
    *Chancellor v. Ashby.
    January Term, 1856,
    Richmond.
    Wills — Estate Managed by Son of the Testator- Pur* chase of Land Out of the Proceeds of Estate — Deed Made to Son. — A man dies, leaving his estate, consisting of land and negroes, by will, to his wife for life, or during widowhood, and after to their children, with the condition that if, while in possession, she should see fit to give any of the children any portion of the property, the executors should take a receipt for the same, and it should be deducted out of the share of such child at the division of the estate. The widow takes possession of the property and works the farm for the common benefit — all the children living with her and being supported by her until they are married or otherwise provided for. The eldest son manages the estate until the widow’s death, a period of fifteen years, and while thus engaged, persuades the widow to buy, out of the funds of the estate, ninety-five acres of land adjoining, and takes the deed to himself. At the death of the widow, the son, with another, administered on her estate; the other children then ask the son for a partition of this land, but it is postponed until his death, when he leaves a will, directing it to be sold for the benefit of his estate — he considering it as belonging to him; and that his services as manager, during the life of the widow, were a full equivalent for the land. Jt is purchased by one ignorant of these circumstances, and suit is brought lor the partition of the same among the other children. Held :
    1. Same — Same—Same- Effect — The son is a trustee for the widow during her life, and for the other children and himself after her death, and the property would be divided with the other children, but that,
    2. Same-Same — Same—Bona Fide Purchaser. — The purchaser of the land is a bona fide holder without notice of the equities of the claimants, and is entitled to hold the property.
    3. Same — Same—Rents and Profits. — The son is therefore bound to pay to the father’s estate the rents and profits of the land from the death of the widow until its sale, and the fair value of the land at that time, with interest from the day of sale.
    4. Same — Same—Compensation.—The son is entitled to a fair yearly compensation for his services as manager, but such compensation is to be charged against the estate of the widow, and not against that of the father.
    5. Same — Same—Same- Statute of Limitations. — The statute of limitations bars all recovery for such compensation, except for five years preceding the death of the widow.
    *Samuel Ashby, of the county of Fauquier, being- the owner of a considerable estate, consisting of a farm, slaves, stock, &c., died in 1816, leaving a widow, named Martha, and eight children, viz: Maria, who intermarried with Samuel Chancellor, Mary, who intermarried with Taliaferro P. Grantham, Catharine, who intermarried with Philip A. Tutt, John J. Ashby, William C. Ashby, Martha Ashby, Caroline Ashby, and John H. Ashby, commonly called Henry Ashby.
    By his last will and testament, Samuel Ashby, besides other provisions, devised and bequeathed all his estate, both real and personal, to his wife during life or widowhood, and directed, in case his wife should see cause to give their children anything while she had the estafe in possession, his executors should take a receipt for the same at valuation, and that should be deducted out of the part of the child so receiving, whenever a division of his estate should be made. He appointed his wife and several others executrix and executors of his will.
    Under the provisions of this .will, Mrs. Ashby took possession of the farm and personal estate, slaves, &c. of her deceased husband, and enjoyed the same for many years, and until her death, as tenant for life, having during all that period all her younger and unmarried children resident with and dependent on her.
    At the time of her husband’s death, her son, John H. Ashby, was a youth of sixteen or eighteen; and in the course of a year or two, as he grew up, he took upon himself the control and management of the estate, on which his mother resided as life tenant, and became in all respects her general agent. 'He induced her, in the year 1823, to purchase, out of the funds of the estate, from a certain John Evans, at the price of $2,483, an additional tract of land, adjoining that on which she resided, and containing about ninety-five acres, which he believed would increase the value of her farm, and materially enhance the facilities and profits of its cultivation.
    -*The deed for this land the said John H. Ashby, without the previous knowledge or consent of Mrs. Ashby, had made him, in his own name. After so doing, he informed her of his act, at which she was much displeased, and complained that the purchase had been made with the funds of her husband’s estate, and that the deed ought to have been made for its benefit. Her opposition was allayed by his assurances that he would account for the same, if necessary, with his co-heirs.
    No receipt appears to have been taken of John H. Ashby, for the purchase money of this land, by the executors of Sam’l Ashby, as in case of advancement from his estate was required. One of his executors, however, expressed to Mrs. Ashby apprehension, lest the fact of the title having been made to John H. Ashby alone, might hereafter cause some difficulty among her children, but she replied that she could not see how that could be, as the land had been purchased with the funds of her husband’s estate, and that she considered it as much the property of. all her other children, as of John H. Ashby, notwithstanding the conveyance was to him alone.
