#### *William Murrel et al.*v. *B. L.*& *J Murrel, adm'rs.*

Coujmbu,

May, 1848.

Lands conveyed by a father to his eldest sons, not to advance them, but declared by him to be, as in fact they were, in remuneration for their faithful and valuable services to him, were *held*not to be advancements, in the *sense in which the*statute uses the word.

Though a parent is entitled to the services of his children, while under age, he may waive his right and make those services the consideration of a contract or promise, and he may give property *Iona fide,*in the performance of such obligation of justice, without its being subject to a claim on the part of the other children to consider it in the light of *an advaneement.*

After distributees have had a settlement with the administrator, they have no right to open that settlement, except upon the allegation and proof of fraud, misrepresentation, concealment, or mistake of facts. And the bill should state the specific ground upon which it is sought that the account should be opened and relief be given, in order that the defendant may meet the case made in the bill fairly.

*Before*Johnston, Ch. *at Edgefield, June Sittings,*1847.

The following decree of his Honor contains all that is necessary to a sufficient understanding of the facts of the case :

*149Johnston, Ch. This is a bill filed by seven of the nine children of Randolph Murrel, against the remaining two, who administered on his estate.

The distributees had a settlement with the administrators, in the Ordinary’s office, on the 10th of January, 1846; on which. occasion the balances due by the administrators to their co-distributees, respectively, and *vice versa,*were struck, and settled by notes or money, and receipts executed.

On this occasion a fund of $1,000 was left in the hands of the administrators, the income of which was to be applied annually to the support and maintenance of the intestate Randolph Murrel’s mother, an aged, infirm woman, of about ninety-one years of age, upon whose decease the said fund was to be equally distributed among all the children of the intestate. With the exception of this fund, the settlement purported to be a full and final adjustment óf the estate of the intestate, and of the administration of the defendants.

On the 16th of April, 1846, the original bill in this case was filed, setting forth various particulars, in which it was alleged the plaintiffs were mistaken or deceived in their settlement aforesaid, by the administrators’ having failed to account for certain debts, which they owed the intestate, and for certain advancements in notes, money or other personalty, made to them, respectively, by the intestate ; by their having taken credit for certain expenditures, to which they were not entitled ; and by their having brought about the reservation of the $1,000, for the support of the aged grandmother of the parties, by a representation that the intestate had received part of his estate, under his father’s will, subject to a condition expressed in said will, that he was to support his mother, which obligation, it was alleged, the administrators represented as forming a charge' upon the estate in their hands.

The bill prayed that the settlement might be opened, and the account re-stated, by charging the administrators with the amounts improperly withheld by them; including the $1,000 reserved for their grandmother’s support.

The grandmother was, at this time, still alive. To this bill the defendants put in their answer denying every charge in the bill.

The grandmother then died; whereupon the plaintiffs filed their supplemental bill, stating that fact, by which, they suggested, they were certainly *now*entitled to the distribution of the $1,000.

But they also included in this supplementary matter an amendment to the original bill, in which they charged particularly that the intestate had conveyed to each of the defendants, a tract of land ; which they insisted should have been included in the settlement of January, 1846, and should *150now be charged as advancements, in reforming that settlement.

The defendants answered that they had offered to distribute the $1,000, on the death of Mrs. Murrel, and were still ready to do so. As to the conveyance of the land, they admitted the fact, which was well known to the whole of the parties at the settlement and not concealed from any of them at that time; but.the defendants insisted that the land was conveyed to them by their father, notas an advancement,but as a compensation and reward of their laborious services to him; they being the oldest of the children, and the only ones he had to work for the support of the family; and having by their toil contributed, while he was yet very poor, to give a start to his accumulations.

If it turns out, upon an examination of the testimony, that the settlement was fair and well understood by the parties, the original bill was filed without just cause, and the plaintiffs cannot avail themselves of subsequent circumstances, entitling them to a decree, to exempt themselves from cost, for having dragged the defendants into Court, prematurely and unnecessarily.

I take it, after a most attentive consideration of all the pleadings and all the testimony, that there has seldom been brought into this Court a more groundless set of charges than those contained in the first bill.

To demonstrate this would require a statement as voluminous as the pleadings and the proofs in this cause. It would require me to transcribe the pleadings and the notes of evidence. As these are in writing, and are as brief as any statement I can make, I shall refer to them as they stand, as the foundation of my conclusions.

