#### *John Pettus and others*vs. *W. J. Clawson and others.*

Where on the last annual return of an administrator with the mil annexed, the ordinary struck a balance, and gave him a certificate that the balance thus ascertained was the sum due by him on his *accounts,*— held, that such act of the administrator, haring been done in a public office, open for the information of parties interested, and purporting to be a final settlement, gave currency, from its date, to the statute of limitations; and that such of the legatees as were then adult, or, being infants, failed to prosecute their rights against the administrator within the statutory period after arriving at age, were barred.

Upon demands not bearing interest at law, equity usually allows interest, but may its discretion withhold it.

*93*As laches*cannot be imputed to an infant, be should, it seems, always be allowed interest where he prosecutes his rights within the statutory period after arriving at age.

In charging an administrator with interest, not only should all funds received in the current year be regarded as unproductive until the close of it, but all expenditures in the course of the year should be regarded as made before the balance is struck, to bear interest.

Before an administrator should be charged with notes marked by the appraisers on the inventory as good, there should be some proof of their collection, or of negligence in collecting.

*Before*Wardlaw, Ch. *at YorJc, June,*1851.

Wardlaw, CL This suit is brought by the legatees and representatives of legatees of J. D. O. K. Pettu's for an account and settlement of his estate.

J. D. 0. K. Pettus died October 29, 1821, leaving of force his will dated March 24, 1819, whereby he gave his estate, after the payment of his debts, in unequal portions to his wife, Violet, and his two children, living at the date of the will, Stephen and Hannah M. A. Another son, John, was born to the testator May 16, 1821, about 3 J years after the birth of Hannah, and 5 years after the birth of Stephen. Stephen Pettus, senior, administered with the will annexed, and on January 8, 1822, sold the whole estate, except two negroes, Ellick and Venus, which, after being hired out one year, were delivered to the widow, Violet, under the bequest of them to her for life. The said administrator made annual returns of his transactions for several years, not including, however, charges for interest on annual balances, nor credits for commissions. In the last of these annual returns, on January 5, 1829, the balance appearing against the administrator on Ins whole receipts and expenditures, is $288 96f-, and the ordinary gave the administrator a certificate that this sum was the balance due. Violet Pettus removed with her children to North Carolina in 1822, and died there February 21,1829.' No administration here has been taken out on her estate. Her sealed note for $336 15, for purchases, at the administrator’s sale of her husband’s estate, is produced as unpaid. In 1845, Thomas Roswell, who had married *94Hannah, daughter of testator, cited the administrator, Stephen Pettus, before the ordinary to account, but no decree was made by the ordinary. Stephen Pettus, senior, died in 1846, and defendant, Clawson, administered upon his chattels and credits. Stephen Pettus, junior, and Hannah Roswell have also died at dates not appearing. The original bill in this case was filed May 14,1847, by John Pettus, Thomas Roswell and his infant daughter, Mary Y. Roswell, all residents of North Carolina, against W. J. Clawson, administrator of Stephen Pettus, senior; and afterwards, in 1848 or 1849, on a day not appearing by my copy, a supplemental bill was filed by J. C. Smith, as administrator of Hannah Roswell and Stephen Pettus, jr.

The commissioner of the Court being defendant, the matters of account, all equities being reserved, were referred specially to J. B. Smith, a solicitor of the Court. To his report, and to the accompanying evidence in writing, I refer for any further statement of the facts which may be necessary.

The report of the special commissioner is well considered and clear, but I think fails in giving proper influence to the lapse of time. Applying rules fit enough for recent administrations, the commissioner has attained the startling result, that rhe estate of Stephen Pettus, senior, was indebted, on June 17, 1851, on his administration of the estate of J. D. O. K. Pettus, in the sum of $4,268 10, and this he distributes, on principles which seem unexceptionable, among the widow and children of testator or their representatives. At the day of filing the bill in this case, which, when filed, presented regularly the claim of John Pettus only, there had been the lapse of more than 25 years from the grant of the administration to the defendant’s intestate, more than 18 years from the last authentic act of the intestate in the administration, and five years, lacking a day, from the maturity of the statutory legatee, the youngest of the original parties in interest; and, in the meantime, trustee and beneficiaries, except one, had all died.