    It does not fully appear from what source the entire purchase money of the said tract of land was obtained, but a part was furnished by the sale of a slave belonging to Samuel Ashby’s estate, and both by Mrs. Ashby and John H. Ashby, the land appears to have been considered as purchased with the funds of her husband’s estate, and in contemplating the consequences of the purchase, both regarded it as part of that estate.
    After the purchase and conveyance of this tract of land as aforesaid, it. appears not to have been enjoyed by John H. Ashby, for his exclusive benefit, but to have been united to, and in cultivation blended with the adjoining farm held by Mrs. Ashby, and, as had been anticipated, enhanced the value and profits of the whole estate. The whole estate, thus formed, was managed and cultivated by him as general agent for his mother, in a judicious manner, but with unlimited control over *its products. In this way, for many years, he continued to reside with her, as did the other children, and during that time he lived liberally, (though not extravagantly), and as young men of his station usually did, he dressed well, occasionally took trips of pleasure, and, his health being delicate, sometimes traveled for its improvement, and all the while his expenses and the charges of medical attendance, &c. were paid out of the funds of his mother’s life estate. He was the cashier of his mother’s family, receiving and disbursing everything; and while he acted prudently and with affection to her, he neither denied himself necessary nor reasonable indulgences out of the funds under his control.
    During this time, he does not appear to have settled with his mother any account of his disbursements, nor was there any positive contract for compensation for his services, nor about the terms on which he acted. Acting as a son for a mother, he was allowed unbounded discretion, and enjoyed full confidence. These relations he maintained until the year 1829, when Mrs. Ashby died intestate. He and his brother, John J. Ashby, qualified as her administrators, and also, the executors of Samuel Ashby having likewise died, as the administrators de bonis non with the will annexed of Samuel Ashby, deceased.
    Soon after the death of Mrs. Ashby, application was made by Samuel Chancellor and the' other heirs and distributees of Samuel Ashby, deceased, to John H. Ashbj', to make partition of the tract of land conveyed to him alone as aforesaid, or at least to bring it into account on general settlement. Compliance with such application was from time to time postponed by John H. Ashby until his death, which occurred not very long after. He left a widow, Alcinda Ashby, and two infant children ; and by his last will and testament, directed the said tract of land to be sold for the payment of debts, and devised and bequeathed the whole of his estate to his wife for life or during widowhood, and afterward to his children, and appointed his wife his ^executrix. She qualified as sole executrix, and as such sold to her father, a certain Nath’l Grigsby, the said tract of land for $30 25 per acre. The claims, which had been previously asserted by some of the distributees< and heirs of Samuel Ashby, for a partition or account of said land, were renewed after his death.
    For the purpose of asserting' these claims, the aforesaid suit in chancery was instituted by the children of Sam’l Ashby dec’d against the widow and representatives of John H. Ashby, dec’d, and the said Nath’l Grigsby, as the purchaser of the said land. On the 6th July, 183S, a bill was filed, setting forth most of the above facts, and praying that, John H. Ashby might be considered as a trustee of the said land, and that his representatives might be compelled to partition or acccount for the same.
    Formal answers were put in for the infant children of John H. Ashby; and on the 7th May, 1836, answers were filed by Mrs. Alcinda Ashby, as widow and executrix of John H. Ashby, and by NathT Grigsby, the purchaser of the land in controversy. Mrs. Alcinda Ashby controverted the fact of the purchase of the said land with the funds of Sam’l Ashby’s estate, or of that of Mrs. Ashby, but, upon the supposition that such might be the case, asserted a claim on the part of her husband, John H. Ashby, for compensation for the services which he had rendered as general agent of his mother as aforesaid; and insisted that the said land was an advancement made to John H. Ashby under the will of Samuel Ashby, and that his services constituted a fair offset to it, and in a distribution of Samuel Ashby’s estate, ought to be allowed as such : and that in no event could the estate of John H. Ashby be held liable for more than the excess of such land over the amount due for his services.
    Nath’l Grigsby, in his answer, relied on his being a purchaser for value, without notice, and without objection made on the part of the complainants, some of whom witnessed his purchase. Much evidence was taken *in the case, but the material facts proven have been already detailed. The case having been regularly matured, on the 14th day of May, 1838, an interlocutory decree was pronounced, by which it was decided, that under the arrangement between John H. Ashby and his mother, Martha Ashby, the said John H. became entitled to the land in controversy, charged with a liability to account for the purchase money given therefor as an advancement to him, against which liability the sum due from the said Martha Ashby to the said John H. Ashby for his wages, while in her service, is a fair abatement — and, therefore, accounts were ordered to ascertain the amount due for the said wages, which were to constitute the abatement, and also the sums due to the complainants respectively from the estate of the said Henry Ashby, dec’d, on account of their several portions of the purchase money of the said land, with which the estate of the said Henry Ashby was chargeable as an advancement. And it was further ordered, with the consent of parties as to this, but without prejudice to their right to contest the former part of the decree, that accounts should be taken of the administration of John H. and John J. Ashby, as administrators of Mrs. Ashby, and administrators de bonis non of Samuel Ashby, deceased. Much additional evidence was taken before the commissioner, and the accounts ordered were taken and reported.
