#### *E. L. Fraser and wife*v. *L. P. Hext, administrator, et al.*

Columbia,

Novr. 1848.

It is not th > policy of the law to disturb settlements made with deliberation and with tolerable fairness, more particularly where they have been acquiesced in for any length of time afterwards.

No settled account ought to be opened upon the mere suggestion of a bill in Equity, especially where the truth of such suggestion is fully and substantially denied by the answer.

Where an attempt is made to open a settlement, on the ground of fraud or mistake in stating the accounts, it is incumbent on the complainant to set out in his bill the particular fraud or mistake, that the defendant may be prepared to ans *v*r it.

Though a settlement is *prima fade*conclusive as to the amount due, a note given on the settlement is not payment or satisfaction, unless it is so agreed upon or understood by the parties: unless so understood, it is rather to be regarded as a memorandum or acknowledgement of the amount ascertained tobe due, to be held by the creditor.

*Before*Dargan, Ch. *at Barnwell, February Sittings,*1848.

This case was beard on the Circuit, on exceptions taken to the Commissioner’s report, made under a previous order of reference.

His Honor’s decree sufficiently explains the facts connected with the points decided by the Court of Appeals.

DabgaN, Ch. The complainants, Elias L. Fraser and Maria Louisa, his wife, filed their bill of revivor against L. P. Hext, executor of the last will and testament of Richard C. Ashe, and the other defendants, who were his devisees and legalees, for an account and settlement of the testator’s estate. The testator, by his will, gave each of his children 100 dollars, to be paid at the convenience of his wife ; all the residue of his estate, real and personal, to his said wife, Margaret Ashe, to be distributed among his children at *her death,*as she might think proper. The testator’s wife died before him, and in 1837 the testator died, leaving- his will uni-evoked, and the following children, to wit: Richard C. Ashe, jr., Eliza,Ann, who had intermarried with L. P. Hext, Mary D. who had intermarried with Edward K. Garvin, and Maria Louisa, who first intermarried with Medicus Powell, and after his decease, with the complainant, Elias L. Fraser. On the 11th October, 1837, L. P. Hext proved the will, and obtained letters of administration, with the will annexed; on the 20th November, in pursuance of an order of the Court of Ordinary, he sold all the goods and chattels of the testator, but does not appear to have filed any return of the sales. The personal estate, by an appraisement which preceded the sale, was valued at 3,717 dollars. The defendant, never made any return of his accounts as administrator.

*251The complainants charge, that the complainant, Maria L. Fraser, then Maria L. Powell, after the decease of her band, Medians Powell, being desirous of removing to Chester district, to live near her deceased husband’s relations, applied with some importunity to L. P. Hext, the administrator, for payment of her share of her father’s estate. That after some delay and evasion, he made a statement of the affairs of the estate, and gave her, as her full portion thereof, a note of her brother, Richard C. Ashe, for about 450 dollars; for which she executed to him a receipt in full for her share of the testator’s personal estate ; he assuring her that he would thereafter satisfy her, that the amount thus received, was all that she was entitled to receive. They further charge, that Richard C. Ashe refused to pay her the note, alleging that on a settlement with Hext, it would be found that he owed him nothing. That she offered to return the note of Richard C. Ashe to L. P. Hext, and claimed her share and portion of the estate. That the said L P. Hext refusing, she exhibited her bill against the said L. P. Hext, administrator as aforesaid, and the other legatees and devisees of Richard C. Ashe, deceased, chargiug the facts above stated; that the settlement and receipt above mentioned, *“was fraudulent, false, partial and*erroneous,” and that it was *“*fraudulent and contrary to equity and good conscience,” and prayed that he might be ordered to produce his statement of accounts, that she might be allowed to surcharge and falsify it.. And stating that there had been no partition oí the real estate, she prayed a partition thereof, and for process, <fcc.

