#### *J. J. Clarke*vs. *J. Jenkins and others.*

Executors charged with neglect in the management of the plantations of testator under their charge; the Master and Chancellor having concurred that there had been no neglect, the Court of Appeals refused to disturb their judgment.

Testator devised separate plantations to his three infant children; there being a con- . siderable amount of debts of testator to pay, and the number of working hands of the children being about equal, the executors, until the debts were extinguished, managed the several plantations as one estate, without separation of the income of *319each child — charging, however, one of the children, whose plantation was of less value than the others, with a reasonable amount for rent; *Held,*that there was no reasonable objection to the conduct of the executors in managing the estate as a whole.

At the foot of an account, containing several demands, the creditor gave a receipt in lull, and more than four years afterwards claimed other demands not included in the account; Held,—

That the receipt amounted to a waiver and abandonment of the claims not included in the account.

*Held further,*that if the party might have opened the receipt upon any ground of equity, such as fraud or mistake, the statute of limitations began to run against the exercise of such right from the date of the receipt.

The acknowledgement of an executor of the justice of a claim, after the bar of the statute of limitations is complete, will not prevent legatees and distributees, into whose hands the estate has gone, from availing themselves of the bar of the statute.

Every executor has a several right to receive the assets of the estate; and he who receives, is exclusively answerable for the misapplication of them, unless his co-executors have contributed to enable him to get possession of them, or have acquiesced in his appropriation of them contrary to the trusts of the will, knowing of such misapplication.

*Before*Daugan, Ch., *at*Charleston, February, 1850.

This case came before the Court on exceptions to the report of the Master, which is as follows :

This case was referred to me to report on the matters set forth in the pleadings. Having received no instructions from the Court, touching the principles upon which the report should be founded, the Master will be compelled, in order to bring the whole case fairly and fully before the Court, to 'express opinions on several important points of law.

The complainant is James Joseph Clarke, son of William M. Clarke, deceased; and the defendants are John Jenkins, William M. Murray, and George W. Seabrook, executors of the said William M. Clarke, and Mr. and Mrs. Hanckel, and Mr. and Mrs. Whaley. These two ladies being daughters of the said William M. Clarke.

It appears that William M. Clarke was twice married; his first wife was Martha Mary Murray'; she departed this life in the year 1821, about nine months after her marriage, leaving surviving her the said William M. Clarke, and one daughter, Mar*320tha Mary Murray Clarke, now Mrs. Whaley, one of the defendants. The second wife of Mr. Clarke was Elizabeth Jenkins. He died in the year 1831, leaving surviving him his said widow, Elizabeth Jenkins, and two children by her, the complainant J. J. Clarke, and the defendant Mrs. Hanckel. The widow afterwards intermarried with John Hannahan; but neither of them are parties to this bill.

In order to understand the questions involved in this case, it is necessary to advert to the will of Joseph James Murray, the father of Mr. Clarke’s first wife, and grand-father of the defendant, Mrs. Whaley. This gentleman, on the 23d February, 1815, executed two deeds, which he confirmed by his will bearing the same date — wherein he conveyed to trustees, sixteen negro slaves for the separate use of his daughter. Martha Mary Murray, mother of the defendant, Mrs. Whaley, during her life, and remainder to any child or children living at the time of her death, absolutely. At or soon after her marriage with Mr. Clarke, these negroes went into his possession, and he continued to use them from that time, about the year 1820, to his death in the year 1831, without accounting for their hire to his daughter, Mrs. Whaley, in whom, upon the death of her mother, they had absolutely vested.

Mr. Clarke, by his will made in 1830, among other things, after devising to his widow in fee a plantation called “ Cypress Trees,” devised and bequeathed in the following words :

“Item. I give, devise and bequeath unto my dear daughter, Martha Mary Murray Clarke, her heirs and assigns forever, all my right, title, interest and estate in the plantation or tract of land commonly called “ Vinegar Hill,” that came from the estate of her grand-father, Joseph James Murray; and as the said plantation is, in my opinion, less valuable than the plantations respectively given to my wife and other children ; and as it is my wish that, at my death, my wife and each of my children be as nearly as possible on an equality in regard to property, I give, devise and bequeath ■ unto my daughter, Martha Mary Murray Clarke, so much money as, with the said plantation *321“Vinegar Hill,” will be equal in value to “Cypress Trees” plantation, in lieu, and to stand in the place of, so much land, to her and her heirs forever.

*“*Item. I give, devise and bequeath the plantation or tract of land called “ Shell House,” unto my son James Joseph Clarke, his heirs and assigns forever.