The citation to account before the ordinary does not obstruct the immunity from time, because it was abortive and not pursued *95within reasonable time by subsequent proceedings, and instituted irregularly by tbe applicant alone, if bis wife were alive, and not officially if sbe were dead. Acts done in a public office, open for tbe information of parties interested, must be taken notice of by tliem; *(Payne £ Harris,*3 Strob. Eq. 42); and if Stephen Pettus’s return to tbe ordinary of January 5, 1829, bad purported more clearly to be a full execution of bis trust, tbe claims of all tbe plaintiffs might have been considered as barred by tbe statute of limitations, except that of John Pettus, saved by a day. Under all tbe cbcumstances, the claims of tbe plaintiffs must *he*restricted to tbe narrowest limits consistent with tbe rules and principles of tbe Court. In my judgment, tbe plaintiffs are not entitled to more than, taking tbe burden of proof, to surcharge and falsify tbe accounts current of Stephen Pettus, in order to ascertain tbe amount of tbe surplus be owed, as administrator, to the legatees, on January 5, 1829, allowing the defendant tbe same privilege of correction. Thus interest against tbe administrator to tbe time mentioned and commissions in bis behalf, and other receipts and expenditures by him, actually proved, may be taken into tbe calculation, and other mistakes may be corrected. I am not satisfied with the mode of calculating interest pursued by tbe commissioner, in ascertaining the balance due on January 5, 1829, although be seems to be justified by tbe case of *Davis*vs. *Wright,*(2 Hill, 560). It is so difficult to save tbe most honest and diligent trustee from loss by tbe moth of interest, that not only should all funds received in tbe current year be regarded as unproductive until the close of it, but all expenditures in tbe course of tbe year should be regarded as made before tbe balance is struck, to bear interest; such mode of calculation is adopted in tbe offices more particularly under my observation (a).

I am further of tbe opinion, that, under tbe circumstances of this case, tbe sum thus ascertained to be in tbe hands of the administrator, on January 5, 1829, should bear interest only from tbe filing of the bill. Interest is not incident in strict right to *96more delay of payment, unless it be secured by contract, or follow a breach of trust. *{Bell*vs. *Free, 1*Swan, 90; *Gfittins*vs. *Steele,*lb. 199; *Payne Karris,*3 Strob. Eq. 44; *Smith*vs. *Runt,*3 Rich. Eq. 466; *Davis*vs. *Wright,*2 Hill, 667.) In the last case it is said, “ Interest is given as legal damages for the unlawful detention of a debt; can there be any unlawful detention when there is no one authorized to receive ? It is clear there cannot be; when a day is fixed for payment of an ascertained sum, and it is not then paid, interest is generally the necessary consequence of the neglect; but to this position are some exceptions. In this case, when was the debt payable ? *‘ On demand ’*is the answer. There could be no demand until administration was granted, and hence interest was not recoverable sooner.” So, in the present case, the lack of authority for any person to receive the shares of the infant legatees, and their own *laches,*after maturity, in demanding payment, justify the exercise of a sound discretion in refusing interest.

The defendant filed various exceptions to the commissioner’s report, and I have already availed myself of the sixth objection to the general principles of the report, to express my views on the equities reserved. I shall notice cursorily some of the others, principally for the sake of illustration.

The first objects to the allowance of $128 89 of notes, and $30 60 of accounts, marked by the appraisers on the inventory as good, not charged by the ordinary, nor proved to be collected by the administrator. I think plaintiffs are bound to furnish some proof of the collection of these demands, or of negligence in collecting.

The second objects to the allowance of certain sums received on *fi. fas.*of intestate, and another sum for rent. These items seem to be fairly proved by plaintiffs, in surcharge of the accounts current.

The third objects to the omission of various items of credits allowed by the ordinary. _ The 'omission was not verified to my satisfaction in most of the instances. The payment of $66 72 on *97Alexander’s note was sufficiently vouched, and was omitted by inadvertence and should be allowed. The. items of $683 64 and $78, vouched by the receipts of Yiolet Pettus, as paid for the board of her children and medicines for them, are not sufficiently falsified by the proof that her relations and neighbors are ignorant and distrustful of her receiving these sums. The other reason assigned for rejecting these items, that her share in the estate should be set off against these claims, cannot operate in a suit to which she is no party. These should be reconsidered.

