
    
      Hayes and Others v. Goode and Others.
    April, 1836,
    Richmond.
    (Absent Brooke, J.)
    Wills — Inability to Divide Personalty under — Effect— Case at Bar. — A testator devised a tract of land to trustees, in trust to copivey the same to a particular grandson, son of testator’s son W. B. on his attaining the age of 21, and in case of his death before that age without leaving issue, to convey the same to any afterborn son of W. B. who might then be the oldest surviving son, on his attaining the age of 21 ; but if there should be no son of W. B. to take his said land, then to convey the same to any daughters of W. B. in fee simple, in equal proportions ; and for want of any children of W. B. then in trust for his right heirs and their heirs forever. By another clause of his will he gave slaves and personal property, to the same trustees, in trust to divide the same equally among the children of his sou W. B. taking his land, in proportion to the quantity held by each. The particular grandson named died an infant and unmarried, and W. B. died without ever having any other child. Held, no division of the slaves and personalty could be made under the will, but as to the same the decedent was intestate.
    Same — Suit for Settlement of Accounts of Executor-Lapse of Time — Effect.—A testator died in 1782, and his will was proved and the executors qualified in that year. The chief acting executor died in 1792, and in the following year the account of that executor was settled, ana the balance thereby appearing due was paid over to the surviving executor. In December 1797, a suit was brought by legatees against the surviving executor and the representative of the deceased executor, which suit was discontinued in October 1806, for want of prosecution. The surviving executor died iu the latter part of 1808 or beginning of 1809 ; and in April 1809 a second suit was brought, making defendants thereto the representatives of both executors, the surviving sureties of the executors, and the representatives of those sureties who had died. New parties were frequently made : numerous accounts were ordered ; and from remissness of the plaintiffs, and other causes, the case lingered for a long time. In October 1827, the chancellor decreed that the bill be dismissed. On appeal from this decree, Held, the great lapse of time before the suit was commenced, together with the remissness in prosecuting it afterwards, was a sufficient'reason for refusing to entertain the bill against representatives and sureties, especially as the circumstances *appearing in the case tended to shew that the debts due fiom the testator were sufficient to exhaust his slaves and personal assets.
    Bill to Subject Lands Descended to Heir — Lapse of T¡me* — Effect—Case at Bar. — In 1793, the mortgagee of a tract of land filed a bill against the mortgagor’s devisee, in which suit the devisee insisted that the mortgagee had a remedy against other lands of the testator which had descended to his heir, and that those other lands ought first to be sold to discharge the mortgage debt. A decree of foreclosure however was made, and a sale or-dc re cl of the mortg'ag'ecl premises. This decree was in 1797, and the devisee immediately sold the land and paid the debt. In 1824, the devisee filed a hill insisting- that both the testator’s personal estate and the lands descending to his heir were liable to pay the debt, in ease of the mortgaged premises. Hisim, after so great a lapse of time the claim could not be admitted, but must be rejected as stale.