“ Item. It is. as I have already said, my desire that, at my death, my wife and children respectively, should be as nearly as possible possessed of property of equal value. And as my dear daughter, Martha Mary Murray Clarke, under the deed of her grand-father, Joseph James Murray, to her mother, then Abigail Jenkins Murray, dated the twenty-third day of February, in the year of our Lord one thousand eight hundred and fifteen, will be possessed, in her own right, of as many slaves as can fall to my present wife and her two children, on a division among them of all the negroes that belong to me, I therefore will, order, and direct, that all the negro slaves of which I may die possessed in my own right, be divided into three equal portions or parts. That my negro slaves Frank, Bob, Sarah, and her children Joe, Prince, John, Martha, Mary, Sam and Ben, be included in one of these three equal parts ; and I give and bequeath the one of the said three equal portions, in which the slaves designated are included, unto my dear wife Elizabeth Mary Clarke, forever, to and for her own sole and separate use, and without being in any respect subject to the debts, influence, or control of any husband whom she may have. And I give and bequeath the remaining two equal parts or shares of my said slaves unto my dear children, James Joseph Clarke and Elizabeth Jenkins Clarke, namely, one share or part to each of them forever. And should any or either of my said children die under twenty-one years of age, without leaving lawfully begotten issue living at the time of his, her, or their death, then the share or shares of my estate, real and personal, of such child or children so dying, whether specifically given, or otherwise accruing under this will, shall go to the survivor or survivors of my said wife and children, and the issue of any deceased child *322or children, to be equally divided among them, share and share alike. The issue of any deceased child or children taking among them the share or proportion only to which the parent or parents, if alive, would have been entitled. And should all my said three children die before attaining twenty-one years of age, without leaving issue lawfully begotten, living at the time of his, her, and their death, then, and in that case, I give, devise and bequeath all and singular, the property, real and personal, given, devised and bequeathed unto my said three children, whether specifically given, or otherwise accruing’ under this will, unto the issue of my two sisters, Elizabeth Grimball Jenkins, the wife of John Jenkins, and Lydia Calón Murray, the wife of Millivan Murray, to them and their heirs forever, to be equally divided between them.

*“*Item. I give, devise and bequeath all the rest, residue, and remainder of my estate, real and personal, unto my dear wife and children, to be equally divided among them, share and share alike, to them and their heirs forever.”

The executors named in the will all qualified thereon, and are now defendants to this bill. Finding much difficulty in the administration of the estate, the executors above named, in the year 1837, filed their bill in this Court against Mr. and Mrs. Hannahan, and against J. J. Clarke, Mis. Hanckel, and Mrs. Whaley; all three of whom were then infants, and answered by their guardian *ad litem,*asking instructions on the following points:

1st. As to the mode of determining the amount of money to be paid to Mrs. Whaley, to equalize her plantation “ Yinegar Hill ” with “ Cypress Trees.”

2d. How that amount should be raised.

3d. The proportion to be borne by each devisee.

The case was referred to me, and my report is on file.

The sum of $9046 was reported as the difference in value between “ Yinegar Hill ” and “ Cypress Trees.” Chancellor Haepee. decreed, at January Term, 1839, that the executors, out of the residue after the payment of the debts of the testator, *323should pay two-thirds of that amount, to wit, $6030, to Mrs. Whaley; and in case the residue was insufficient, that that sum must be made up out of the negroes bequeathed to the complainant, James J. Clarke, and his sister, Mrs. Hanckel, by their father. The executors proceeded to administer the estate upon these principles, and in December, 1841, they paid to Mr. Whaley the sum of $11,222 76, and took the following receipt at the foot of their accounts on the executors’s book :

“ 1841, November 17, by balance due W. J. Whaley, $11,222 76. Edisto Island, December 11th, 1841, received of George W. Seabrook, executor estate Wm. M. Clarke, the sum of eleven thousand two hundred and twenty-two dollars 76 1-4, in full of the above balance.

Wm. J. Whaley.”

The complainant, James J. Clarke, having arrived at the age of twenty-one years, filed the present bill against the defendants, praying an account from the executors; charging that the debts of the estate had been improperly paid by the executors out of his share, and that of his sister, exclusive of Mrs. Whaley;— that the executors, whilst the estate was under their management, neglected the same, by means whereof the annual income and profits thereof were diminished. The bill further prays, that the defendants, Mr. and Mrs. Whaley, may account for such sums of money as they had received, and that he be held liable for one-third of the debts of the testator. The answer of the executors stated, that the principal burthen of the administration was assumed by the defendant, George W. Seabrook; that they vouched their accounts in the proper office; that they charged the debts upon the residue, and after that was exhausted, they were bound to fall back upon the residuary bequest of negroes, in preference to the land devised. That they, upon demand by complainant’s solicitor, exhibited their accounts to him; that they have managed the property to the best advantage in their power, and have credited the entire amount of the income of the estate. That the property is by no means very productive; and that the income, under their management, was *324as great as complainant has realized from it since it was turned over to him. They admit to have in hands $>1277 89, which they are ready to pay over, according to the direction of the Court. They further state, that the defendant, Whaley, claims against the estate an account for the hire of Mrs. Whaley’s ne-groes, from the time of the death of the first Mrs. Clarke to the death of Mr. Clarke, and while they continued in the hands of the executors ; and they admit that the claim is perfectly just, and interpose no objection thereto.