The settlement made by the parties must stand in law, and ought to stand in justice, unless something was included in it, or excluded from it, through mistake, or in consequence of fraudulent concealment or misrepresentation. NoPa vestige of either of these is found in the evidence. The Ordinary, in fact, decided nothing in the case. The account was stated and truly and accurately calculated upon facts in which there was no disagreement among the parties, and upon facts most of which must have been understood and known by every party. Indeed, on the hearing, this was hardly disputed, except as to the $1,000 reserved for maintaining the grandmother.

With respect to this, the plaintiffs’ representation is that the defendants brought about the reservation by asserting that the necessity for it existed in the terms of the grandfather’s will. There is not a syllable of proof to support this. On the contrary the proof is that all the parties concurred in ■the desire that the grandmother should be supported out of *151the estate. There was no difference of sentiment among them upon this point.. The only question was as to thei amount of the fund necessary to effect the object, and the1 mode of applying it. One of them asked the Ordinary if he could not reduce the amount, and others of them preferred that each distributee should take his portion of the fund, and give his bond for his aliquot share of an annuity; but all eventually acquiesced in the amount and mode of support suggested.

Then as to the advancements. The parties went out of the Ordinary’s office, and conferred upon the subject; and came back with a statement of the advancements, upon which they had all agreed, and these were set down. This is, in' effect, the whole of the proof offered for setting aside the settlement.

The advancements of land are for the first time mentioned in the supplemental bill. It would deserve consideration, whether these conveyances, considered in the.light of advancements, were not concluded by this settlement. But my opinion is that the defendants are not accountable for the value of these lands. They were not *advanced*(in the sense in which the statute uses the word) by these conveyances, although the lands were *given*to them by their father.

The testimony is, that the sons were the oldest of the children. That the father was poor, and his other children young. That these boys *“*worked like negroes, and gave him a start in the world,” and that he repeatedly expressed an intention to give them each a tract of land, beyond a child’s share, in remuneration for his faithful and valuable services; and that after he conveyed these lands, he declared he had fulfilled the intention he had expressed.

Whatever may be the. accurate definition of an advancement (and it is not easy to frame one) these gifts, standing upon this consideration, do not fall within it. I suppose an advancement must stand clear of any such consideration.— It may, and I suppose always does, betoken the affection borne to the child advanced. That is the motive. But here the motive was not love, but justice. The act was not a gratuity, but a voluntary compensation ; *“*it was not of grace, but of debt.”

The result of the whole case is that the original bill was causeless, and would have been dismissed, but for the supervening death of the grandmother ; and that there is nothing in the supplemental bill that can be sustained, except the claim for the distributing the f>1,000. It is decreed that the defendants come to an account for the sum reserved out of the settlement of the 10th January, 1846, for the support of Randolph Murrel’s mother, and pay over to the respective distributees of said Randolph, their distributive portions thereof, and that the bill upon all other subjects be dismissed.

*152The plaintiffs to pay the costs of the amended bill, and the defendants those of the answer filed thereto; and the plaintiffs to pay all other costs in the case.

The plaintiffs moved the Court of Appeals to reverse, in part, the circuit decree, upon the following grounds:

1. That the lands conveyed by Randolph Murrel in his life time to his sons, were such advancements to them as are within the contemplation of the 3d section of the Statute of 1791.

*2.*That the settlement of the 10th January, 1846, referred to in the circuit decree, does not preclude the plaintiffs from claiming, or in any wise deprive them of the full shares of the estate of Randolph Murrel, to which they were entitled at his death, except as to the portions thereof that they have actually received, as their demands in this behalf have not been discharged by payment, or accord and satisfaction, or release, or submission to arbitration and award, or compromise, or in any other conceivable mode known to the law.

Carroll, for the motion.

Griffin & Bonham, contra.

Dargan, Ch.

delivered the opinion of the Court.

From the facts of the case, as reported in the bill, it appears that the distributees, who were the children of Randolph Murrel, being all of age and *sui juris,*had a settlement, which was stated for them by the Ordinary of the district, though not in the form of a decree, nor in his judicial character. The settlement was intended to be in full, and the parties gave discharges in full to the defendants, who were the administrators, with the exception of one thousand dollars of the funds of the estate, which by the agreement of all parties was to be left in their hands. Out of the interest of this sum, an aged grand-mother of the parties, who was without the means of support, was to be maintained during her life, and at her death the principal was to be subject to distribution, as a part of the estate of Randolph Murrel. This sum was ascertained and set apart, and left in the hands of the defendants. .All the rest of the estate was intended to be settled, and a distribution made according to the rights of the parties.