The fourth objects to the exclusion of interest accruing, after the sale bill fell due, on demands bearing interest, and the costs paid by the administrator and allowed by .the ordinary. On this point the commissioner has followed the general rule, but it deserves his reconsideration, whether actual payments, so long made and so proved, should be set afloat on a naked presumption. It would be more satisfactory to have express evidence that the administrator, with funds in his hands, did not promptly pay, when presented, demands so obviously just as to need no litigation. An original debtor is in default if he does not punctually fulfil his contracts; but one made a debtor by relation, may know nothing of the justness of the claims upon him, or even of them existence; some of the debts, upon which the interest (which has been rejected) accrued after the sale notes fell due, were owing to creditors in another State. We must not expect from trustees more than the ordinary diligence of men in their own affairs.

The fifth exception complains that the commissioner has placed the debts and credits in years different from those in which they are set down in the accounts current, audited by the ordinary. As I understand the matter, these changes have been made in conformity to the dates of the vouchers themselves, and amount merely to the correction of mistakes.

It is ordered and decreed, that the report be recommitted to the special commissioner, to be reformed according to the principles of this opinion, with leave to either of the parties to offer additional evidence.

*98The complainants appealed, on the following grounds, viz:

1. Because, according to the decree, interest on the amount in the hands oi Stephen Pettus, administrator of J. D. O. K. Pettus, on 5th January, 1829, is only to be calculated from the date of the filing of the bill in this case — when it is submitted that interest should be charged from said 5th of January, 1829, and that under the circumstances of the case, as proved, it would be against equity and right to restrict interest as allowed in the decree.

2. Because, at all events, interest should be allowed from the time of the citation to account before the ordinary, and it is respectfully submitted, that the Chancellor was mistaken as to the fact of said citation being irregularly issued and not prosecuted with due diligence, it being proved that both Boswell and wife were parties to the proceedings in the ordinary’s court, and that the bill in this case was filed shortly after the death of Stephen Pettus and in due time.

3. Because, it is submitted, that the mode of computing interest adopted by the referee in this case is correct and proper ; and that an administrator ought not to be permitted, having funds in his hands to pay debts, to suffer interest on these demands to accrue against the estate, and to derive benefit to himself from his negligence.

4. Because his Honor held that the complainants should furnish evidence that Stephen Pettus, administrator, had collected the notes and accounts inventoried by him as good, when, it is respectfully submitted, the burthen of proof should be thrown on the defendant, and the complainants showed enough by producing the inventory.

5. Because, it is submitted, Ms Honor erred in holding the defendant was entitled to a credit of $683, and also of $78 for charges of Violet Pettus against her children for board and medicine, when there was not only the absence of all proof to shew the payment of these sums, but abundant evidence to shew said children were maintained by their grandfather, and not by Violet Pettus.

*996. Because, if said sums of $683 and $78 are allowed as credits to tbe defendant, the same should be taken from the share of Yiolet Pettus, and the complainants should be charged with no part of same.

*Williams,*for appellants.

*Witherspoon,*contra.

(a)

**Vide *Dixon*vs. *Hunter,*3 Hill, 204; *Duncan*vs. *Tobin,*Chev. Eq. 143.

The opinion of the Court was delivered by

DáRGáN, Cu.

J. D. O. K. Pettus died 24th October, 1824, having duly executed his will, which bears date the 24th of March, 1819. The testator disposes of his whole estate in unequal proportions, in favor of his wife, Yiolet, and his two children then *in esse:*namely, Hannah, born in 1817, and Stephen, born in the year 1816. After the execution of the will, to wit, on the 16th May, 1821, John, another son, was born to the testator; for Avhom, as born after its execution, the will made no provision. As a pre-termitted child, (according to the rules of law upon the subject,) John is entitled to bo let into the possession and enjoyment of a portion of his father’s estate disposed of by the will. His share is to be raised by contributions from the legacies given to the other children; and in amount must equal the average of those legacies.

One Stephen Pettus became the administrator, with the will annexed, and on the 8th January, 1822, sold the whole estate, with the exception of two negroes, which were disposed of according to the bequests of the will. He made annual returns of his accounts with the estate, to the ordinary, for several years; in the last of which, made on the 5th January, 1829, the balance appearing against the administrator on account of his whole receipts and disbursements, is $288.96. The ordinary then gave him a certificate, thatthis sum was the balance due by him to his testator’s.estate. Yiolet Pettus, (the testator’s widow,) removed with her children to the State of North Carolina in 1822, where she continued to reside until her death in February, 1829. The children, and the heirs at law and distributees of those who are dead, have resided in that State ever since. There has been no administration upon the estate of Yio-*100let Pottus. In 1845, Thomas Roswell, who had intermarried with Hannah Pettus, (the daughter of the testator,) cited Stephen Pettus, the administrator, before the ordinary to account; but the ordinary made no decree, and the proceedings had no result. Stephen Pettus, jr., and Hannah Roswell also died before the institution of this suit; and their representatives are parties to this bill, claiming an account of the administration of the testator’s estate. Stephen Pettus, sen., also died, (in 1846,) and Clawson, the defendant, is the administrator of his estate ; and resists the claim to account on various grounds; of which, those that are deemed material, will be hereafter considered. There has been a report upon the accounts from a special referee, (the Commissioner of the Court being the administrator of Stephen Pettus, senior.) Exceptions were taken to the report: and from the Chancellor’s decree upon the report and exceptions, an appeal has been brought before this Court.