The answers of Mr. and Mrs. Hanckel, and Mr. and Mrs. Whaley, contain no facts not already mentioned. The principal, if not only point, to which the complainant, and the defendants. Mr. and Mrs. Hanckel, have introduced testimony, is as to the alledged mismanagement, by the executors, of their several plantations.

The rule laid down by the Court in *Taveau*vs. *Ball,*(1 Mc-Cord Ch. 464,) is, that executors, administrators and others, acting in a fiduciary character, are bound to manage the funds committed to their care, with the same care and diligence, that a prudent and cautious man would bestow on his own concerns. In all cases, therefore, where a loss arises in the management of funds by the executor, or other person acting as trustee, the question arises, whether the loss happened from casualties against which no one can be expected always to guard, or from his want of care and circumspection. 2 Hill Ch. 364, *Bryan*vs. *Mulligan.*Such is, I presume, the law applicable to the present case. The first question of fact therefore is, did the executors manage this property with the same care and diligence that a prudent and cautious man would bestow on his own concerns *1*I find that they did. The executors employed as their overseer, from the death of Mr. Clarke, to the period when the devisees took possession of their several plantations, Mr. John W. Wescoat; to him was confided the management of the several plantations, So that the fidelity of the executors to the obligation of their office, depends upon the honesty, capacity and industry of their overseer. On this point the testimony is as follows:

*3251st. Governor Seabrook testified, that “ the overseer, Wescoat, employed by them, the executors, has an excellent reputation, but has known nothing of him personally.”

2d. Mr. James Legare testifies, “Knows Wescoat very well; about four years ago, when he, witness, was married, found him the overseer of his wife and her sisters; has continued to .employ him; has always been satisfied with him; thinks him an honest and competent overseer.”

3d. Mr. A. J. Clarke, brother of the complainant, “Knows Wescoat; he is a perfectly competent overseer.”

4th. Mr. Thomas Bailey, “ Knows Wescoat; he managed the places as o.verseer for several years; far as he knows him personally, thinks he is as good an overseer as can be found in the Southern States.”

In behalf of the complainant and Mrs. Hanckel, the witnesses testify as follows:

Mr. William Whaley. Among the men with whom witness associated, did not think Westcoat a great or good planter; witness’s father hired him for one year on the estate of Benjamin Whaley, and at the close of the year dismissed him; told him early in the season he might go as soon as he pleased; this was at the same time he managed Clarke’s place. Mr. Legare is the first man he ever heard speak well of Wescoat as a planter, though there may be others, and must be, from the number of places he is employed on; thinks he, Wescoat, was as extensively employed as any other overseer ; never heard of his having made any distinguished crop. He has latterly been employed by men of property. Would himself rather go without an overseer on his plantation, though not living there, rather than employ Wescoat. Wescoat is employed by Ephraim Bay-nard.

2d. Mr. Edward Fuller’s testimony leads to the conclusion, that the Clarke estate was not as well managed as he managed his own property.

From this testimony, I find that the executors have managed with the care and diligence that a prudent man would bestow *326on his own affairs. At the same time, it is probable, that if these plantations had been the property of one or more individuals of greater energy, capability and discretion, than the executors named by the testator, larger crops might have been obtained.

Assuming then that the executors are not responsible for more than they have received, the next question that arises is as to their accounts. It is admitted by all parties, that they have actually disbursed all that has been received by them. But it is contended, on the part of the complainant, that the accounts should be readjusted, so as to allow to him 25 per cent, more of the annual crops, than is allowed to Mrs. Whaley and Mrs. Hanckel, because of the superior fertility of his land. So á claim for a greater share than that allowed to Mrs. Whaley, is claimed in behalf of the defendant, Mrs. Hanckel.

From the testimony, it appears that each of the devisees had about an equal number of hands. The plantations, says Mr. Wescoat, were cultivated together as one place. The negroes were pretty much on one place. Thinks it was the best way to cultivate the lands, by cultivating them as one whole. In a division of the crops, Old Franks (the plantation of the defendant) ought to have had a little the most, “ perhaps one quarter more than either of the other places.”

If the testator had died free of debt, and it had been unnecessary, by the provisions of this will, to raise the sum of $6030 paid to Mrs. Whaley, it would clearly have been their duty to cultivate the places separately, or at all events to have discriminated in favor of the complainant, between the shares allotted to the other two parties. But the testator being in debt, and the complainant and Mrs. Hanckel having taken their shares subject to the allotment to Mrs. Whaley of $6030, the executors, looking to the payment of the creditors, in which class I place Mrs. Whaley, *pro hac vice,*made an equal partition of the annual income. To obtain this annual income, Mrs. Whaley’s gang contributed their services, and also the use of the Vinegar Hill tract for provisions. This income was applied, as before stated, to *327the payment of debts, for which the complainant and Mrs. Hanckel were liable; and for which, between the distributees, Mrs. Whaley was in no event liable.

Besides, the executors, in their account, p. 144, have charged Mrs. Whaley with the sum of $2095 for the hire of the land of Clarke and Hanckel, at the price of $5 per acre, which, according to the testimony, is a fair valuation.

