of June, 1844, leaving Benjamin F. Sims his executor, and the other complainants, his devisees and legatees.

On the day before A. It. Aughtery instituted his suits in trover against the widow and children of Nathan Sims, to wit: — on the 20th of February, 1846, John F. Sims, the defendant, caused two suits to be entered against Benjamin F. Sims, executor of Nathan Sims, deceased. One of the suits is presented in the name of W. B. R. Farr, as plaintiff, and the other in the name of Richard O’Neale, as plaintiff. To restrain the prosecution of these suits, is another object of this bill. The cause of action in the former case is a sealed note of Nathan Sims to W. B. R. Farr, for *$1000,*dated and in the latter, a sealed note of Nathan Sims to R. O’Neale, for about $594, dated Complainants charge that, in February, 1826, when Nathan Sims purchased the eleven negroes from Reuben Sims, a statement was made and is entered in Nathan Sims’s book, in which he charges, as paid for Reuben Sims, a debt to Sartor of $607 ; to Starnes, of $1386 47, and to W. B. R. Farr, of $2000, amounting to $3993 47, and credits the purchase of the negroes, $3100, leaving a balance due Nathan Sims of $893 47; they charge the $2000 thus paid was part of the purchase of the land of $3000; thus leaving the $1000 note to Farr to be paid by Col. Reuben Sims; that accordingly, soon after, and while the property was under the management of the defendant, John F. Sims, this note was taken up by him out of the proceeds of the crops; that in the same manner the O’Neale note bad been given by Nathan Sims for the benefit of the family, and was paid by John F. Sims in the same way ; and that afterwards, in settling with the family of Reuben Sims for the proceeds of the crops, he had received credit for the sums thus paid, and a balance was due by him on the account. The answer of John F. Sims in relation to these transactions is very unsatisfactory. He says that he purchased the O’Neale note, about the year *1840*or 1841. and paid for it out of the proceeds of his cotton crop, which he had sent to Columbia. The note was, in fact, deducted by O’Neale from the sales of cotton belonging to the family of Reuben Sims, which had been placed in his hands by Nathan Sims, and so the Court thinks, appears from the answer itself. The defendant says he purchased the Farr note about the year 1837 or 1838; but he does not say whether it was or was not paid for out of the proceeds' of the cotton belonging to the family of Col. *112Reuben Sims. The defendant does, however, “deny that he was allowed any credit in the settlement with the other members of the family for the said notes in accounting for the cotton crops sold by him.” The Court does not suppose that in this denial the defendant means to say he paid these notes out of the proceeds of the cotton crops, and settled with or paid the family the amount of sales without deducting the sums thus paid to Farr and O’Neale. But he may mean that he never had a settlement with them at all, or that he never settled for the crops out of which these debts were paid, or it may mean that he purchased, with his own money, in 1837 or 1838, a note which W. B. R. Farr then held on Nathan Sims for $1000, and about 1840 or 1841, purchased in the same way a note of N. Sims to R. O’Neale for $594, and that he has never been allowed for them in any settlement with the family. There are very grave difficulties in coming to the last conclusion, which should be removed by much stronger and more direct evidence than a mere dry and formal answer. The defendant offered no evidence whatever in relation to his purchase of the notes; the time or the mode in which he had paid for them. In the absence of any such proof — in the absence of any denial in the answer that the Farr note was paid from the proceeds of the cotton belonging to Reuben Sims’s family, and the admission that the note was taken up in 1837 or 1838, the Court is led strongly to the conclusion that this note was paid, as the O’Neale is admitted to have been paid, from the proceeds of cotton belonging to the family, and not from the individual funds of the defendant, John F. Sims. The entries in Nathan Sims’s book, made by himself in February, 1836, are evidence of nothing but the fact that such entries were made by him, and so the Court ruled at the hearing. But in October, 1842, there was a settlement between Nathan Sims and the family of Reuben Sims ; John F. Sims was present; was fully competent to understand and to act, and was bound by what was then done. On the supposition that the Farr note of $1000 and the O’Neale note of $594, had been long since settled by the family, as the complainants charge they in fact were, and of right ought to have been, from the proceeds of their cotton, it is quite intelligible that no notice should have been taken of them. But if they were a debt due by Nathan Sims to the family, why were they not introduced? If they were introduced, they were certainly adjusted. But the defendant, John F. Sims, admits and insists they were not brought into that settlement. He says it was a partial settlement. But he admits that the account filed with the complainant’s bill, and marked exhibit (D) contains a statement of the debts, a portion of which the parties then agreed to pay, and he insists that the amount at which Na*113than Sims put down his claim under the large Farr judgment, shall be concluded by that statement, and he admits that he and his two brothers assumed to pay to Nathan Sims1 the amount due to him on his account of $2275, and that he gave his note, with W. W. Sims and R. G. Sims (his brothers) to Nathan Sims for the amount, which has since been sued to judgment and is now nearly paid; that he, with Milton Goudelock and R. G. Sims, gave another note to Nathan Sims for the amount due to him on the Farr judgment, as appeared by exhibit (D) “that some of the parties, to wit: — Milton Goudelock and James N. Sims, have not paid all the debts assumed to be paid by them, as indicated by the initials on the exhibit (D;) and the defendant, John F. Sims,” further admits, “that at the time of this settlement, and when he executed these notes to Nathan Sims in his lifetime, he had in his possession the Farr and O’Neale notes, and states as a reason why the Farr and O’Neale notes were not then brought to view was, that after he purchased the said notes, he had laid them away, expecting them to be accounted for by the said Nathan Sims on a final settlement, but that it did not occur to him until some time after he had given a note for the Farr judgment, that the said O’Neale and Farr notes had not been accounted for by the said Nathan Sims, and after examining the matter more fully, he came to the conclusion and ascertained that the said O’Neale and Farr notes had not been satisfactorily accounted for,” and he thereupon instituted suits thereon against the complainant, as executor of Nathan Sims, deceased.