I will not discuss the various grounds of appeal *seriatim;*but will confine my observations to such of the questions which they raise, as I deem proper for serious consideration.

The main issue involved in the case, is whether the parties who are seeking an account of the administration of the testator’s estate, are, under the circumstances of the case, entitled to an account at all. The original bill in the cause was filed May 14, 1847, by John Pettus, Thomas Roswell, and his ipfant daughter Mary V. Roswell, (a daughter of the testator’s legatee, Hannah Roswell,) all residents of North Carolina, against Wm. J. Claw-son, the administrator of Stephen Pettus, senior. And at a subsequent day, (not appearing to the Court,) a suppl mental bill was filed by J. C. Smith, as administrator of Hannah Roswell and Stephen Pottus, junior. This makes the record complete, as to the proper parties who should be before the Court.

Rut it will bo perceived, that from the date at which the administration was committed to the defendant’s intestate, more than the quarter of a century had passed away; and more than eighteen years had elapsed from the date of the last act of administra*101tion, when Stephen Pettus, senior, made his last return to the ordinary, alid when that officer, on what purported to be a final settlement, struck a balance on his accounts, and gave him a certificate, that the sum of $288.96 was due by him to his testator’s estate.

I do not say, that this last accounting and settlement before the ordinary was a decree. I do not think it was. It was obviously *ex parte,*and cannot have, and probably was not intended to have, the force of a judgment. But it was a transaction which purported to be a final settlement of the estate. “ Acts done in a public office,” as the Chancellor in his decree has said, in an office proper for such acts, and where they may of right be done, and open at all times “ for the information of parties interested, must be taken notice of by them.” And the doctrine is fully sustained by the authority cited, *(Payne*vs. *Harris,*3 Strob. Eq. 42;) to which others might be added. The Chancellor proceeds to say, <£ if Stephen Pettus’ return to the ordinary of January, 1829, had purported more clearly to be a full execution of the trust, the claims of all the plaintiffs might have been considered as barred by the statute of limitations, except that of John Pettus, saved by a day.” In the opinion of this Court, the Clranccllor did not give sufficient force and significancy tó the facts upon which the question as to the statute of limitations will turn. I regard those facts in a stronger light. They speak' an unequivocal language to the effect, that the administrator had wound up the estate, and had fully executed the trust, with the exception of the balance acknowledged to be due. In *Brockington*vs. *Camlin,*(4 Strob. Eq. 196,) whore the administrator had fully administered the estate, with the exception of some negroes, to which, in the presence of the distributees, ho asserted a personal and independent claim, the assertion of the claim was hold to have given currency to the statute. Suppose that in this instance, the administrator had served the parties in interest with a copy of his last account and return; or that he had given them notice in writing, or by parol, that he had fully executed his trust, with the exception of the *102balance .acknowledged to be due, could it be doubted, that tbe effect would have been, to have divested him of his fiduciary character, except as to that balance, and to have placed him, to use the quaint but expressive language of some of the authorities, *“*at arm’s length,” with the beneficiaries of the trust? Well; this, or a similar declaration, the administrator did spread upon the records of the ordinary’s office. And if there be any reason or force in the decisions, that acts done in a public office must be taken notice of by the parties interested, the same result must follow.