I am of opinion, therefore, that the divisions of the income made by the executors was proper.

The defendants, Mr. and Mrs. Whaley, have also presented three distinct claims, which will now be considered. The first is a claim against the estate, as a debt, for the hire of Mrs. Whaley’s negroes, from the death of her mother in 1821, to the death of her father in 1831. The executors, in their answer, admit that this claim is perfectly just; but the complainant and Mrs. Hanckel contend that, as against them, the lapse of time is a bar. I find that the claim of Mrs. Whaley is correct, and recommend that, she be allowed hire at the rate of £.10 per an-num for 13 hands, for the space of nine years, with annual rests. Whether this claim is barred or not as to the other devisees, I refer to the Court as a question of law; and I report a statement of her claim made up on these principles.

The second claim of Mrs. Whaley is for interest on the sum of $6030, decreed by Chancellor Harper, from one year after the testator’s death, to wit, from 1832. It has been already seen that the testator intended to equalize the fortunes of his children, and for that purpose excluded Mrs. Whaley from any share of his negroes ; and as Vinegar Hill was inferior in value to other places, he devised to Mrs. Whaley *“*so much money as, with the said Vinegar Hill, will be equal in value to Cypress Trees plantation, in lieu, and to stand in the place of, so much land, to her and her heirs forever.” It is contended by Mrs. Whaley, that the true construction to be put on the will is to read it, as if instead of the words *“*so much money,” there had been .inserted the sum found by the decree to be the difference in value, to wit, $6030. In that case, the amount would have borne interest *328from one year after the death of the testator. I concur in that opinion, for whether the sum be regarded as money or land, in order to preserve equality between the heirs, it must be considered as belonging to Mrs. Whaley from the time of the death of her father, when Cypress Trees and the other plantations, as well as negroes, vested in the other devisees. There can be no doubt, that if the executors had filed their bill for instructions in 1831, upon the death of Mr. Clarke, that a certain sum of money would háve been decreed- to Mrs. Whaley, and that sum would have borne interest in the hands of the executors. But it is objected on the part of the executors, that the decree of Chancellor Harper. precludes this claim. To this it is replied, that ' Mrs. Whaley was then an infant; that the executors were also her guardians by the will of her father, and that neither they, nor her guardians *ad litem,*could waive her rights to her prejudice.

On the part of the complainant and Mrs. Hanckel, the lapse of time is also objected to this claim ; so far as the executors are concerned, I can discern nothing in the decree of Chancellor Harper, which authorizes me to conclude that they were exonerated ; and I therefore report the claim as well founded against them. As to the other devisees, it is as in the former case, a question of law, which I respectfully refer to the Court.

The third and last claim of Mrs. Whaley is, that she is entitled to a credit for the sum of $>2095, charged to her debit in the books of the executors, page 144, as hire paid by her to the other devisees for the use of their land. Vinegar Hill plantation was inferior in fertility to the other places, the executors therefore employed Mrs. Whaley’s gang on the best lands, allowed her one-third of the crops, and to make up for the difference in fertility, charged her with that sum as rent of so much land hired for her use. She would be entitled to this credit, if she were obliged to account for 25 per cent, of the one-third part of the income allotted to her ; but as she is not, according to my view of the case, bound to do so, I think the executors were right in charging her with that sum, as hire of the land of her *329co-devisees. I therefore recommend that the claim be not allowed.

The only other question remaining is, whether all the executors are responsible, or only Mr. George W. Seabrook, for any demand which may be established by any of the parties. The complainant and the defendants, Hanckel and Whaley, all contend for their joint liability. The executors state in their answer, that the principal burthen of the administration was borne by Mr. Seabrook. Mr. Legare, who was the factor of the estate, states that his dealings were principally with Washington Sea-brook ; thinks in some cases orders may have been drawn by John Jenkins ; knows that Mr. Murray was an executor, would have paid any order he had drawn on him ; does not recollect that any such order was drawn. Always looked upon Washington Seabrook as the acting executor. Has conversed about the business of the estate with John Jenkins, had no more to do with him than with Murray. In reply, he states that in his business relations with Seabrook, considered that his co-executors were bound by his accounts ; but has no recollection of ever having any business dealings in the matter of the estate, with either Murray or Jenkins.

John Wescoat, the overseer, testifies that after Clarke’s death, he was employed by John Jenkins, one of the executors ; continued as overseer until the last three years.

Whitemarsh B. Seabrook testifies, that he was employed by Washington Seabrook to adjust his accounts as executor of Clarke; so far as he knows, Washington Seabrook was the only acting executor; knew him only in the business; believes that he alone managed the financial concerns of the estate.

In behalf of the other parties, it is contended, that the executors are bound for each others acts by the fact that they united in the bill filed in 1837, asking instructions; and that they cannot now excuse themselves from loss, by pleading that they have not executed the instructions prayed; that they were bound also, as testamentary guardians, to additional responsibility beyond that imposed merely upon executors; that G. W. *330Seabrook was in fact their agent for certain purposes, to wit, the management of the financial part of the estate, but not of the whole business, as it is proved that the overseer had been hired by John Jenkins.