But the defendants, who were the two oldest sons of the intestate, had received lands from their father in his life time, which the complainants in this bill contend were advancements, and that the value of these lands, as advancements, was not included, but should have been included, in the aforesaid settlement. In this settlement, advancements were taken into the eslimate and were rendered in by the parties themselves. The lands given by the testator to the defendants were not on that occasion claimed to be considered in the light of *153advancements, though the consideration upon which they were given must, from the evidence, have been known to the, complainants. The consideration alleged by the father for the conveyance of these lands to the defendants, was that they Avere his oldest sons, and that he being poor, they had worked for him like negroes, and had greatly assisted in laying the foundation of his estate, and that they were fairly entitled, as a matter of justice, to an extra share. It also appeared, that during the time the services were being rendered the father held out promises of remuneration to his sons for their extraordinary exertions, to be realized in the distribution of his estate, and thus stimulated them to an uncommon degree of activity in his service.

The Chancellor, under this state of facts, considered that though a parent is entitled to the services of his children while under age, he may waive his right and may make the services of his children the consideration of a contract or promise, and that he may give property *bona fide*in the performance of such obligation of justice, without its being subject to a claim on the part of the other children to consider it in the light of an advancement. The Chancellor says “it would deserve consideration whether these conveyances, considered in the light of advancements, were not concluded by the settlement. But my opinion is that the defendants are not accountable for the value of these lands. They Avere not advanced (in the sense in which the statute uses the word) by these conveyances, although the lands were given to them by their father.”

This Court is entirely satisfied with what the Chancellor has said on this question of advancements, and it is deemed unnecessary to add any thing to the views he has presented on that subject.

But it is deemed of importance to say that in the opinion of this Court the complainants are concluded from making, the question as to the alleged advancements, in consequence of the settlement which they had, and which was intended to be final and conclusive, save only as to the thousand dollars reserved for the use of their grand mother during her life. They have no right to open that settlement except upon the-allegation and proof of fraud, misrepresentation, concealment or mistake of facts. And as a matter of pleading, the bill should state the specific ground upon which it is sought that the account should be opened and relief be given, in order that the defendants may meet the case made in the bill fairly. If parties come to a settlement, and will not see their rights; in their true character, or use proper diligence in ascertaining them, or, perceiving their rights, think proper by their silence to Avaive them; there is no reason why this Court or any other should be called upon to protect them from the conse*154quences of their own default or folly. There are but few set: tlements or accountings in which, by a searching scrutiny, some errors or omissions might hot be detected. And this Court will not open them when by a pioper vigilance they might have been guarded against, and unless some of the circumstances above adverted to as affording grounds for relief are alleged and proved. A party fully competent to protect himself; under no disability; advised as to all circumstances by which he may be saved in his rights; or in a situation where he might, by due diligence, be so advised; not over-reached by fraud, concealment or misrepresentation, nor the victim of a mistake against which prudence might have guarded ; has no right to call upon Courts of Justice to protect him against the consequences of his own carelessness, and to disturb the peace of society by his clamors for that justice which he has voluntarily or negligently surrendered. More especially is it wise that these family settlements should not be disturbed upon light grounds. The criminations and recriminations incident to such proceedings oftentimes sunder forever the ties of consanquinity and result in the disruption of the friendships of a long life. What is true as to families in this particular, is true as to the interests of society in general. The rule, from the foregoing considerations, is vindicated upon principle. It is not less strongly sustained by authority. For it will be perceived, that every thing which Í have said is supported by decisions which are directly in point.

B otefaur v. Rliame, 1 McCord Ch. Rep. 161: RadcliiTe v. 'Wighlman, lb. 452. Porter v. Cain, McMullan’s Eq. Rep 1 Story’s Eq. Sec. 138. Stockley v. Stockley, 1 Yesey and Beams, 29.

The decree is affirmed and the appeal is dismissed.

Johnston, Cit. and Caldwell, Ch. concurred.

Donkin, Ch. absent at the hearing.

*Decree*affirmed,