S. *527¿*

“It would be most mischievous,” says Mr. Justice Story, “to allow settled accounts between the parties, especially when vouchers have been delivered up or destroyed, to be unraveled unless for urgent reasons, and under circumstances of plain error, which ought to be corrected.” The Court is well satisfied that the O’Neale and Farr notes were matters between Nathan Sims and the family of Reuben Sims. But conceding that they had been purchased by John F. Sims, and that they were for adjustment between him and Nathan Sims, the Court is of opinion that, *prima*facie, at least, the settlement of October, 1842, and the execution of the two notes by John F. Sims to Nathan Sims, amount to a presumed adjustment of all existing demands between them. But one of the notes of John F. Sims so given, was afterwards sued to judgment, and the judgment has been nearly satisfied. In the mean time he had “ laid aside” the ONeale and Farr notes, on which, according to his statement, Nathan Sims owed him between two and three thousand dollars, and he did not wake up to the knowledge that “these notes had not been satisfactorily accounted for” until nearly five years after the settlement, and nearly two years *114after the sleep of death had fallen upon him who was most competent to explain or confute.

It is ordered and decreed that the defendant, A. R. Augh-tery, be perpetually enjoined from prosecuting his suits at law in trovei, instituted by him, and that he pay the costs of the said suits at law; and that the defendant, John P. Sims, be perpetually enjoined from prosecuting his suits at law, instituted by him in the names of W. B. R. Farr and Richard O’Neale, against Benjamin F. Sims, executor of Nathan Sims, deceased, and that he pay the costs at law of said suits. It is finally ordered and decreed, that the costs of the proceedings in this Court be paid by the defendants, A. R. Aughtery and John F. Sims.

The defendants appealed, on the following grounds, viz:

1. Because the Chancellor erred in deciding that Mrs. Elizabeth Sims was not entitled, under the will of James Sims, to any portion of the proceeds of the plantation and labour of the slaves belonging to his estate, in her own right, and that purchases of property made by her, from the income of the estate, enured to the benefit of the estate of James Sims.

2. Because the Chancellor erred in deciding that the defendants were barred by lapse of time, when there has been a continued minority from the death of Ephraim Lyles, in 1824, down to the informal settlement of complainant’s testator and the defendants, and until a short time before the commencement of the suits at law, both the defendants and complainant commencing their suits at law at the same court.