The complainant, Maria L. having intermarried with the complainant, Elias L. Fraser, and Edward K. Garvin having died, leaving his wife surviving him, and entiiledlo her distributive share of the estate of the testator; the complainants, on the 3d April, 1845, exhibited their bill of revivor against the said L. P. Hext, administrator as aforesaij, and the legatees and distributees of Richard C. Ashe, deceased, stating the marriage of the complainants and the death of Garvin, in which bill of revivor the same facts and charges were re-iterated, and the .same prayer for relief.

The defendant, Hext, not denying the will, administration, and the proceedings thereon, says to the claim set up on the purt of the complainants, that there, was a settlement between Maria L. Fraser and himself, which was in full of her share Ol’ the testator’s estate ; that the said settlement was fair, full, ..-complete and *bona fide,*and that it was intended to be final and conclusive; and that he agreed to give his individual note for the amount which was found due on a settlement, which the said Maria L. agreed to take, and which was accordingly done, whereupon she executed to him her receipt and discharge in full of her *claim;*and he files a copy as an exhibit to his answer.

*252The defendant denies all the allegations of fraud, and that ke ever proaiise(j tó come to any other or further settlement. And he pleads and sets up the settlement and receipt in bar to any further account.

There was an order of reference to thé Commissioner, and that Ije report upon the accounts and any special matter, with a reservation of the equities of all the parties. The Commissioner having held his reference, and examined the accounts, at this term submitted his report. To this report, exceptions were taken on both sides, only four of which, from the view I take of the case, will be necessary to be considered.

The 5th exception of the defendant, L. P. Hext, is as follows : “ because the Commissioner has reported a balance in favor of Mrs. Fraser, in the accounts of the estate, whereas it is contended, that the defendant having submitted'a receipt in full, no balance should have been reported against him.”

'The complainants do not charge in their bill, any specific fraud, error or mistake. But the allegation is of fraud and mistake generally, all of which the defendant positively denies, and there is no other proof on this point. The receipt which he sets up in bar, is in the following words:

“Received, 29 Novr. 1841, of Lawrence P. Hext, administrator of Richard C. Ashe, sen’r. four hundred and fifty dollars, in full of balance due me as my proportion of said estate,_

Test,“Adeline Hext.

(Signed.) Maria L. Powell."

The defendant, for the amount expressed in this receipt gave his promissory note, of which the following is a copy. “ $450 00. On or before the first day of January next, I promise to pay Maria L. Powell or bearer, four hundred and fifty dollars, for value received, this 27th Nov. 1841,

(Signed,). Law. P. Hext,”'

Indorsed as follows.

“I obligate to put in place of this note, one upon Richard C. Ashe for a s.milar amount, including interest.”

It would seem that the note of Richard C, Ashe was'after-wards substituted, and for the reasons before stated, was returned, and this note resumed by the complainant, and is still in the power and control of her and her present husband.

The Commissioner, without regard to the receipts, which it was not his province to decide upon, proceeded to state ¿n account between the parties, and after • considering several rather nice questions of law and of fact, arising on the mat-k ters before him, found a balance due by the defendant to the \ complainants; which balance, thus found by an intelligent Commissioner and a good accountant, is, (be it remembered) actually some two hundred dollars less than the sum accorded by the defendant to be due to the complainant, on the set’ *253tlement between them. That is to say, this is the difference in the result, when the accruing interest is added to the principal of the note from its date. From which fact, I cannot be otherwise than impressed, that in the settlement, there was no fraud, unfairness or overreaching; and if there was error, it was not considerable in amount. And whether there was error of any kind or not, would depend upon the determination of those questions made in the exceptions of the complainants to the Commissioner’s report, which the Commissioner has decided against them, and which, from the view I have taken of the case, it is unnecessury for me to consider.

McMuIlan’s Eq. 81.