I find that George W. Seabrook was the sole acting executor, and that the others are not responsible for his defaults, if any should be proved. Respectfully submitted.

Edward R. Laurens, *Master in Equity.*

Dargan, Ch. This case comes before me for trial, on the report of the Master, and exceptions thereto. The excellent synopsis of the facts given by the Master in his report, renders it unnecessary for me to make a statement of them. Yet the case was imperfectly prepared for trial. No statements or exhibits of the accounts, have been filed with *the report. There*are numerous exceptions, many of which relate to the form and particulars of the account: there is no report upon the exceptions. And on account of the deficiences here noted, some of the exceptions are not sufficiently intelligible to warrant me in deciding upon them. Under these circumstances, I shall decide the general questions of law and fact, presented in the pleadings, and refer the case back to the Master, to be more elaborately reported upon as to the details, and to have the report conformed *to*the decree.

And first, as to the alleged mismanagement and neglect of the executors, in the conduct of the planting interest, of which they had the charge. The complainant and Mr. and Mrs. Hanckel allege that there have been such mismanagement and neglect on the part of the executors, and consequent loss to them, as to make the executors liable. It strikes me that the agricultural operations of this estate, conducted by the executors, have not been successful. This is not sufficient of itself, to make them responsible. If they use the ordinary means of good farming, and pursue the common agricultural system of the country, with an adaptation'of means to ends which prudence and care would dictate, this is all that is required. It would be unjust to make them insurers against the unpropitiousness of the seasons, *331or those failures arising from natural and sometimes unperceived causes, which so often baffle the skill and disappoint the hopes of the agriculturalist. Moreover, it is not to be expected that an executor will, or can, (at least in many instances,) devote his entire personal attention to the management of the planting business of the estate, to the abandonment and neglect of his own affairs. It is not to be expected, that he would devote the same intense personal attention and care to an estate of which he had charge as an executor, as he would to one of which he was the proprietor. To require him to do this would be to engross the whole of his time. To impose these terms upon his acceptance of the trust, and to exact the performance of them at his peril and cost, would be to establish a rule to which few could be found willing to submit. The consequence would be, that it would be difficult to find competent and worthy persons who would be willing to assume these necessary, important and responsible trusts ; particularly where they involved the management of a planting interest. In some instances, where the estate consists, as it does in this, of plantations and negroes, there is a necessity imposed on the executor of carrying on a planting interest. To hire out the negroes might sometimes bring in a greater ready income. But in such cases, the negroes generally deteriorate, and are not so prolific; and the homestead and plantation are abandoned'to dilapidation and decay. I might pursue this train of reflection farther, but it is unnecessary.

Upon an attentive consideration of the evidence, I cannot perceive any such mismanagement and inattention on the part of the executors, as should subject them to liability for unsatisfactory or deficient results. They employed a skilful overseer, and one who had enjoyed a high reputation in his line of business. They pursued the ordinary routine of making crops; and if the crops were not as abundant as might have been hoped or anticipated, I see no reason for making the executors responsible. And this is the judgment of the Court on this point.

The next question which I shall consider is, whether, for the balance found due on the accounts of the executors, the three *332executors are jointly responsible; or is G. W. Seabrook, who *alone*received the funds of the estate, *alone*liable. I think that the evidence warrants the conclusion that the three executors acted in conjunction in their management of the planting interest; and if there had been such default in this respect, as to have charged them for losses on account of deficient crops, they would all have been jointly liable. But the question now is, as to their liability for moneys actually received; and it appears that G. W. Seabrook alone performed the duty of receiving and disbursing the funds of the estate. The accounts were kept and made up in the name of “ the Executors of W. J. Clarke.” But this is only a matter of form ; and the proof is, that Seabrook received all the money, and made all the payments ; and the other two executors not only did no act of this kind, but there is no evidence that they concurred in the receipts or payments of the acting executor. Under these circumstances, I am of the opinion that G. W. Seabrook is alone liable for the balance due upon the executors’s accounts. And it is accordingly so decreed.

In regard to the apportionment and division of the income of the estate among the complainants, Mrs. Whaley and Mrs. Hanckel, and the charges and allowances which have been made in the way of rent, on account of the different fertility and productiveness of *the*several plantations, I am satisfied with the decision and report of the Master thereon, and for the reason which he has given. And the report is, in this respect, confirmed.

I come now to consider the claims set up in behalf of Mrs. Whaley.

The first which I shall notice arises under the following circumstances. She got no negroes from her father’s estate. Her grandfather, Joseph James Murray, by a deed, gave to his daughter, (Mrs. Whaley’s mother, and the first Mrs. Clarke,) certain negroes for her life; and at her death, he gave, by way of limitation, the same negroes to her children. She died in 1821, and Mrs. Whaley being her only child, was then entitled *333to the negroes. But they were kept by her father, the late Mr. Clarke, and used and employed as his own. He appropriated the products of their labor to his own use, kept no account, and seemed to have contemplated no liability for the rents and hire of these negroes. He made no provision in his will, or otherwise, for the payment of this claim; and he declared and provided in his will, that in consequence of his oldest daughter being entitled to these negroes, in her own right, and they being equal in value to one-third of his own negroes, all his own negroes should be equally divided among his two other children and his wife. And this has accordingly been done.