    William Black the elder, of the comity of Chesterfield, by his last will and testament duly made and published, devised and bequeathed (inter alia) as follows—
    ‘ ‘Imprimis, I give, devise and bequeath unto the honourable John Blair and to the honourable Peter Lyons, esquires, and to their heirs forever, all that tract of land whereon I now live, called and known by the name of the Palls plantation, with all its appurtenances; in trust nevertheless, that they the said John Blair and Peter Ljrons, or their heirs, or the survivor of them or of their heirs, shall convej' the same in fee simple unto my grandson William, son of William Black my son and heir apparent, on his attaining the age of 21 years, and that in case of his death before that age without leaving issue, that they shall convey the same in like manner to any afterborn son of my said son William who may then be the eldest surviving son, on his attaining the age of 21 years; provided always that if my said son William shall have two sons who attain the age of 21 years, living at the same time, that in such case the said trustees or the survivor of them, or their heirs or the survivor of them, shall convey one thousand acres of the said plantation, at the lower end, unto the youngest of such sons and to his heirs forever, with a special provision that if *there shall be another son born to my son William than the two already provided for, that then on such son’s attaining the age of 21 years, my said trustees or the survivor of them, or their heirs or the survivor of them, shall convey unto such third son, at his age of 21 years, one half of the thousand acres of land last mentioned, at the lower end thereof, to him and his heirs forever; but if there shall be no son of my said son William to take my said land, agreeable to the meaning of this my will, then in trust to convey the same to any daughter or (if more than one) daughters of my said son William, in fee simple, in equal proportions; and for want -of any children of my said son William, then in trust for his right heirs and their heirs forever; and in further trust to permit my dear and loving wife Prances, to hold, use, occupy and enjoy one half of the said Falls plantation, including the dwelling house, mill and other houses, together with all the profits arising therefrom, and one half of all my stock of cattle, sheep, hogs, horses, mares and colts which may remain unsold and shall be reserved for the use of the said plantation, during the term of her natural life or widowhood, in lieu and bar of dower in my estate; and also in further trust to permit my said wife Frances to work the whole of the Falls plantation during her life or widowhood, with all the slaves excepting those which are hereafter otherwise disposed of, and the whole of the stock which shall remain unsold, upon condition that my said trustees and their heirs and the survivor of them, and my said wife Frances, do and shall either permit my son William and his family, and the survivors of them, to live in the mansion house with her, and be supported from the produce of the plantation, or (in case of disagreement) that he shall be allowed, with his family, previous to and after his death, to live separately and apart, and to be furnished by my executors at their discretion from the produce of the plantation, in either case, with provisions, *clothing and other necessaries for himself and family, either in kind, or in money to purchase them.
    7. Item, all my negroes, or any part; remainder or reversion of them not already disposed of, and all the remaining stocks of cattle, sheep, hogs, horses, mares and colts, I give and bequeath unto the honourable J. Blair and P. Lyons, esquires, and their heirs forever, in trust to divide the same and their increase equally among the children of my son William taking my land, in proportion to the quantity held by each.”
    The will bore date the 23d of January 1782. It was proved before the county court of Chesterfield on the 5th of April 1782.
    The testator at the time of his death left a widow and three children. His son William Black junior, and his daughter Anne Dent, who had married Mr. Hardiman, were children by a former marriage. His daughter Frances T. was a child by the last marriage. The grandson William mentioned in the will was also alive at the testator’s death.
    At the time the will was proved, Robert Goode one of the executors therein named qualified as such, and gave bond in the penalty of ¿50,000. with Samuel Goode as surety. On the 7th of June following, Turner Southall another of the executors qualified and gave bond in the same penalty, with Francis Goode and Bernard Markham as his sureties. An inventory of the personal estate was returned the 6th of September 1782, with an appraisement thereof amounting to ¿6749. 10. The executors made sales of personal property in May 1782, amounting to ¿3071. 9. sales of slaves in December 1782, to the amount of ¿2121. 18. 6. and further sales subsequently.
    On the 2d of August 1782, Frances Black the testator’s widow filed her bill in the county court of Chesterfield against the executors, stating, that not being satisfied with the provision made for her by the will, she *had, by deed duly attested, declared that she would not accept, receive or take the legacies given to her, and would renounce all benefit and advantages which she might claim by the will; that she had applied to the executors for the allotment of her dower in the slaves and for her share of the personal estate, but the executors had refused to assign the same, alleging that the debts of the testator would absorb all his slaves and personal estate. She charged that there was a sufficiency of personal estate to pay the debts and leave a surplus, and moreover insisted that her portion of the slaves was not liable to debts, except the reversion thereof at her death. The two executors, Goode and Southall answered that the debts, by accounts and other vouchers which had come to their knowledge, amounted to nearly or upwards of ^4000. and they had strong reasons to think might in the end be little short of ^2000. more. The amount which would be received from the debts due to the testator, they thought, would be very trifling. They positively denied that the testator’s estate in their hands would be sufficient to pay his debts, without the sale of a number of the slaves. Considering the debts a charge upon the slaves as well as upon the other estate, they did nut think themselves justifiable while those debts remained unsatisfied, in assenting to a partition of the estate. On the 6th of September 1782, the county court, declaring its opinion •to be that the widow’s dower in the slaves and her share of the other personal estate were subject in common with the rest of the estate to the payment of the testator’s debts, decreed that the complainant should enter into bond with sufficient security in the sum of ^4000. for indemnifying the executors against the demands of the testator’s creditors, and appointed commissioners to settle the accounts of the executors and allot to the widow one third part of the slaves and personal estate. The complainant appealed from so much of this decree as declared *her share of the slaves and personalty to be subject to the testator’s debts; but the appeal does not appear to have been ever prosecuted.