    In stating the account of the liability of John H. Ashby’s estate for the value of the" land in question, the commissioner charged it only with the original price of the land, and allowed compensation for his services for eight years and eight months, at $250 per annum, and reported a balance of only $316 34, with interest, against his estate.
    In regard to the other accounts, it is only necessary to add, that in consequence of the small sum allowed against John H. Ashby’s estate, only inconsiderable balances were reported as due most of the complainants ; and Samuel Chancellor having in the lifetime of *Mrs. Ashby been advanced to some extent, was reported to owe the sum of $168 46, with interest from the 13th January, 1835.
    Subsequently, on the 18th May, 1839, the court confirmed the report of the commissioner, and decreed that the amounts, reported as due to the several heirs and dis-tributees of Samuel and Martha Ashby, should be paid them, and that Samuel Chancellor should pay to the representatives of John H. Ashby $168 46, with interest, reported as due from him.
    From these decrees, Samuel Chancellor appealed to this court.
    No counsel appeared on either side, but the views presented on the part of the appellant appear, from the petition of appeal, to have been as follows:
    1st. The court erred in decreeing the price of the land for which John H. Ashby procured a conveyance to himself, an advancement, and in not decreeing the said land to be held liable to a resulting trust in favor of Mrs. Ashby for life, and after her death, of the heirs of Samuel Ashby.
    The land conveyed to J. H. Ashby ought, in no view, it is submitted, to be considered as an advancement. It was conveyed to him, without the knowledge and against the wish of Mrs. Ashby, and her acquiescence in the act, when done, was only obtained by his express engagement to account for it, if necessary, on final division. It was, notwithstanding the deed, considered, and spoken of by her, as part of the estate of her husband. It was not used and enjoyed by him for his own benefit, during the life of Mrs. Ashby, as an advancement must have been, but seems to have been cultivated in common with the rest of Mrs. Ashby’s life estate by him as her agent, and the funds appropriated- in like manner with those derived from the original farm. An essential feature of an advancement is thus wanting.
    It was no advancement from the estate of Samuel Ashby under his will, because the formalities therein ^'prescribed were, in no respect, observed. It was no advancement, by Mrs. Ashby, out of the profits of her life estate, because, both by her and himself allowed to be purchased with the funds of Sam’l Ashby’s estate — and because, then there could have been no obligation, but only an election, to bring into general account or hotch-pot, as was required. These- difficulties are all obviated, by considering the land in its true view, as held subject to a resulting trust. It is the very case of a resulting trust: land purchased with the funds of one person, and the title taken in the name of another. During the life of Mrs. Ashby, the trust resulted to her as part of her husband’s estate, and accordingly the land was blended with her other farm, cultivated for her by her agent, and the profits applied for her benefit. Viewed in this light, the consequences which would have ensued after her death, would have been precisely such as were contemplated by both herself and John H. Ashby. He was one of the heirs of Samuel Ashby, dec’d, and to the extent of his interest as such, the estate would have been freed from the trust, but for any excess, such trust would still result to his co-heirs, and he would be held to account.
    An important consequence, flowing from this view, is, that the enhanced value, at the time of Mrs. Ashby’s death, and not the original price of the land, must be accounted for. And this is reasonable. The principle on which an advancement is to be accounted for only at its value, when made, is that, from that time being enjoyed by the child advanced, it may be improved by his care and labor; but this land was held for Mrs. Ashby, was cultivated as hers by an agent, (who now even demands compensation;) and any enhancement in. value, while so possessed and used by the life tenant, ought to redound to the equal benefit of all the heirs of Samuel Ashby. This alone would make a material addition to the liability of J. H. Ashby’s estate.
    2d. The court erred in not deciding the price of the said land, if correctly held an advancement, to be an Advancement from the estate of Samuel Ashby, dec’d, and not from Mrs. Ashby.
    The decree is not very clear as to whence the advancement was derived, but appears to have held the advancement to have been from the mother’s estate. This is in direct opposition to the understanding of both Mrs. Ashby and her son. They regarded the purchase money to be the funds of Samuel Ashby’s estate, and to be accounted for to his heirs. Besides, in part, as trust, the land was paid for by the sale of a slave belonging to Samuel Ashby’s estate. The advancement being from the estate of Samuel Ashby, will be used, hereafter, in showing further error-.
