
    *Robertson and Others v. Archer, Adm’or, &c.
    June, 1827.
    Practice-Reliance on Executor’s Account — Effect.— The rule that where a party relies on an account, furnished by the other party, and claims the benefit of credits, he is bound to take it all together and admit the debits also, unless he can surcharge and falsify it by proofs, is not applicable to an executor’s account, nor to any case where there is a trust or confidence.
    Executor — Suit against Legatees for Advances — Lapse of Time — Effect.—a suit by an executor against the legatees for advances made to the estate beyond the assets, will not be entertained after a great length of time has elapsed since the qualification of the executor, and the estate has been distributed with the consent of the executor.
    William S. Archer, administrator of John Archer of- Amelia, deceased, filed his bill in the Chancery Court of Richmond, against James Robertson and others, children and legatees of John Archer of Chesterfield, deceased, and the descendants of such of the children of the said John .Archer as were dead. The bill was filed on the 30th day of October, 1816; and set forth, that John Archer of Amelia, deceased, was appointed by John Archer of Chesterfield his executor: that the former undertook the execution of the will, and made sundry payments and advances, by which the estate became considerably indebted to him: that the legatees possessed themselves of all the estate and effects of the said John Archer of Chesterfield, without the assent of the executor, and without having executed refunding bonds to him : that tfie executorial accounts were referred, by agreement between the parties, to an accountant, who found a considerable balance to be due to John Archer of Amelia, the intestate of the compliauant; but, as this account was taken without judicial authority, the complainant had no power to establish it: that several suits are pending against the estate, by which large sums will probably be recovered against the complainant. He therefore prays for an account of the administration of John Archer of Amelia, deceased, upon the estate of John Archer of Chesterfield, deceased: that he may recover what is due to him from that estate; and that he be made safe against the claims now hanging over him.
    *The answer.of John Archer, one of the defendants, denies that the legatees took possession of the estate of their testator without the assent of John Archer, the executor, and asserts that the estate was divided by a decree of the County Court of Chesterfield ; which decree also directed a settlement of the executor’s account of ad-, ministration ; but, that he neglected to do so, from the date of the decree in November, 1802. to the day of his death: that the defendant never did consent that the accounts. should be settled by the person stated in the bill, or that he had any notice of the proceeding's in that settlement, till he was informed of the account long after it was stated: that the account so stated was entirely ex parte, as respects him; and that the executor repeatedly neglected and refused to come to a settlement, &c.
    The answers of the other defendants are to the same effect.
    The accounts were referred to a commissioner, to state and settle the same, and the plaintiff was directed to render an account of his intestate’s administration of the estate of John Archer of Chesterfield.
    The commissioner reported a balance due to the complainant of $3061 13.
    The defendants excepted to the account stated by the commissioner, inasmuch as it dispensed with vouchers to establish the items of debit in the said account. The grounds of this exception are fully stated in the opinion which follows.
    The Chancellor confirmed the report of the commissioner, and decreed that the defendants should pay their proportions of the sum reported to be due.
    The defendants appealed.
    Leigh and Stanard, for the appellants, contended, 1. That the commissioner was wrong in allowing the charges in the administration account, without any evidence to support them. They admitted the general rule, *that if the defendants rely upon the credits of the account, they ought to admit the debits. But, all the authorities which lay down this rule, relate only to the simple case of debtor and creditor; not to the case of executors or trustees. 1 Phill. Evid. 84; Wagner v. •Gray, 2 Hen. & Munf. 603; Jones v. Jones, 4 Hen. & Munf. 447; Ereeland’s adm’r v. Cocke’s ex’or, 3 Munf. 352. The case of Cavendish v. Eleming, 3 Munf. 198, does not contradict this principle. An executor differs from a man acting for himself, because he is bound by law to keep the account on both sides. 1 Rev. Code, 379, 380. The persons interested are often infants, who are unable to produce evidence against the executor. The case of an executor and of one acting sui juris are materially different. It is the duty of an executor to shew, not only that money has been paid, but that it is paid properly. This latter cannot be shewn by the account alone. There is no inventory in this case, which is positively required by law, and by which the persons interested might know what property came to his hands.
    2. The Court of Chancery ought not to have sustained this bill, because of the long delay, and implied admissions of John Archer of Amelia. Bolling v. Bolling, 5 Munf. 334; Hercy v. Dinwoody, 4 Bro. Ch. Cas. 257. In Jones v. Fitzgerald, 1 Munf. 150, a neglect of seven years was sufficient to exclude interest. Here interest is charged for a much longer time.
    Johnson, for the appellee.
    The rule of evidence which requires an account to be taken altogether, if a part is relied on, is a rule of universal operation, and is founded on that well known principle of justice, that you are not to take a garbled statement of the evidence. The reason applies to an executor, as weil as any one else. A merchant who keeps the account on both sides, if his credits are relied on, is entitled to consider *his debits as admitted. An inventory would be of no importance in this case, because it is only of the original estate which came to the executor’s hands, not of the increase or profits. An executor is chosen by the testator himself, and lenders his account upon oath. Cavendish v. Fleming, 3 Munf. 198, and M’Call v. Peachy, 3 Munf. 298, prove, that an exec■utor is not chargeable with credits, unless it is proved that they were received. This principle is not contradicted by the case of Beckwith v. Butler, 1 Wash. 224. Freeland v. Cocke, 3 Munf. 352, is strongly analogous to this case.
    
      
      See monographic note on “Executors and Administrators" appended to Rosser v. Depriest, 5 G-ratt. 6.
      The principal caséis cited in Gallego v. Atty. Gen.,, 3 Leigh 489; Archer v. Archer, 8 Gratt. 544, 546.
    