    William Black the grandson of the testator died in October 1783, while an infant and without having married. The testator’s son William Black died in October 1784. His will bears date the 4th of February 1784, and was admitted to record in the county court of Chesterfield at December term 1784. He left no child, and gave his estate, after the payment of his debts, to his wife Elizabeth.
    Mrs. Hardiman made purchases at- the sales of the estate in May 1782, and executed her bonds for these purchases; so that the inference is she was then a widow: and she was probably a widow at the testator’s death. Some considerable time after her father’s death, but prior to June 1794, she married James Hayes. Frances T. Black married John Garland prior to the year 1793.
    Robert Goode did very little as executor of Black, during the life of his co-executor Southall. Southall died in 1792, and was, from his qualification in 1782 until his death, the chief acting executor. Soon after his death, Stephen Southall his executor went into a settlement of his testator’s ex-ecutorial account on Black’s estate, before commissioners appointed by the court of probat, and they reported a balance due to the estate of Black from his executor Turner Southall of .£35. 15. 3. This settlement was made the 6th of February 1793, and was returned and admitted to record during the same month. The balance so reported due from Turner Southall was on the 9th of October 1794, paid by his executor to the attorney of Robert Goode the surviving executor of Black.
    Some suits were brought against the executors of Black in Southall’s lifetime, to recover debts due from the testator, but more were brought after Southall’s death. *On the 4th of June 1793, a judgment was rendered in favour of Wallis & Bartlett merchants of Great Britain, against Robert Goode as surviving executor of Black, for 930 dollars 96 cents, with five per cent, interest from June 4th 1793 till paid; upon which a fi. fa. issued the 8th of February 1794, and was returned “no property found.” Judgments were obtained against the same executor on the 30th of December 1794, by Henderson, M’Caul& Co. for 1745 dollars 36 cents, with five per cent, interest from September 3d 1783; on the 29th of May 1797 by Heil Jam-ieson & Co. for 691 dollars 93 cents with interest at ten per cent, from June 4th 1793;; and on the 7th of April 1801 by Samuel Turner & Son for £2&7. 13. with interest at five per cent, from that day. At the foot of the last judgment, there was a memorandum, stating, that by consent of the plaintiffs it was not to be considered an admission of assets in the hands of the defendant.
    Some time after the last mentioned judgment, the plaintiffs Samuel Turner & Son filed a bill in chancery in the circuit court of the United States holden at Richmond, setting forth that they had not been able to-obtain payment of the judgment from Goode, who alleged that he had no assets ; but whether this was so or not the plaintiffs could not say, and therefore praying a discovery: stating, however, that several bond and judgment creditors had been paid out of the personal estate, and consequently that they were entitled to stand in the place of those creditors and charge the real estate. The answer of Goode, after mentioning that all or the greater part of the business of the estate of Black was transacted by Southall during his life, stated that since the death of Southall a very inconsiderable amount had been received by Goode, which had been paid to judgment creditors previous to any notice of the complainants’ demand. He averred that there were no assets to pay the plaintiffs, except a balance due upon a judgment ^against Alexander Trent, and also a balance upon a judgment against William Gay. He mentioned a third debt due from John Garland, for which judgment had been obtained, but stated that Garland died insolvent. The affidavit to this answer bears date the 10th of June 1808.