3. Because the so-called settlement ought to be opened and is not binding on the defendants, as some of them were minors and others just arrived of age, ignorant of their rights, and were completely in the power of testator, and there was no showing on the part of testator of his actings and doings as agent or trustee of the defendants. The informal settlement was in October, 1842, and the suits in trover were commenced February 21, 1846, and the suits on the O’Neale and Farr notes on 20th February, 1846, and the suits of B. F. Sims, executor, v. John F. Sims et al. commenced 19th February, 1846.

4. Because the Chancellor erred in deciding that the O’Neale and Farr notes were included in the' settlement of October, 1842, and, therefore, paid by N. Sims, relying upon a mere presumption of evidence against the positive oath of the defendant, John F. Sims; and the decree is erroneous as to the facts of this branch of the case; first, as to the time that elapsed before John F. Sims instituted proceedings at law upon them. Secondly, as to his suffering himself to be sued on a note given to N. Sims, and the money forced out of him *115before he proceeded on the O’Neale and Farr notes, &c. and there are no such items in the said settlement as these notes.

5. Because there was a plain and adequate remedy at law on every branch of the case, and there was not such a community of interest as authorizes all the parties, defendants, to be included in one bill; and, therefore, this Court cannot entertain jurisdiction.

6. Because the decree is against equity and evidence; and fiom the case made by the pleadings and evidence, the injunction ought to be dissolved and the bill dismissed, or an accounting be had between the parties.

Herndon, for the motion.

*A. W*Thomson, contra.

Dargan, Ch.,

delivered the opinion. — In the natural order of discussion, the first question on this appeal is, whether the Chancellor, who tried the cause on circuit, has adopted the proper construction of the will of James Sims, sen. I will not repeat the clause in question, which has been quoted at length in the circuit decree. It is, substantially, as follows: He directs that all the residue of his estate shall remain in the possession of his wife during her life, or widowhood, under the direction of his executors, with a discretionary power, on their part, to deliver any portion of it, as a loan, to any of his sons, with the exception of his son James, who was inhibited from receiving any part of the negro property. After the death of his wife, “all such estate,” (that is, the estate which he had previously directed to be left in the possession of his wife,) *11 with the increase ar'sing*thereon” was to “ be collected together,” and appraised, and equally divided among his four sons, Matthew, John, Nathan and Reuben; they paying to James one-fifth of the appraised value of the estate.

The widow, Mrs. Elizabeth Sims, from the income of the estate thus left in her possession, purchased two negro girls. These negroes she, at first, acknowledged to belong to the estate of her husband; but, afterwards, disagreeing with her children, she asserted her own independent right to the negroes. She resolved to dispose of them and their issue, theii four in number, by her last will and testament. This she did ; and bequeathed them to Ephraim Lyles, whom she appointed as her executor, and, if he should die without lawful issue, then she gave the same negroes to Hopkins Sims.

The question, in the first place, is, whether these negroes belonged to the estate of James Sim, sr., or to the estate of Eli-beth Sims — and that involves the question, what estate, or interest, did Elizabeth Sims take in the estate of her husband, *116which he directed to be left in her possession1? It will be remarked that the will gives her nothing in direct terms. ; Whatever she takes, must be given to her by implication. And there is another feature in the will equally clear. Whether she takes a life interest, or merely a maintenance and support, she takes no legal title to any portion of the estate, but merely an usufructuary right, or interest. But the question is, whether she was entitled to the whole income, or only enough thereof to afford her a comfortable maintenance and support. If she was entitled to the whole income, then the negroes, purchased with a portion of it, became her own property. And, if she was only entitled to a . support, the negroes purchased with the rents and profits of the testator’s estate, will, of course, in equity, be regarded as the ptoperty of the estate. Though the interpretation of this part of the will is, in my view, not free from embarrassments, I incline to think that the construction adopted by the Chancellor, is the best that can be given. The inquiry, in such cases, must always be, what did the testator mean? In this instance, the testator directed that *“*the residue of his estate, of what nature soever, should remain in the possession of his wife,” with a power, on the part of his executors, (of the nature of a power of appointment.) to deliver any part, or all of the estate, to either of his four sons named, as a loan, under certain restrictions. At her death, he directs that “ all such estate,” that is, all “ his estate of what nature soever,” being the estate that he left in the possession of his wife, “ with the increase arising thereon,” should *“*be collected together,” appraised and divided. Were the person in whose possession he had thus left his estate, other than his wife, it would be difficult to come to the conclusion, or to imply that anything whatever was intended to be given by these terms, to such person. I think that the implication rests solely on the relation which the testator bore to the person who was to have the possession, and the moral obligation to provide for the support of his wife. I could not do less than to imply this much in her favor. ’ But, as the implication rests solely upon the moral obligation, and it cannot be said that this extended farther than to provide for her a comfortable support and maintenance, it would seem that the implication should not be extended farther.

