#### *George D. Keitt and wife*vs. *James J. Andrews and wife. Henry W. Moorer and wife*vs. *The same.*

Testator baring an only daughter and two grand-children, issue of his daughter, bequeathed property to his ‘ grand-children to be equally divided between them:’ after the death of testator three other grand-children, issue of his daughter, were born: when the two eldest grand-children, who alone were entitled to take under the will, arrived, at age, the executor paid each of them one-fifth of the legacy, and took from them written acquittances and discharges: this settlement was intended to be in full,- — all the parties, including the ordinary who stated the account, supposing in good faith that all the grand-children were entitled to share the legacy: near eight years afterwards the two eldest grand-children filed their bill to have the settlement opened, on the ground of mistake of law: — Bill dismissed.

where executor and legatee honestly misconstrue the will, and have a settlement in full, based upon such misconstruction, the settlement will not be opened merely because of such misconstruction.

Parties desirous of opening a settlement, on the ground of errors or mistakes, must make liaste in their application to the Court: long acquiescence amounts to a presumed ratification.

*Before*DargaN, Cb. *at Orangeburg, February,*1852.

DargaN, Cb. These two cases,, involving precisely the same issues of law and fact, were, by the consent of the parties, tried together.

Daniel Hesse, at the time of his death, (1826,) was seized and .possessed of a considerable real and personal estate, all of which he disposed of by his last will and'testament, bearing date the 7th February, 1826. He had, at the time of his death, but one child, Ann Catherine Felder, then the wife of Henry Felder, now the wife of the defendant, James J. Andrews. The said testator had at that time no living descendant but his daughter, the said Ann C. Felder, and her two children, Olivia, now the wife of the complainant, George D. Keitt, and Sarah A., now the wife of the complainant, Henry M. Moorer. After the death of Daniel Hesse, Ann Catherine Felder had another daughter by her first *350marriage, namely, Henrietta Eelcler, now tbe wife of Wesley Keitt.

Henry Felder and Ann Catherine, bis wife, were appointed tbe executor and executrix of the will of Daniel Hesse. Shortly after the testator’s death, Henry Felder proved the will, qualified as executor, and took upon himself the burthen and execution thereof. He died shortly afterwards, (28th April, 1826,) and Ann Catherine Felder, by virtue of her appointment, became the executrix of the said will. She qualified on the 15th of February, 1827. On the 18th day of May, she obtained letters of administration of the estate of her deceased husband, the said Henry Felder.

On the day of April, 1829, the said Ann Catherine Felder intermarried with the defendant, James J. Andrews, by whom she has issue two sons, James Hesse Andrews and Edward W. Andrews. The defendant, James J. Andrews, by virtue of his marital rights, became the acting executor of the estate of Daniel Hesse. From the time of his marriage to *the*present time, he has continued to manage the estate, and he made the settlements with, and took the receipts and discharges from the complainants, that will bo hereafter noticed and considered.

The testator, Daniel Hesse, disposed of his whole estate in favor of his daughter and her children. The present litigation grows out of the sixth, eighth and ninth clauses of the will. The sixth clause is as follows: “ The remainder of my lands I will and bequeath to my grand-childrcn, to be equally divided among them, share and share alike.” The lands have been sold since the wives of the complainants have come of age, and all the parties in interest have joined in the execution of the conveyances in the proper legal form, to assure the title to the purchasers. And so far as this clause goes, it is the proceeds of the sale of the lands that constitute the subject of controversy.

The eighth clause reads thus : “I will and bequeath to my grand-children tho sum of four thousand dollars in paper bills and notes on interest, to be equally divided among them, share *351and share alike. My executors are authorized to loan the money into good hands, and not without, and the interest arising therefrom to go to my grand-children, to be equally divided among them, share and share alike.”

The ninth clause is in these words: ,“My will is, that all my stock, including horses, cattle and hogs, household and kitchen furniture, plantation tools, and every other article of property belonging to me, should be set up at publio sale, and knocked off to the highest bidder, and the money arising from the sales to go to my grand-children, to be equally divided between them, share and share alike. The sale money may also be loaned, if it can be put into good hands, and not without, and the interest arising from it to go to 'my grand-children, to be equally divided between -them, share and share alike.”

The complainants contend, that Mrs.' Keitt and Mrs. Moorer being the only grand-children of the testator at the execution of his will, and at his death, are entitled to take, to the exclusion of all the after born grand-children, all the property bequeathed in the three clauses that have been recited. This construction the defendants deny, and contend that all the grand-children are equally entitled.

The case is too plain for doubt. The rule is clear, that where there is a bequest to children or grand-children, as a class, and in general terms, only those in existence at the death of the testator are entitled. A modification of this rule is where the distribution is postponed to a particular time, or is directed to be made on the happening of a particular event contingent as to time. In such a case, all who can bring themselves within the class, or answer the description, at the period fixed by the testator for the distribution, are entitled to participate. Where there is an immediate gift to children, to take effect in possession at the testator’s death, the children living at that time are alone entitled. 2 Jarm. on Wills, 74. See also the elaborately considered case of *Myers*vs. Myers, 2 McC. Ch. 215, where it was held that a devise to grand-children, without any definite period fixed by the *352will for the division, included only such grand-children as were living at the death of the testatrix.