   June 12.

JUDGE CO ALTER

delivered the opinion of the Court.

This is a suit by the appellee, as administrator of John Archer of Amelia, who was executor of John Archer of Chesterfield, against the appellants, charging that his intestate was largely in advance to the estate, and that suits were brought against him in his life-time, and which were still pending against the appellee as his representative, to recover large sums as due from the. estate; that the appellants are legatees of the said John Archer of Chesterfield, and had illegally and without the consent of the executor, possessed themselves of the whole of the assets, without giving refunding bonds according to law, &c. The object of the bill is, to have a decree against the appellants for the monies so advanced by the executor beyond what he had received, and to have refunding bonds, in case future debts should be established.

It appears from the answers and documents in the cause, that about twelve years after the executor had qualified and undertaken his trust, the appellant Robertson and his wife, in right of his wife, exhibited their bill in Chesterfield County Court, against the executor for a settlement *of the executorial account, and for their one-fifth part of the slaves and other personal property, after specific legacies, and which they claimed under the will. To this bill, no answer could ever be obtained, though various conditional decrees were made. Finally, another of the daughters married, and she with her husband, and also the other appellants (then under age,) were made parties plaintiffs; and in 1802, about 18 years after qualification of the executor, a decree is entered by consent appointing commissioners to allot to the plaintiffs severally their one-fifth part as aforesaid; and Duncan Rose was appointed to state and settle the executorial account. He states that he gave notice to the executor to attend him, but ne did not do so; nor did he make any reply on the subject.

In 1804, the commissioners report that they had made allotment, which is confirmed. and the executor directed to deliver over the property so allotted, on the parties, or some one for them, giving bond to indemnify him against debts thereafter coming against the estate. This bond, the appellants, in their answer, say, was never demanded of them. The suit still went on ; and different sets of commissioners were appointed to settle the executorial account, some of whom, it appears, gave notice to the executor to appear with his accounts and vouchers; but this he never did. The last of those orders is made in July, 1810, about twenty-six years after the qualification of the executor; but, from that time until his death, (which happened about the year 1811, or 1812,) no account was rendered. This suit was instituted and the bill filed in 1816, to which the answers were filed in 1817; and in 1819, (about 35 years after the qualification of the executor.) the accounts are referred to a commissioner. He reports, that the appellee produced the books of his intestate, containing his administration accounts, acknowledged to be in his own hand-writing; but, not having vouchers for all the debts, he insisted that those accounts were either to be taken as correct throughout, or that he had a right to throw off from *the credits, a sum equal to the debits which were not vouched for; or, he proposed to the appellants, that the commissioner should make out his account of debits from the vouchers, and allow all credits which the appellants could establish by evidence. The appellant John Archer, however, who attended the settlement, stated that from the laspe of time, he could not establish credits, so as to change the accounts in their fa-vour, from what they appeared on the books; and the commissioner, therefore, proceeded to state the accounts from those books, merely correcting some errors apparent upon their face, and reported a balance of principal and interest as due to the executor, of $3061 13.

The appellants excepted to this report in toto, alleging that the principle so established by the commissioner, was 'illegal as applicable to administration accounts.

Two questions present themselves; the first, arising on the report of the commissioner, and the exception thereto; the second, whether, after such a lapse of time, and under ail the circumstances aforesaid, it was competent for the appellee to call for a settlement of the executorial accounts, so as to charge the appellants for advances made by the executor, beyond assets received; or for any other purpose, except to have refunding bonds executed, as directed by the decree of the County Court, so as to place the estate, as to the debts now claimed from it, in the same situation, as it would have stood, had such bonds been originally given?

We are of opinion, as to the first point, that the rule, that where a party relies on an account furnished by the other party, and claims the benefit of the credits, he is bound to take it altogether and admit the debits also, unless he can surcharge and falsify it by proofs, is not applicable to an account furnished by an executor. Where there is no trust or confidence, neither party is bound by any legal obligation to furnish the other with charges against himself, since each can and ought to preserve the evidences of his charges against the other; and the account rendered by *either must be taken as the confession of the party, and as such, on the general principles of evidence, must not be garbled, but taken altogether, except so far as it may be disproved. But as to executors, they are under a moral and equitable, and indeed a legal obligation, from the very nature of their undertakings, to furnish those to whom they are accountable, the means of charging them to the full extent of their liabilities; White v. Lady Lincoln, 8 Ves. 363; for, those having a right to claim an account have no other perfect means of getting this information.

The decree is, therefore, erroneous in not sustaining the exception to the commissioner’s report, in this particular.

As to the second question, we are of opinion, that after so great a lapse of time, and particularly in a case accompanied with the other circumstances above stated, it might be of mischievous tendency to sustain a suit like the present, except for the purpose of procuring refunding bonds against legatees, who had so long ago received their share of the estate, and consequently had no right to suppose that they were in debt to the estate; unless indeed, it was the wish of such legatees to have an account taken.

But, if we are further of opinion, that as the appellants did not revive or renew their suit, but permitted the matter to rest for four or five years after the death of the executor, the most certain way of obtaining justice in this case is, to consider all matters between the executor and the legatees, so far as relates to actual receipts and disbursements by the executor, up to the time of his death, as finally closed: that the appellants ought, respectively, to have been decreed to execute bonds with good security to the appellee, to indemnify the estate of his intestate against all future demands coming against the estate of the testator John Archer, so far as the value of the estate respectively received by them ; so as to place the parties in the situation they would have been in, had such bond been given when the property was received ; and that the bill, for every other purpose, be dismissed; and that each party pay their own costs in the said Court of Chancery. 
      
       The President and Judge Cabedd, absent.
     