But what does the testator mean when he directs that all such estate as he had left in the possession of his wife, *with the increase arising*thereon, should, at her death, be collected together, be appraised and divided? And, especially, what does he mean by the phrase “ *with the increase arising*thereon?” It is urged that these words mean the natural increase of the slaves. It would be an awkward and unusual form of expression, to speak of the *increase arising on**117*slaves.*It is usual to say the natural increase, or issue of slaves. If the testator *had said*“the increase arising on the slaves,” the words would, of course, mean nothing else the issue of the slaves. But the testator has not so expressed himself. If he had so intended, it would have- been natural and easy for him to have done so, and in forms of expression more appropriate than that employed in this clause. The word *increase*does not, *ex rei*termini, import issue, or increase in the way of natural procreation. But it is a general term, and, when applied to estates or property, and unexplained by the context, means all species of augmentations and additions, whether from natural procreation, crops, rents, interest, or dividends. It does not appear in this instance, as explained by the context, to have been used in the restrictive sense, but we are warranted the rather, by the context, to suppose it to have been used in the general sense. If there had been bank stocks, and choses in action, flocks and herds, among the property, which the testator left in the possession of his wife, (and this, to some extent, may have been the fact,) would it be said that the accretions, or “ *the increase arising*thereon,” or so much thereof as was not consumed in support of the wife, ought not, under the provisions of the will, to have been brought into the division?

This is the result of my best and most deliberate judgment, though, as I have before stated, I do not think that the construction which has been given is free from difficulty.

When the judgment of the Court must be given upon a construction not entirely satisfactory, it is gratifying to know that the judgment may be supported upon other grounds, and upon arguments that are invincible. We will now suppose the negroes in controversy to have been the property of Mrs. Elizabeth Sims, at the time of her death. Conceding this, these complainants are not entitled to recover the negroes. Mrs. Elizabeth Sims died in March, 1820, and the defendants have been in the unbroken possession of the negroes, claiming them in their own right, and adversely to the plaintiffs, from the death of Mrs. Sims to the present time. Their adverse possession has continued for about twenty-five years before the commencement of this suit. This lapse of time will give rise to all the presumptions that may be necessary to consummate and quiet the title of the defendants to this property. On this subject, the Chancellor, following strictly the course of the decisions, makes these observations: “ After a possession of twenty-five years,” he says, “the Court will presume a sale, by the executor, for the payment of debts, an administration, *de bonis*non, after Lyles’s death, a sale by such administration, or almost anything else, in order to quiet the long possession.” This is strong language; but not stronger than is warranted by the authorities, or demanded *118by a stern and imperative public policy. In regard to property not the product of manual labor, there is, perhaps, no title extant, in any part of the world, that could withstand the searching scrutiny of justice, and which, if traced to its origin, would not be found to be based upon fraud, rapine, spoliation or conquest.