In the settlement which was made, the complainant acquiesced from the 29th Nov. 1841, to the 24th day of July, 1844, when she filed her orignal bill. And in the mean time, the note of Richard C. Ashe, junr. was given to the complainant in lieu of the defendant’s own note, according to the agreement indorsed thereon. Some efforts were made to collect Ashe’s note, which proving fruitless, this note was returned, and Hext’s note again delivered to the complainant. And this may be considered an affirmation of the settlement at that date, after the complainant had time for reflection and opportunity for consultation with her friends. Under these circumstances, I am of the opinion that the account thus settled between the parties should not be opened. In that settlement, they have approximated nearer to what the complainants consider the justice of the case, than an intelligent Commissioner, with all the aid of his experience and skill in the adjustment of accounts, assisted as he was by the Solicitors of the parties. It is not the policy of the law to disturb settlements made with deliberation, and with tolerable fairness, (to say the least,) — more particularly where they been have acquiesced in for two or three years.

In *Porter*& *wife*v. Cain, the settlement was made between the complainant and the defendant, who was the guardian of the complainant’s wife, (who was still an infant,) and in a very short time after the complainant himself was 21 years of age. There was no fraud, but manifest errors in the statement of the accounts on which the settlement was made; there being no interest cast upon the annual balances, according to the usual mode of adjusting guardian’s accounts. The complainant gave a receipt in full, and afterwards filed his bill for an account. The defendant set up his receipt in full in bar of the claim for an account, which was sustained by the Court, and the bill was dismissed. The Court also held, that if there had been fraud or mistake in stating the accounts, it was incumbent on the complainant to have set out in his bill the fraud or mistake, that the defendant might have come prepared to answer it- The Court even refused to allow the *254complainant to amend his bill by setting out the fraud or mis-tafee, as the bill was considered without any foundation.

l McC’s. Ch. Rep. 161.

20 ports 6"

4 DeS. 175.

The complainant’s bill in the case before me, contained no specific charge of fraud or mistake, and if one exists and had been proved, the case as presented in the bill does not come up to the requirement of the rule as above laid down,

In the case of *Botífeur*v. *Weyman,*it was said by Colcock, j, «the Court will not open a settled account where it has been signed, or a security taken on the footing of it, unless for fraud or errors distinctly specified in the bill, and proved as specified. We collect indeed from the highest authority, that no settled account ought to be opened upon the mere suggestion of a bill in Equity, especially where the truth of such suggestion is fully and substantially denied by the answer.” See the cases cited in the decree of the Court and in the ar~ §ument- 1° the case °f *Slee*v. *Bloom,,*where the *defendant*sought to open an account stated, it was held that he was not to do so, unless tbeie was a sufficient foundation laid in the answer. See also *Deal*v. *Rodgers.*

For these reasons and on these authorities, I decide that the receipt on settlement is a bar to the complainant’s bill, and I should order it to be dismissed, but that I deem it proper to retain it for the purpose of adjudicating the rights of the defendants among themselves.

The fourth exception of the defendant Hext is as follows : “ that the Commissioner has reported a balance in favor of Mrs. Garvin, when it is submitted that the defendant having exhibited the receipt of Edw’d. K. Garvin, no balance ought to be reported against him.”

The defendant exhibited a receipt of Edward K. Garvin for one dollar, in full of all his wife’s interest in the personal estate. The date of this receipt I do not remember, nor its precise terms, a copy not having been furnished me. To show that the consideration was notone dollar only, the defendant exhibited a judgment of Garvin to his testator for $2040, with interest thereon from 4th April, 1836, besides costs. This judgment is said to have been designed as a fraud upon creditors, but whether it was so or *bona fide,*I apprehend that it was binding between the parties and their privies. Lawrence Hext, at or about the date of the aforesaid receipt, executed a receipt to Garvin for his share of this case. The receipt is as follows : “Rec’d 1st-(or thereabout) of January, 1843, from defendant my proportion of this judgment,” &c. There may, and likely there were other dealings between the parties. It is obvious that he did not relinquish his wife’s share for one dollar.

The reasoning and the authorities in reference to Mrs. Fraser’s receipt, apply with equal force to the receipt of Gar-vin. He had a right to receive his wife’s share of the per*255sonalty, if he could do so without a resort to Equity, and if he did so, his marital rights attached.