    On the first of July 1793, Cadwallader Evans, administrator de bonis non of Amos Strettel deceased, brought suit in the high court of chancery against James Hayes and Anne Dent his wife, for the foreclosure of a mortgage executed by William Black on the 20th of September 1777 upon the Falls plantation, and for a sale of the mortgaged premises. The mortgage was to secure two bonds, executed on the same day therewith, one for ¡£2000. payable in September 1782, and bearing interest in the mean time at the rate of five per cent. ; the other for ;£2500. payable on the 25th of March 1778, with five percent, interest. The bill stated that the plaintiff was informed the executors had not assets to pay the debt, and it set forth the following facts in relation to the second bond, viz. that Black had agreed to sell to Strettel a tract of land containing 10,000 acres, lying at or near the head of Dan river in Henry county, including upwards of 3000 acres of rich natural meadow near the great road leading from the southward to Pennsylvania, for which Strettel paid him ¿£2500. and the bond was executed for the same money, but was to be discharged by a conveyance of the said land in fee simple, with a general warranty, free from all incumbrance but quit rents, on or before the 25th of March 1778; but that no such conveyance had been made, and that Black was in truth entitled to no such lands. Hayes and wife, by their answer, stated that Black died seized of a large tract of land containing ten thousand and fifty two acres in Henry county, which was purchased from and conveyed to him by Peter Copeland ; they insisted that the complainants ought to be obliged to pursue their remedy against the land in Henry county, or at all events that *the said land ought first to be sold to discharge the mortgage debt, so far as the proceeds would extend: and they further stated that the legal title to that land had descended to the testator’s son William Black, from whom it passed to the son’s widow. Elizabeth Black the widow of the son married Willis Wilson. Wilson and wife filed an answer, mentioning that they had been admitted defendants, and stating, that on the 15th of September 1778 Black the elder purchased of Peter Copeland 7675 acres of land in Henry county; that this did not appear to be the same land contracted to be sold by Black to Strettel, because it did not answer the description either in quantity •or situation; that it did not appear that Black was either entitled to or possessed of the said 7675 acres of land at the time he contracted with Strettel; and that they believed there was no such tract as that of 10,052 acres stated to be conveyed bjr Peter ■Copeland. An order was made for a survey of the land conveyed by Copeland, and on the coming in of the surveyor’s report, the court, on the 7th of June 1797, pronounced a decree foreclosing the mortgage on the Ealls plantation, and appointing commissioners to sell the same.
    On the 9th of December 1797, James Hayes and Anne Dent his wife, and William Claiborne and Prances his wife, filed a bill in the high court of chancery, setting forth that the testator William Black left the plaintiff Prances his widow, and two children, viz. a son named William and the plaintiff Anne; that William the son had children, all of whom died in his lifetime, and the said William had also died; alleging that by the will of William Black the elder, the estate bequeathed to his son William was so disposed of that no part of it could vest absolutely in him, and that it was intended that he should only have a maintenance out of it during his life; and stating that the plaintiffs were advised that they were entitled to such of the personal estate of William *Black the elder as yet remained unadministered in the hands of his executors. The bill stated that Robert Goode one of the executors had never settled his accounts. It mentioned the settlement by Stephen South-all executor of Turner Southall the other executor, but averred that the plaintiffs were ignorant whether or not that settlement was a proper one, — made Robert Goode and Stephen Southall executor of Turner Southall defendants, and called for a settlement by both defendants before a commissioner of the court. Answers were filed by both defendants. The answer of Southall stated that his testator fully administered all the estate of Black which came to his hands, except ¿£35. 15. 