This is especially true in relation to property in slaves. But we do not pause to inquire into the rights of the oiiginal captors to remove them from their native and desert homes, nor into the legality of all the intermediate transfers, since they were landed from the slave-ship upon our shores. The lands in America are not less the property of their present possessors, because the bold cavaliers of England and Spain seized them at the point, of the sword, or because William Penn and the Pilgrim Fathers acquired them from the simple aborigines, by more peaceful, but not much less unconscien-cious means. And, to go farther back, the title of the aboriginal tribes, who were in possession of the country at the time of its discovery, was acquired, (certainly, in some instances, and probably in all,) by the same means that were employed to oust and root them out. The same necessity that dictates the recognition of the *de facto*rights of nations and of governments, as to their territorial possessions, must prevail, more or less, among the members of social and political communities. Hence, among all people, where the rights of property are respected, some importance is attached to the mere fací of possession. Among rude tribes, simple occupancy is considered a sufficient title. In civilized communities, possession is regarded as only *prima facie*evidence of right. But, still, the necessities and repose of society make it the policy of the law to adhere to the principle of *de facto*right. For, when a possession, which, in its inception, was merely *prima facie*evidence of title, or which, in fact, may be pioved to have been wrongful, has continued for a sufficient length of time, it becomes right and perfect, as if acquired under all the formalities and solemnities of the law. The law requires diligence in the assertion of a right by legal actions. Life is short, parties and witnesses are mortal, memory is frail, written muniments are spread upon perishable materials and are subject to many accidents, and time throws a veil of obscurity over transactions of the distant past. Under circumstauces like these, is it either unreasonable or unjust, that he who has a claim should be required to assert it within a limited time? If he goes to sleep, and suffers his claim to lie dormant, can he complain if, when he wakes up, the Courts refuse to entertain his complaint?

To quiet titles founded upon possession, we have two systems of rules, that are different in their character, and the extent of their operation. Statutes of limitations are a part *119of the *lex fori.*When the bar of the statute is set up by plea, Courts do not, in general, affect in the judgment to decide upon the right or title of the parties, but simply refuse their' remedial action. I say that this is the general rule. For by the provisions of *our*own statutes of limitations, and the judicial constructions which have been put upon them, a party who has held lands or chattels in possession for the statutory period, is considered to have acquired a good title, upon which he can himself maintain his action. The statutes of limitations in South Carolina do not extend to all cases. They do not bar actions upon specialties, or upon decrees and judgments, or suits in equity. There are provisos also, by which the rights of persons under certain disabilities are saved. Though the Court of Equity following the law have adopted the equity of the statute, and applied it to cases where the cause of action is of a legal character, and in fact, to all cases where a Court of law would be bound by it, (except where there is some peculiar countervailing equity,) yet these statutes do not afford sufficient relief against the prosecution of stale and antiquated demands; nor are they of any avail, in many instances, to prevent the disturbance of titles consecrated by a long continued possession. Hence we have another system of rules, founded upon what is called the doctrine of legal presumptions, which prevail alike in Courts of Law and Equity, and which are eminently subservient to the quieting of titles, and the prevention of litigation arising upon obscure and antiquated transactions. If these legal presumptions require a louger period than statutory bars to acquire force -and effect, they are more general in their operation. They are highly conducive to the peace of society, and the happiness of families; and relieve Courts from the necessity of adjudicating rights so obscured by time, and the accidents of life, that the attainment of truth and justice is next to impossible. Whenever things have fallen into this condition, it is a good and a wise rule, that would respect the possession, and leave it undisturbed as the legal test of right and title.

These legal presumptions, by which conflicting claims and titles are set at rest, I have endeavored to show are natural and necessary. They spring spontaneously out of the institution and relations of property. As to the precise time at which they arise, each independent community must judge for itself. We have adopted the law of the mother country. In South Carolina, as in England, by the lapse of 20 years without admissions, specialties and judgments are presumed to be satisfied, and trusts discharged. Twenty years continued possession will raise the presumption of a grant, from the State, of deeds, wills, administrations, sales, partitions, decrees, and the Chancellor has said of almost anything, that *120may be necessary to the quieting a title which no one has disturbed during all that period. And it is the opinion of the / Court, that the rule has been well applied in this case.