There cannot be a doubt but that the claim of Mrs. Whaley, for the hire of the negroes after her mother’s death, was, at one time, valid against her father’s estate. It is contended now, in reference to this claim, that the will presents a case of election ; and that in consequence of the devise of land by the will to Mrs. Whaley, and her acceptance thereof, that she is not to be allowed this demand. It is supposed that, upon a fair construction of the will, this claim is incompatible with its provisions ; and that Mrs. Whaley having elected to take the land devised to her, cannot now be permitted to recover a demand which would be adverse. I think differently. A doctrine has been invoked which has no application. As to Mrs. Whaley, the will presents no case of election. The testator evidently contemplated equality among the different members of his family, as to negro property. But this claim was a debt, honestly and actually due. He did not affect to dispose of it, and said not a word about it, in any way whatever. There are no conditions, express or implied, imposed by the will, as to the devise of land to Mrs. Whaley. It is not a case of election.

But there are other difficulties. There were former proceedings between these parties, on a bill filed in 1839, in reference to the estate of the testator. All the persons now parties before the Court, were parties to that bill. The widow of the testator, Mrs. Hannahan, and Mr. Hannahan, her second husband, were also parties. Mrs. Whaley *then*set up against the executors a *334claim for the hire of her negroes *after*the testator’s death, which was allowed her. But she advanced no claim for the hire that had accrued before her father’s death. She was then an infant. The Court decreed that she should be paid the difference between “ Yinegar Hill,” devised to her, and “ Shell Bank,” devised to her brother, W. J. Clarke. The widow’s share was exonerated from contribution for this purpose. In equalizing the value of her land, one-third was borne by herself, and two-thirds imposed as debts on the shares of J. J. Clarke and Elizabeth M. Clarke. The amount of the difference between the places was found to be $9046; which entitled her to receive from her brother and sister $6030. She afterwards intermarried with the defendant, W. J. Whaley; and he, on the 17th November, 1841, executed to the executors a receipt for $11,222 76, which included the amount due for the difference in the value of “ Yinegar Hill” and “ Shell Bank,” the negro hire due his wife, that had accrued after testator’s death, and all other demands at that time claimed, or thought to be due. The executors had delivered up the estate to the devisees and legatees, before this claim was advanced. They admit it to be a just demand, as it obviously was in its inception. They make no ohjection to its being allowed, but contend that a decree cannot go against them, on the ground, that the claimants stood by and saw them part with the control and possession of the estate, without intimating a design to set up this demand. There is only a small balance now in the hands of one of the executors, that remains to be accounted for. This reasoning, I think, is not to be resisted. If the claim should be allowed, a decree is not to be made against the executors, except, perhaps, so far as regards the small balance before spoken of. But in case the claim is allowed, the decree must be against J. J. Clarke and Elizabeth Clarke, who have received the property; the claimants themselves bearing their proportionate shares.

But in this view of the case, these parties are not to be compromised by the pleadings or admission of the executors, but they are to be permitted to use the same grounds of defence that *335the executors would, had they been the parties liable, and the claim set up against them.

In *Dawson*vs. *Dawson,*MSS. Feb. 7, 1850, under precisely the circumstances of the case now before me, a party was held to have forfeited and lost, what could otherwise have been considered as a just and valid claim. A party is not allowed to litigate his rights to the same subject matter by piece-meal. Therefore, if a present claim before the Court could have been adjudged in a former suit between the same parties, and was not adjudged, because not advanced, the claimant is concluded. The rule is, that a former suit is a bar to all matters that have been, or, from the nature of the proceedings, might have been adjudged.

Mrs. Whaley was an infant at the time of the former proceedings. Admitting that this fact would qualify the rule, and entitle her to open the proceedings, (upon which point I express no opinion,) yet, on her coming of age, or intermarriage with an adult, she must proceed with diligence to assert her rights; and failing to do this, she would, at all events, be concluded. From November, 1841, to 16ch December, 1846, the claimants have not impugned the correctness of the former settlement.

Thus I think that Mrs. Whaley is concluded and barred as to this claim, by the former suit. I think she is concluded by the receipt to the executors, considering it as a settlement without reference to a suit or decree. *Porter*vs. *Cain,*McM. Eq. 81. I also think that the claim was barred by the statute of limitations, which has run against it from the date of W. J. Whaley’s receipt.

Can these pleas and defences be available to the parties in whose favor they operate, without being made in the pleadings? I think they can. The claim is not set up in a bill. It is brought forward by the Whaleys, not by bill, but in their answer, against the complainant and one of their co-defendants. Replications are not usual in the Court of Equity in this State. Questions made, and claims brought forward, in the manner in which this has been done, are not required to'be answered, *336and are not presented according to the strict rules of pleading. I think that the objections to the claims are available in the manner in which they have been presented, and I hold that the claim is barred. And it is so ordered and decreed.