The intention of the testator, as indicated in the context, may control the rule. But in Daniel HesSe’s will, there is no light reflected from the context upon the construction of these clauses. They must be construed according to their own import, under the rules of law above referred to. And my conclusion is, that Mrs. Keitt and Mrs. Moorer, being the only grand-children of the testator born and existent at the time of his death, were alone entitled to the legacies bequeathed to grand-children in the sixth, eighth and ninth clauses of the will.

But the parties have settled upon a different construction of the will. Proceeding upon the principle that the after born grandchildren of the testator were entitled to share equally with those who were in being at the time of his death, George D. Keitt, in behalf of himself and his wife Olivia, and Henry M. Moorer, in behalf of himself and his wife Sarah, have, on a formal settlement with the defendants, Andrews and wife, received one-fifth part of the property bequeathed in the three clauses of the will before cited, in full of their shares thereof, and have released, acquitted and discharged the said Andrews from any further accounting for the same. The release and discharge of Moorer is dated the 15th December, 1841, and is under seal; and that of Keitt is dated the 21st day of January, 1843, and is not under seal. Except as to the seal, the discharges of Moorer and Keitt are substantially the same. The settlement with each of them was made upon the same rules of calculation and the same principles of construction.

On the 18th December, 1851, George D. Keitt and wife filed their bill against James J. Andrews and wife, for the purpose of setting aside the release and discharge and opening the settlement, praying that the same should be made according to the true construction of Daniel Hesse’s will, which they contend excludes the after born grand-children as to all the property devised and bequeathed in the sixth, eighth and ninth clauses of the will. And *353on the same day, the said Henry M. Moorer and wife filed their bill against the same defendants for the same purposes.

The complainants claim to be relieved from the effect of their settlement with the defendants, and of the receipts and discharges which they have executed to them, on' the ground that they were “ misinformed, mistaken and deceived as to the extent of their rights and interest under the will of the said Daniel Hesse,” and were “led to believe that the.after born children of the said Ann Catharine Eelder were entitled by law to share equally with” Mrs. Moorer and Mrs. Keitt, “ who were in being at the death of the testator.” They do not charge that there was any fraudulent misrepresentation or concealment on the part of the defendants,- or that they were in any way instrumental in misleading them. If such a charge had been made, it was not supported by the evidence. All the parties in the settlement seemed to have acted in good faith, and honestly to have fallen into a common error. Mr. Grrambling, who was the ordinary of the district, was requested by Andrews to make out a statement preparatory to a settlement between himself and Moorer. The only instructions given were that the statement of the account should be made out according to the terms of the will, and the returns of the executor. He did not express his views as to the construction of the will, órnon the question whether the after born children were entitled to share with those who were in being af the testator’s death. The witness was simply requested to make the statement of the account according to the will and the returns, with one exception, in which Andrews erroneously supposed he was making a generous concession. The testator had on hand at his death five thousand dollars in specie, .winch he disposed of in the seventh clause of his will, and which he forbid being put out at interest. Disregarding the inhibition, Andrews had loaned out the specie, and had made interest on it, and was willing to be charged with interest. Except in regard to this, Grrambling was to state the account according to the will and the returns.

Grrambling thought all the testator’s grand-children were enti-*354tied to share equally, and stated the account upon this principle of construction. He retained the same opinion as to the proper construction of the will to the time of his giving evidence on the trial. Thus the settlement was made *bona fide*by the parties to it, and by their accountant. There was no ignorance, mistake, misrepresentation, or concealment of the facts .of the case. The only facts necessary to be known were the provisions of the will, and the returns of the executor — the fairness and accuracy of which are not questioned. These facts were in the possession of the complainants, or were accessible to them. The ground on which complainants claim to be relieved is simply ignorance of law; or, in other words, ignorance of the true legal construction of the will. But ignorance of law does not entitle one to open a settlement formally and solemnly made. And it would be unsafe in the extreme to allow a settlement to be opened, and a formal discharge set aside, on account of an erroneous construction of the will or instrument under which it arises. If this rule were to prevail, no such settlement would be binding and conclusive, unless made under a decree of the Court.

Is there any authority which goes so far as to say that a party is entitled to relief from a mistake of law, where there is no fraud, misrepresentation, management, or undue influence, and where the mistake was simply his own erroneous construction of a will or deed ? In this case the parties seeking relief had the will before them. They were familiar with its provisions. The defendants did not seek, in any way, to impose their construction of it upon the complainants. It does not appear that they expressed any opinion as to its proper construction. If the parties now complaining, possessed as they were of all the facts of the case, and with the will before them, had applied to the proper sources of information and had sought legal counsel, they would have been advised as to the true construction of the will; and if their legal adviser himself had entertained doubts, he would have said that it was a proper case for the consideration and judgment of the Court. Their not pursuing this course was *laches*on their part, *355against the consequences of which, the Court is not bound to protect them. Where one interested in a will undertakes to construe it for himself, and construes it erroneously, or adopts the erroneous construction of another, and predicates a settlement and discharge on such construction, he is not entitled to open the settlement in consequence of such errors. He must abide the consequences of his misconstruction; provided, of course, there be no fraud, management, or undue influence employed to inveigle him into the settlement. The case is not materially altered where both parties have fallen into the sam'e error. A misconstruction, like that made out in this case, is rather an error of the judgment, than a mistake either of the law or of fact.