Mrs. Garvin did not answer the bill. She makes no question before the Court by the pleadings, but insists upon her share by parol. If she wishes the receipt to be set aside, she must file her bill for that purpose, or at all events, make the question in the pleadings.

The 2d and 3d exceptions of the defendant to the report of *the*Commissioner are overruled, and the report in that respect confirmed,ffor the reasons therein stated. It is also confirmed in respect to the amount found to be due to Richard C. Ashe. It is ordered and decreed that the defendant, L. P. Hext, pay to the said Richard C. Ashe, the sum of one thousand and fifty-two dollars 66-100, with interest from 20th January, 1847. It is also the judgment and decree of the Court, that the receipts of Mrs. Fraser andE.K. Garvin constitute a bar to the claim for an account set up in their behalf. It is further ordered and decreed that each party pay his, her, or their own costs.

*Grounds of Appeal.*

On the part of the complainants, and Mary D. Garvin, one of the defendants:

1. Because the receipt of the complainant, Maria Louisa, is not a bar to the relief prayed for by the complainants in this cause, nor conclusive evidence of payment.

2. Because the promissory note of the defendant, L. P. Hext, by which it is supposed the right of the complainants is extinguished, being unpaid and worthless, is not payment in fact or in law, and the complainants are remitted to their original cause of action against the said defendant.

3. Because the failure of the said L. P. Hext to exhibit the accounts by which he pretended to ascertain the amount due to the complainant, Maria Louisa, although at the time he gave the said promisory note he promised, and is required by the bill so to do, is of itself a fraud, by which it is rendered impossible, for the complainants, who are entirely ignorant of the matters contained in the said accounts, to specify any of the items or particulars thereof.

4. Because the following exceptions, taken by the complainants to the report of the Commissioner, to the matters of account in this cause, ought to have been sustained, viz :

1. For that in and by the said report the complainants are charged with $175 and interest thereon, as the balance due on the slave Mary, sold by Margaret Ashe, a *feme*covert, her husband, the testator, being then living, to Dr. Powell, the late husband of the complainant, Maria Louisa; whereas such sale was void and of no effect, and if valid, was not *256made on the credit of the interest of the said complainant un(jer t|ie ]ast au(j testament of her father, who was then alive.

2. For that the complainants are charged in and by the said report with $500 and interest thereon, as the value of the slave Hamlet; whereas the said slave, on the 9th August, 1837, and in the life time of the testator, was conveyed by Margaret Ashe, a *feme covert,*to Medicus Powell, the late husband of the complainant, Maria Louisa, in consideration of the love and affection which the said Margaret Ashe bore to the said Medicus Powell; and therefore the value of the said slave ought not to be deducted from the interest of the said complainant in her father’s estate.

3. For that the complainants are not chargeable with the value of Hamlet, even supposing, what they do not admit, that the said slave had been given to the complainant, his daughter, as an advancement.

4. For that the gift of the slave Hamlet cannot, according to the evidence, be regarded as satisfaction *pro tanto*of the interest of the complainants under the last will and testament of the testator.

5. Because the receipt of Edward K. Garvin is not a bar to the right of the defendant, Mary D. Garvin, to her portion of her father’s estate in the hands of her co-defendant, L. P. Hext; which receipt is in the following words: “Received, 31st December,' 1842, from Lawrence P. Hext, administrator of Richard C. Ashe, Sen’r., deceased, one dollar ($1 00) in full of all demands which I have or may have had, or have in right, title, claim, interest, or otherwise, in and to the said estate. E. K. Garvin.”

Patterson, pro appellants.

*Defendant's Grounds of Appeal.*

The defendant gives notice, that at the next sitting of the Court of Appeals in Columbia, a motion will be made to modify the decree of his Honor the Chancellor, in the above stated causes, on the following ground:

Because his Honor the Chancellor, in and by his said decree, has overruled the 1st, 2d and 3d exceptions of the defendant to the report of the Commissioner; whereas, it is respectfully submitted that the said exceptions should have been sustained.