5Rj. and a commission of five per centum allowed by the court of Chesterfield county to his testator for nis trouble in administering the same; that his codefendant Goode was present at the time of the settlement, and expressed his approbation of the statement made by this respondent; that respondent conceived the compensation allowed by the court for the trouble, expense and risk incurred by his testator was inadequate, and trusted that on the final hearing of this cause, further compensation might be decreed. Goode answered that the most considerable part of the estate was, in the lifetime of Turner Southall, administered by him, and after-wards accounted for in a settlement by Stephen Southall the executor of Turner Southall, which settlement respondent was privy to and expressed his approbation of ; but he submitted, that if upon a re-examination it should appear there were errors in the account so settled, his approbation then expressed should not tend to his injury. Goode further stated, that his testator directed by his will that a comfortable subsistence for his son William Black junior should be procured at the discretion of his executors; in compliance with which request, the necessary articles for housekeeping were, at the sale of the estate, purchased for the use of the son, which respondent *was ready to shew. He further stated that the complicated situation of his testator’s affairs had hitherto prevented a final adjustment of his accounts; but so, far as he had administered, he had ever been and still was ready to settle, and give a proper account of the same. The affidavit to Southall’s answer bore date the 19th of March 1798; that to Goode’s answer, the 12th of May 1798: and at September term 1798, an order was entered for an account. In this situation the cause stood until the 2d day of October 1806. On that day an order was entered in the cause, with the caption James Hayes and his wife Anne Dent Hayes plaintiffs (without naming Claiborne and wife at all) stating that the suit abates as to the plaintiff James Hayes by his death, and is dismissed as to the other plaintiff, she having been solemnly called and failing to appear.
    Robert Goode the surviving executor of William Black died shortly before April 1809. On the 14th of that month a new bill was filed in the superior court of chancery for the Richmond district, in the name of Anne Dent Hayes, and William Claiborne and Erances his wife, containing allegations similar to those in the first bill. The dismission of the first suit for want of prosecution is stated not to have been known to the plaintiffs at the time. It is set forth that the slaves and other personal estate were appraised at ¿£6749. 10. a sum less than the real value; that the executors made sale of the greater part of the slaves and all the personal estate; that they returned no inventory of the debts and credits, although yery large sums were due and owing to the testator, which were or might have been collected; and that they have never exhibited any account further than the account settled by Stephen Southall: and the plaintiffs charge that they have converted considerable sums and considerable property of the estate of the testator to their own use. Stephen Southall is stated to have died, and to have left James Southall surviving, *who was co-executor with him of Turner South-all. The bill makes defendants, Richard and Francis Goode administrators with the will annexed of Robert Goode, who was surviving executor of William Black the elder; Samuel Goode surety for the said Robert; Peyton Southall and John Daingerfield executors of James Southall, the surviving executor of Turner Southall, who was the other executor of William Black; the representatives of Bernard Markham, and Thomas Harris executor of Francis Goode; which two last named decedents were sureties for Turner Southall as executor.
    At September rules 1810, Mary Markham and George Markham executrix and executor of Bernard Markham, and Richard B. Goode and Francis Goode administrators with the will annexed of Robert Goode, filed their answers. The executors of Markham relied upon the settlement made by the executors of Turner Southall, shewing a balance of £3S. IS. 5J¡¡. due to Black’s estate; insisted that they ought not in equity to be compelled to pay money as sureties, until the estate of the principal was exhausted; and alleged that Turner Southall left estate abundantly sufficient to pay any balance due from him.
    The administrators of Robert Goode said, they had always understood, and believed it to be true, that Turner Southall was the principal acting executor of Black until his death; that after Southall’s death, Robert Goode continued to act until his own death, which happened in 1809. From the great length of time that Southall acted, as well as from the answer of Robert Goode to a bill exhibited against him and others by Turner & Son in the federal court for the district of Virginia, the respondents were induced to believe that all or the greater part of the estate of Black had been administered by Southall before his death. They were ignorant of the debts due to or from the estate of Black, except three debts due to the estate from William Gay, Alexander *Tren't and John Garland, of each of which debts, they believed, a balance was yet due, but the amount was not known; and Gay and Garland were both insolvent, and the situation of Trent not known to the respondents. They did not know what was the amount of the estate of Black which came to the hands of their testator, but from information derived from him in his lifetime, and an imperfect examination of his accounts, they' believed he was the creditor of Black’s estate.