Independently of the statute of limitations, it apipears to me, that except as to the claim of John Pettus, the demand for an account is, under the circumstances, too stale and antiquated to meet with favor in this Court. It is against good policy to lend too ready an ear to an application to rip up these long standing settlements and accounts. The Court cannot proceed to render judgment, except at the risk of doing groat injustice. The transactions under investigation are obscured by the lapse of many years. The administrator is dead. He died under the belief, founded on what was undoubtedly a *bona fide*settlement before the ordinary, that he owed his testator’s estate only $288.96, with the subsequently accruing interest. His case has been defended by his own administrator, aided only by the evidence which the'-1 wreck of eighteen years leaves at his command. Under these circumstances his accounts have been examined, and on June 17, 1851, the referee reports a balance due by the estate of the administrator of J. D. O. K. Pettus of $4,268.10. This is a most startling result, and cannot but strongly impress one’s mind, with the danger of doing great injustice in these investigations. The case itself is aptly illustrative of both the benignity and wisdom of that rule, which affords to persons called upon for a settlement of stale and antiquated demands, the protection of a legal oblivion. It is the opinion of this Court, that the Chancellor should have sustained the plea of the statute of limitations, and dismissed the bill against all the complainants, except John Pettus. The case of John Pettus stands upon a different footing, as to *103this ground of defence. He was an infant, and on account of his residence without the limits of this State, was entitled to fire years after he came of age to bring his suit. He filed his bill one day before the removal of his *disability;*which was of course sufficient to save his rights. The case must'go on as to him, and he will be entitled to recover such an amount as he would be entitled to recover if the claims of his co-plaintiffs had not been considered as barred.

There is only one other point which it is my purpose to discuss. The Chancellor, in his decree, has disallowed the charge of interest, except from the filing of the bill. He has conclusively shown, by the authorities which he has cited, that the allowance of interest is a matter within the discretion of the Court. Equity allows interest upon demands, as to which, interest is not recoverable at law; upon the principle, that it would be inequitable to withhold it; and in cases of trust, upon the maxim which prevails in this Court that a trustee shall not be permitted to make a profit for himself out of the trust estate. This Court having imposed upon itself rules for the allowance of interest on the ground that equity demands it, can refuse, and has refused it, where in the judgment of the Court, there are equitable ciccumstances which forbid its allowance. The equity for interest prevails, unless there he some stronger countervailing equity.' The authorities abundantly prove, that the allowance of interest in this Court is only a general rule; and that there are exceptional eases. It is a discretion belonging to the Court, however, which, in my judgment, if I may be allowed to use an expressive tautology, should be very *discreetly*exercised.

So far from impugning, I sustain the doctrine of the circuit decree in this respect considered as an abstract proposition. The claims^ set up on behalf of the representatives of Hannah Roswell, and Stephen Pettus, have been disposed of, and disallowed. If the claims on their part had not been considered as barred, and it were necessary to state an account ’as *to*them, I am not prepared to say, that it would not be proper, as the Chancellor decreed, to *104withhold the interest, except from the time of filing the bill. In *Smith*vs. *Hunt,*(3 Eich. Eq. 465,) great *laches*on the part of the complainants in the prosecution of their demand for an account, until the interest account had swelled to a great and disproportionate magnitude, was held to be a sufficient reason for withholding a large portion of the interest. In reference to those parties, whose claims have been dismissed, this enquiry would be speculative, and outside of the record. But it is very material to enquire, whether under any circumstances, interest can be withheld from John Pettus, who was an infant, and who filed his bill for an account, within the five years allowed him by the statute of limitations after the removal of his disability. *Laches*is certainly not predicable of an infant before he attains his *majority;*nor is it imputable to him during the period, in which the statute afterwards allows him to bring his suit. There is no principle or precedent, so far as I can perceive, which forbids an interest account to be stated in favor of John Pettus. In stating the accounts, interest must be allowed according to the rules which prevail in this Court on that subject.

In regard to the other questions raised in the grounds of appeal, it is sufficient to say, that this Court concurs with the Chancellor, and is satisfied with the circuit decree.

It is ordered and decreed, that the bills be dismissed as to all the complainants in the cause, with the exception of John Pettus.

It is further ordered and decreed, that so much of the circuit decree, as disallows interest in favor of John Pettus be reversed, and that the referee, in re-stating the accounts, as is herein order-dered to be done, do charge interest on the administration accounts of Stephen Pettus, senior, according to the usual practice of this Court.

It is further ordorod and decreed, that the report be referred back to the special referee, and that he re-state the accounts, and make his report conformable with this decree, and with the circuit decree so far as the latter is not reversed or modified by this appeal decree.

*105It is further ordered and decreed, that in all respects, in which the circuit'decree is not reversed or modified by this decree, the said circuit decree be affirmed, and the appeal dismissed.

JOHNSTON, Dunein and Wardlaw, CO., concurred.

*Decree modified.*