Bellinger &■ Hutson, defendant’s solicitors.

*Defendant's Exceptions.*

The defendant, L. P. Hext, excepts to the report of the Commissioner made in these causes, in the following particulars, and upon the following grounds :

*257■ Ante, p. 148.

1. Because the Commissioner, in and by his said report, has not taken into the account the purchases made by Medi-cus Powell, the former husband of Maria Powell, the com-v plainant, at the estate sale of the said intestate ; whereas, it is submitted that said purchases should have been taken into the account and charged against the said Maria Fraser, the same having been made by her husband representing her in capacity of distributee.

2. Because the Commissioner has not debited the said R. C. Ashe with the amount due by him on two notes to the defendant, viz: one for four hundred dollars, due 1st January, 1841, with interest from the 30th January, 1840, credited with $200, 3d March, 1843 ; and another for four hundred dollars, due 1st January, 1842, with interest from 30th January, 1840. Whereas, it is submitted that the said R. C. Ashe should have been charged with the amount due upon said notes, more especially since these are the very notes suit upon which has been injoined by an order. taken under the bill filed by the said R. C. Ashe, with a view to the settlement of the estate.

3. Because the Commissioner, in his said report, has omitted to take into the account the advancements made in the life time of the said R. C. Ashe to his children; whereas it is submitted, that said advancements should have been taken into the account, under all the circumstances of this case.

4. Because the Commissioner has reported a balance upon the accounts of the said estate in favor of Mrs. Garvin; whereas it is submitted, that the defendant having exhibited the receipt in full of Edward K. Garvin, the husband of the said Mrs. Garvin, no balance should have been reported ill her favor.

5. Because the Commissioner has reported a balance in favor of Mrs. Fraser, on the accounts of the said estate; whereas it is submitted, that the defendant having exhibited her receipt in full, no balance should have been reported in her favor.

Bellinger, & Hutson, defendant’s solicitors.

Dargan, Ch.

delivered the opinion of the Court.

As to the effect of a settlement, and of a receipt in full, as *prima facie*discharging the party indebted from any further liability to account, this Court fully concurs in the views expressed in the circuit decree. To the authorities there cited may be added the case of *Murrel*v. Murrel, adjudged since the trial of this case, (May Term, 1848.) It is to be hoped that this question may now be considered at rest.

There is one point, however, on which the circuit decree has not done full justice to the complainants. The parties were so intent on opening the settlement, that the question *258was not discussed, or even brought to my notice, on the circuit trial. It is admitted that the note of L. P. Hext, executed on the settlement, and for which the receipt was taken, has not been paid. And the decree adjudging that 1-Iext is discharged from further liability to account, awards nothing to the complainants, but leaves them to their legal remedy upon the note. Though a settlement is *yrima facie*conclusive as to the amount due (as explained in the decree) a note given on the settlement is not payment or satisfaction, unless it is so agreed upon or understood by the parties. And unless such be the understanding, it is rather to be regarded as a memorandum or acknowledgment of the amount ascertained to be due : to be held by the creditor. In this case, it appears that it was understood by the parties, that the note of Hext to Mrs, Fraser was not satisfaction, for it was expressly stipulated that Mrs. Fraser was to have payment in other securilies, to wit: the note of R. C. Ashe. If Ashe’s note had been given in pursuance of the agreement, it would have been satisfaction.

The note of L. P. Hext, given to Mrs. Fraser for the amount found to be due on the settlement, is, then, not a satisfaction of the acknowledged indebtedness, and she is entitled to be remitted back to her original claim and remedy, which it does not appear that she has either expressly or implied? ly waived. The judgment of this Court is, that the circuit des-cree be so modified, that the said L. P. Hext, as administrator, be ordered and decreed to. pay to the complainants the sum of four hundred and fifty dollars, with interest from the 1st day of January, 1842. In alL other respects the circuit decree is affirmed, and on all other points the appeals are dis? missed.

The whole Court concurred,

*Decree modified.*