    3d. The court erred in allowing any, and a fortiori, an excessive compensation to the estate of J. H. Ashby, on account rendered by him as his mother’s agent, and especially, (even if such compensation ought to have -been made,) in allowing it without previously requiring an account of the funds received and disbursed by him as such agent.
    The relation held by J. H. Ashby was that of a son to a mother, not an overseer or agent to his principal, and his motive was affection, not wages. The services thus induced were recompensed by unbounded confidence, and a liberality gauged only by his own sense of justice. The whole funds of the estate were received and disbursed at his discretion. Without other property, he was supported handsomely, lived liberally, and enjoyed himself in the station of a gentleman. What he wanted, he appropriated; in health supplied with every reasonable indulgence, he was, in sickness, attended and cherished, and all out of his mother’s fund. Were not his services thus fully repaid? At all events, if the confidential relation enjoyed by him be disregarded by the late demand of his representative, his estate ought to be held to account for the use of the funds received by him. How otherwise can it be ascertained, that he did not pay himself what his services were worth? That he is not a debtor instead of a creditor? *Bet him be once regarded merely as an agent exacting compensation, the right of his principal to an account of moneys received by him, becomes clear and indisputable. In any view, when the liberality with which he was treated is considered, the compensation allowed is excessive.
    4th. The court erred in making such allowance a proper offset against the claim of the heirs of Samuel Ashby, for partition or account of the said land.
    The claim for compensation could only be against the estate of Mrs. Ashby, as the services were rendered to her in the management of her life estate, and if allowed, constituted a debt to be paid bj her personal representative. The land in question, as heretofore shown, was purchased with the funds of Samuel Ashby, and was considered as part of his estate. The prayer of the bill was for an account and distribution of Sam’l Ashby’s estate, and of this land as part thereof. How, then, could a personal claim against Mrs. Ashby’s estate be, with any propriety, offset against land belonging to the estate of Samuel Ashby, and so claimed. Possibly it might have been decreed against his personal estate, but could constitute in this suit no abatement to the land claimed by Sam’l Ashby’s heirs.
    5th. The court erred in allowing such compensation, for a time barred by the statute of limitations.
    This appears just that kind of claim, to which the. statute of limitations most equitably applies. A claim not asserted in the lifetime of the parties, when a full understanding of the terms of contract might have been had, and a settlement been easy, but trumped up against the estate of a deceased person, and running back through a long series of years, during which it had slept. A claim like this, both policy and justice require to be put under the ban of the law.
   TYI/E5R, J.

The court is of opinion, that there is error in so much of the decree in this cause, pronounced on the 14th of May, 1838, as declares the land in controversy *to be an advancement, by Martha Ashby, ex’x of Samuel Ashby, pursuant to the provisions of the will of said Samuel — the said John H. Ashby being, in the opinion of this court, a trustee as to said land for the use of his mother for life, and after her death, for the use of himself and the other heirs or distributees of said Samuel Ashby. But as Nathaniel Grigsby was a purchaser of said land for valuable consideration, and without notice of the equity of the plaintiffs, the representative of John H. Ashby is liable to account for the rent, issues and profits of said land from the death of Martha Ashby, or from such time as said John H. Ashby commenced the occupation and enjoyment thereof, to time of the sale of the land to the said Nathaniel Grigsby; and is also liable to account for the price of the land sold to said Grigsby, with interest thereon.

The court is further of opinion, that the court below erred in overruling the exception taken by the plaintiffs to the commissioner’s report, to wit: that the statute of limitation was a bar to the recovery of compensation by the said John H. Ashby for more than five years, and that said exception should have been sustained; and that there was also error in the decree aforesaid, in directing the sum due the said John H. Ashby, for services rendered the said Martha Ashby, to be allowed as an abatement to the purchase money of said land, this court being of opinion that the amount of compensation due to said John H. Ashby was chargeable to the estate of Martha Ashb37. And as no exception was taken in the court below as to the quantum of compensation, that being a question liable to be affected by extraneous testimony, but only an exception as to the time the said John H. Ashby was entitled to claim such compensation, the court is of opinion that the said John H. Ashby should be allowed, against the estate of Martha Ashby, dec’d, the sum of $250 per annum, for a period of five years preceding the death of said Martha Ashby.

The decree here, was, that the several decrees complained *of in the record be reversed and annulled, and that the appellant recover, against the ap-pellee, his costs expended in the prosecution of his appeal, &c., and this cause is remanded to the Circuit Court of the county of Fauquier, to be proceeded in according to the principles herein set forth and declared.

JUDGE FIELD dissents from so much of the decree as allows the sum of $250 per annum, for five years, for services of John H. Ashby.

The other judges concurred in the opinion of TYLER) J.  