The next claim set up by Mr. and Mrs. Whaley, is for interest on the sum of $6032, which they received under the decree of the Court in the former case, in the equalization of the devises of the plantations. They contend that this was a pecuniary legacy, and should have borne interest from one year after the testator’s death. This may be a true interpretation of that part of the will. I express no opinion.

But it is a late day to claim interest, so long after the principal has been paid. If the interest was due, I think it has been waived. I think it is barred by the former bill, by the settlement, and by the statute of limitations. In fact, every objection against the claim for negro hire, applies with equal force against this. The claim is disallowed.

Another question raised in behalf of Mrs. Whaley is, in regard to a charge of land-rent made against her by the executors. The executors, as- has already been stated, cultivated the different plantations together, for the joint benefit of the parties interested. Her place, “Vinegar Hill,” was of an inferior quality as to- soil and productiveness. Her hands have been worked in part on a better place, and she has had the benefit of it. For this she has been charged rent. The amount charged is reasonable, according to the testimony; and in making the charge, the use of her own land in the joint cultivations has been considered. The exception is overruled.

There is only one more' topic which I will discuss. I do not think it proper, in the examination of the executors’s accounts, to go farther back than the decree made upon them in the former bill. As far as they are affected by that decree, they are to be presumed to be correct. From this stage in the accounts, the Master will examine them in the usual manner.

*337There are some errors that have confessedly crept into the statement of the accounts. These will, of course, be corrected.

It is ordered and decreed, that this case be re-committed to the Master, that he conform his report to the principles of this decree, and that he correct all errors that may appear in his statement of the accounts.

The defendants, W. J. Whaley and wife, appealed, on the grounds,

1. Because the bill of 1839 having been filed by the execu tors for instructions as to the mode of paying *all*the debts of the testator, no particular debt is forfeited because not specially mentioned to the Court at that time by the creditors or executors, but, on the contrary, the decree protects the debt.

2. Because the receipt of 1841 does not affect to be, nor is in law or in fact, a receipt in full of all demands; on the contrary, the executors, at the same time that they produce the receipt, admit that Mrs. Whaley is still a creditor to a large amount.

3. Because the debt to Mrs. Whaley for hire, being admitted by the executors to be due, the statute of limitations is inapplicable, and she is entitled to a decree therefor against G. W. Seabrook.

4. Because G. W. Seabrook being admitted to be insolvent, the complainant and Mrs. Hanckel ought to refund for the payment of this debt.

5. Because neither the complainant nor Mrs. Hanckel, can plead the statute of limitations in bar to the claims of Mrs. Whaley.

6. As to the decree under the bill of 1839 — Because the proceedings in that suit cannot bar her rights under that decree.

7. Because the plea of the statute of limitations cannot be pleaded to a decree of this Court.

8. Because the receipt of 1841 is not a settlement in full of the decree, nor has the same been pleaded as such by the executors, or by the complainant, or by Mrs. Hanckel.

9. Because the decree and so much of the interest as is *338unpaid, is a "valid and subsisting charge upon the estates' of the complainant and Mrs. Hanckel.

The complainant also appealed, on the following grounds.

1. Because the complainant was entitled to an account of the profit or income of his property in the hands of the executors of W. M. Clarke, who were also the guardians of complainant, and this account has never been rendered.

2. Because the executors, in the testimony which they introduced, established the fact, that of the income which they derived and disbursed, a much larger proportion was derived from the property devised to the complainant than from the property devised to the other children. And the complainant submits that they are bound to account with him for their application of the income arising from his share of the estate.

3. Because the executors were, and are, jointly liable to the oomplainant.

*Magrath, Yeadon,*for complainant.

*Memminger, J. M. Walker, McCrady,*for defendants. •

Wardlaw, Ch.,

delivered the opinion of the Court.

The questions raised by the grounds of appeal in this case may be considered most conveniently, by taking up the points decided in the circuit decree.

1. Neglect is imputed to the executors in the management of the plantations under their charge.

The Master and the Chancellor concur in the conclusion, that there has been no mismanagement; their judgment upon a matter of fact would not be disturbed by us, where there was testimony upon both sides, upon any doubt as to the weight of evidence. Here their judgment is amply sustained by the evidence.

2. It is complained, that the executors have treated the several plantations of the children of testator as one estate, without separation of the income of each devisee, whereas the land of plaintiff was more productive than the land of either of the other two, and the land of Mrs. Hanckel more productive than *339the land of Mrs. Whaley. In the judgment of the Master and Chancellor, which we are not disposed to controvert, Mrs. Whaley has made sufficient compensation to the plaintiff and Mrs. Hanckel for the superior productiveness of their lands, by the payment of $2095 for rent of their lands; and as the slaves bequeathed to the latter two were liable, by the decree of 1839, to the payment of $6030 to Mrs. Whaley, to produce equality among the three devisees, we see no reasonable objection to the executors’s conduct in managing the estate as a common property, until the debts, including the $6030, were extinguished.