The simple misconstruction of á will or deed, where there is no fraud or circumvention, cannot be regarded in any point of view as coming within the scope and authority of those cases where mistakes at law, in contradistinction to ignorance of law, have been considered as affording grounds for relief. It is a cardinal theory of the law, founded upon a necessary policy, that every one is -presumed to have a knowledge of its principles. This presumption prevails as well in reference to civil rights as in the criminal code. Without this doctrine, no system of law can practically fulfil the ends of its institution. If a man learned in the law has before him the will or deed in which he is interested, is he not possessed of all the information, both as to the law and the facts, which will enable him to arrive at a just conclusion ? If such a man were to fall into an err'or of construction, could *he*call upon this Court to relieve him from a contract or a settlement based upon such misconstruction ? The rule that would apply to-the case of such a man would apply to one not quite so eminent in legal attainments; and in fact to every other person legally competent to enter in such transaction. By what standard will the Court undertake to measure the intellects of men, or what graduated scale will it apply to ascertain the extent of their legal knowledge ? Upon what process or principle could it be determined that one man had enough legal knowledge, and another *356had not enough to enable him to give a proper construction to the will ? In a case like this, there is but one resource. All must lie in the same Procustean bed. All must be supposed to be alike informed. All must bear the consequences of their misconstruction; though in some cases it would be the error of an enlightened, and in others of an unenlightened judgment. In the opinion of the Court the complainants have failed to make out a case which would entitle them to have the releases set aside and the settlements opened.

There is another view of the case yet to be presented. The settlement with the complainant, Moorer, was made the 13th December, 1841, and that with the complainant, Keitt, the 21st January, 1843. Both the bills were filed the 18th December, 1851. The defendants have not pleaded the statute of limitations, nor insisted thereon in their answers. It is needless to say, that the statute would have been applied if the same had been pleaded. But the defendants insisted that the complainants, if their complaint had been otherwise well founded, were too late in their application to the Court for relief; that their claim was stale, and the settlement had remained unquestioned for too long a time to be now disturbed. The complainants, Moorer and wife, had acquiesced for more than ten years; and the complainants, Keitt and wife, for nearly eight years before they sought relief in this Court. During the whole of this long interval, they have had as ample means of information as to their rights, as they have at the present time. There is no information of which they are now possessed, which they did not possess or have the means of possessing, immediately after, or even before the settlement. In my opinion they have come too late. Parties desirous of opening settlements on the ground of errors and mistakes, where the facts are all within their knowledge, must *malee haste*in their application to the Court for relief. Their long acquiescence amounts to a presumed ratification. The views of an eminent American commentator on this subject are so well expressed, and are so pertinent to the question, that it will be sufficient to conclude my discussion by quoting his language.

*357“ It is a most material ground,” he says, “ in all bills for an account to ascertain whether they are brought to open and correct errors in the account *recenti facto ;*or whether the application is made after a great lapse of time. In cases of this sort, where the demand is strictly of a legal nature, or might be cognizable at law, Courts of Equity govern themselves by the same limitations as to entertaining such suits, as are prescribed by the statute of limitations in regard to suits at common law in matters of account. If, therefore, the ordinary limitation of such suits at law be six years, Courts of Equity will follow the same period of limitations. In doing so, they do not act in cases of this sort, (that is, matters of concurrent jurisdiction,) so much in analogy to the statute of limitations as positively in obedience to the statute. But when the demand is not of a legal nature, but is purely equitable, or wihere the bar of the statute is inapplicable, Courts of Equity have another rule, founded sometimes upon the analogies of the law where such analogies exist, and sometimes upon its own inherent doctrine, not to entertain stale or antiquated demands, and not to encourage *laches*or negligence. Hence, in matters of account, although not barred by the statute of limitations, Courts of Equity refuse to interfere after a considerable lapse of time, from considerations of public policy, from the difficulty of doing entire justice, and from the consciousness that the repose of titles and the security of property are mainly promoted by a full enforcement of the maxim, vigilantibus, *non dor-mientibus, jura subveniunt.”*1 Story Eq. § 529, and the cases cited.

It is ordered and decreed, that the bill of George D. Keitt and wife against James J. Andrews and wife, be dismissed. It is also ordered and decreed, that the bill of Henry M. Moorer and wife, against the said James J. Andrews and wife, be dismissed.

The complainants appealed, on the ground:

Because the said settlements and discharges were founded on uch mistake of law, as rendered them no bar to the relief *358prayed for by the complainants, and such relief should have been granted.

*Hutson,*for complainants.

*Grlover,*contra.

*Per Quriam.*

This Court concurs in the Chancellor’s decree, which is hereby affirmed, and the appeal dismissed.

JOHNSTON, DuNKiN, DargaN and Wardlaw, CO., concurring.

*Appeal dismissed.*