There is another view in favor of the right of the complainants that may be superadded. The suits in trover brought for the recovery of these negroes, which have been enjoined, are brought in behalf and in the name of A. R. Aughtery, administrator of Hopkins Sims. He claims the negroes by virtue of a limitation in the will of Elizabeth Sims, by which he was to have the negroes, in the event of the death of Ephraim Lyles without. &c. My opinion is, that the limitation to Hopkins Sims is void for remoteness. I will not quote the words of the bequest, nor pause here to discuss this point. I will suppose that the limitation was valid. Ephraim Lyles was the executor of Mrs. Sims. He qualified, and brought “suits in trover against MatthewSims, Nathan Sims and Reuben Sims, to recover from each, such of the negroes embraced in the will of Elizabeth Sims, as had fallen into their possession respectively.” This was about the year 1821. He got a verdict against Matthew Sims, and an appeal was taken, which was dismissed. On the 7th February, 1824, a bill was filed by Matthew Sims and others, against Ephraim Lyles, executor of Elizabeth Sims. The bill was for an injunction of the suits at law, on the ground, that the negroes did, in equity, belong to the estate of James Sims, sr., having been purchased with the income of his estate. On the 14th of February, 1824, an interlocutory order for an injunction was granted. In October, 1824, Lyles died, and the suit abated. It is said that Hopkins Sims, the alleged remainder man, is not barred by the statute of limitations, because he was an infant at the death of Lyles, and has only attained the age of 21 years within four years before the commencement of his action. But Ephraim Lyles, as the executor of Elizabeth Sims, represented not only the estate given to himself in the negroes by the will, but also that given to Hopkins Sims. He never had them in possession, but was seeking, by actions instituted in his character of executor, t.o recover the negroes from persons then in possession, who were the present complainants. The statute of limitations commenced to run against Lyles when he first qualified as executor. It continued to run on, notwithstanding there was no grant of the administration with the will annexed. The doctrine is (except in the case provided for in the Act of 1824,) that where the statute has once commenced to run, it will continue to run, notwithstanding subsequent disabilities. The claim of Hopkins Sims to the ne-groes, if he ever had a title, is barred by the statute of limitations.

In regard to that branch of the case which relates to the *121suits brought by John F. Sims, against Benjamin F. Sims as the executor of Nathan Sims, I have but little to say, besides expressing my concurrence with the views taken by the presiding Chancellor. The effect of a settlement in full *is, prima*facie, to bar all claims which might or should have been brought into the settlement. The case is strengthened, when, as in this instance, the party who afterwards prefers an omitted demand, is the party who is brought in debt, is required to give his note, is sued upon it, is pressed for payment, and pays it with great difficulty. And more; he slumbers over his omitted claim for years, and waits until the other party to the settlement is in his grave. He then wakes up, and says he has demands which were omitted in the settlement, for the omission of which he is able to give no satisfactory explanation.

If these had been admitted and introduced in the settlement, he would not have fallen in debt at all, for he had enough then to have balanced the account of Nathan Sims. If the sums were small, there would not be so much difficulty in believing that the O’Neall and Farr notes were omitted from forgetfulness or oversight. But the difficulty is enhanced, when the amount of the claim, (between $2,000 and $3,000) is considered. I am satisfied that the Circuit Court was right in holding John F. Sims concluded by the settlement.

The objection to the jurisdiction of the Court, made in the defendant’s fifth ground of appeal, cannot be sustained. In the case of *E. Lyles*v. *Matthew Sims,*decided by the Law Court of Appeals in 1833, it was held that the legal title in the negroes was in Elizabeth Sims, and after her death in her legal representatives ; and that this was the case, whether Elizabeth Sims took the whole income of the testator’s estate, under the will, or only a support and maintenance during her life. This latter question the law Court declined to decide, considering it as falling within the peculiar province of the Court of Equity. The complainants had a right to come into this Court to raise that question. As to the actions at law upon the O’Neall and Farr notes, the jurisdiction of the Court can be maintained on the ground that the complainants had a right to come into this Court, to seek a discovery from John F. Sims, (who was prosecuting said actions) in regard to the circumstances attending the settlement. And the Court, having entertained the bill for this purpose, had a right to retain it for judgment.

The other objection embraced in the defendant’s fifth ground of appeal, namely, that the bill was multifarious, is well founded. The actions at law upon the notes, and the actions of trover, had no such connection as to entitle the complainants to blend them in the same suit. They were entirely distinct transactions ; the one relating to the estate of James *122Sims, si\, and the other to the estate of Nathan Sims. But the objection should have been taken at an earlier stage ol the proceedings, and by plea. The defendant cannot now, as a matter 0f right, make that question. If the defendant does not choose to make that defence, in the proper form, or waives it, the Court would not be precluded from noticing it, and founding its judgment upon it. But it is a matter of discretion ; and the Court does not think this a proper occasion to notice that objection on its own motion, and to dismiss the bill, and to send away the parties to commence another course of litigation.

The appeal is dismissed, and the decree is affirmed.

Dunkin, Ch. concurred.

*Decree affirmed.*