3. A claim is set up, in behalf of Mrs. Whaley, for the hire of her negroes from the death of her mother until the death of her father, about ten years. One of the grounds upon which the Chancellor rejects this claim, is, that it was a matter litigated, or proper for litigation, in the former case between the parties to the present suit, reported as *Jenkins*vs. *Hannahan,*(Chev. Eq. 129.) That a former decree, or judgment, is a bar to further litigation between the parties and privies, as to the same subject of controversy, is firmly established in this Court. *(McDowall*vs. *McDowall,*Bail. Eq. 330 ; *Tate*vs. *Hunter,*3 Strob. Eq. 136.) The infancy of a party at the time of the former decree, is no ground of exception to the estoppel; for an infant is bound, as fully as an adult, by a decree, until it be reversed. (Story’s Eq. Pl. § *792; Spencer*vs. *Bank,*Bail. Eq. 468; *Huson*vs. *Wallace,*1 Rich. Eq. 1.) But the obscurity of the facts as presented to us, makes the application of the doctrine somewhat doubtful in this matter; and the necessity of scrutiny into the facts is superseded as other objections to this claim clearly appear. At the foot of an account, containing a demand against the executors for the hire of Mrs. Whaley’s ne-groes after the death of her father, her husband, then adult, and entitled to receive her choses in action, November 17, 1841, signed a receipt in full to the executors. The omission, at that time, to set up any claim for the hire of Mrs. Whaley’s negroes before the death of her father, amounts to a waiver and abandonment of such claim. *(Chesnut*vs. *Strong,*1 Hill Ch. 128.) *340It is the duty of the Court to give full effect to private settlements between parties of adverse interests, *ut sit finis litiurn. (Fraser*vs. *Hext, 2*Strob. Eq. 250.)

If the party might have opened this receipt upon any ground of equity, such as fraud or mistake, the statute of limitations would begin to run against the exercise of such right from the date of the receipt; and here the bar of the statute was complete before this claim was stirred. It may be mentioned, although the fact is not regarded as important, that Mrs. Whaley herself was of full age more than four years *ante litem motam.*It is urged, however, that the acknowledgment by- the executors of the justice of the claim, removes the bar of the statute, and revives the demand. But the *acknowledgement*was after the claim had been fully barred, and was not accompanied by any promise to pay; and under such circumstances the debt would not be revived against an original debtor; much less against a legal representative to create liability through him upon legatees- or distributees. The mere omission of the executors to plead the statute, will not preclude other parties, who may be charged with the debt, from availing themselves of the defence. (Shewen vs. *Vanderhorst,*1 Rus. & Myl. 347.) One legatee can make reclamation of another only through the executors, and upon some ground of equity that entitles the executors to be reimbursed for the erroneous appropriation of the assets. How could executors establish such grounds of equity, after they had wil-fully refrained from resorting to a legal defence *%*

4. Mr. & Mrs. Whaley propounded another claim, for interest on the $6030 decreed to her for equality. The principal sum was included in the account, at the foot of which, W. J. Whaley gave a receipt in full in November, 1841. The interest should have been claimed then, if ever. The claim of it now, is liable to all the defences which have been considered to exclude her demand for hire. More than that; this claim was never well founded. It is not allowed in terms by the decree of 1839; and it is not just that she should receive interest on a sum representing land devised to her, while the profits of the lands of *341her co-devisees are in the course of appropriation to make her land of equal value with theirs respeetively.

5. The remaining question is as to the joint liability of all the executors for the acts of each. The effect of our decision upon the first point — as to mismanagement of the plantations— is to restrict this enquiry to the subject of the pecuniary assets of the estate received by G. W. Seabrook. As to the receipts and payments, he alone was the acting executor ; and no act of concurrence, on the part of the co-executors, appears in the evidence. Indeed we are not furnished with any proof of his misapplication of the assets. Every executor has a several right to receive the assets of the estate ; and he who receives, is exclusively answerable for the misapplication of them, unless his co-executors have contributed to enable him to get possession of them, or have acquiesced in' his appropriation of them, contrary to the trusts of the will, knowing of such misapplication. Plere his co-executors have been merely passive ; they have not obstructed G. W. Seabrook in getting possession of the assets; and they are not responsible for his acts. *(Langford*vs. *Gascoyne,*11 Ves. 335; *Atcheson*vs. Robertson, Col. Dec. 1850.)[a]

It is not our purpose, in this opinion, to conclude the parties on any matter outside of the case made for our decision. The equities of the parties as to the distribution of the funds remaining in the hands of the acting executor, will be determined when they áre properly presented.

It is represented to us, that the plaintiff and Mrs. Whaley have died since the filing of the circuit decree. Leave is granted, to any party, to take the necessary steps for revivor.

Ordered that the circuit decree be affirmed and the appeal be dismissed.

Johnston, Dunkin and Daugan, CC., concurred.

*Appeal dismissed.*

[a]

*(a)*Ante p. 132.