    To the answers of these four defendants, the plaintiffs replied generally. At June rules 1811, the cause was set for hearing as to those defendants, and abated as to the plaintiff William Claiborne by his death. And on the 4th of February 1812, the court made an order directing Robert Goode’s administrators to render an account of the said Robert’s administration of Black’s estate, before one of its commissioners.
    At September rules 1811, a decree nisi was entered against the defendant Thomas Harris, but it does not appear to have been executed. At March rules 1812, Peyton Southall and John Daingerfield executors of James Southall filed their answer. They said that as to the transactions on Black’s estate, or what share Turner Southall had in them, they knew nothing. They relied on the report of the commissioners appointed by the county court of Chesterfield, by which a very inconsiderable balance was found against the said Turner Southall, insisting that the report must be taken as correct until impeached by the plaintiffs by specified objections, supported by evidence. They stated, however, that their testator never acted as executor of Turner Southall, and never received one shilling of his estate, and that small as the balance due from Turner Southall was, they were not liable for it, but the representatives of Stephen Southall. To this answer the plaintiffs replied generally. At October rules 1812, the case was set for hearing as to these defendants.
    *The order made the 4th of February 1812, directing an account of Robert Goode’s administration of Black’s estate, was placed in the hands of commissioner Brander, who made a report on the 24th of June 1812, shewing the adjournments which had taken place, without any thing being done except taking the deposition of Willis Wilson on behalf of the plaintiffs, which he returned ; to which the defendants objected as being ex parte and without notice.
    At July rules 1812, the suit abated as to Richard B. Goode one of the administrators of Robert Goode, by his death. It then stood against Francis Goode as surviving administrator, but he dying also, on the 30th of January 1815-a subpoena scire facias issued to revive it against Tarlton Saunders as administrator de bonis non with the will annexed of Robert Goode. This process was returned executed, and at April rules 1815 an order was entered for the suit to stand revived accordingly.
    At June rules 1815 a decree nisi was entered against Linnaeus Bolling as executor of Bernard Markham, which being duly served he filed his answer at November rules 1815, in which he relied upon the answer of his co-executors George Markham and Mary Markham. Upon this answer being -filed, a general replication was put in.
    On the 30th of December 1815, commissioner Thomas Ladd returned a report. He remarked, that while the amount of the ap-praisement of Black’s estate was ^6749. 10. the amount of sales was only ^6148. 6. 2. and that the deficiency appeared to arise mostly, if not altogether, from the value of 49 of the slaves willed away and not sold. Of the sales which were made the executor Turner Southall, he said, appeared to have received and credited in his executorial account the sum of ^3323. 1. 10. which account had been settled by commissioners appointed by the county court of Chesterfield, and was not now surcharged and falsified *-by any of the parties. Of the sales, the commissioner said that Robert Goode appeared to have received, as credited by him, the sum of £593. 16. 2. The commissioner thereupon stated the following accounts. — 1. Of Robert Goode’s ex-ecutorship, commencing in 1782 and ending in 1792 — 2. Of Richard B. Goode’s transactions with the estate of Black, commencing in 1792 and ending in 1802 — 3. Of Andrew Ronald’s transactions for the estate of Black — 4. A joint account of Turner South-all and Robert Goode as executors of Black, shewing the amount supposed to be due the estate of Black, if each executor was responsible for the other. The commissioner did not state clearly the connection of Andrew Ronald with Black’s estate, nor in what character Richard B. Goode acted from 1792 to 1802. Prom the items in the accounts, it may be conjectured that Ronald was counsel in some cases for Black in his lifetime and for his executors afterwards, and that Richard B. Goode acted in the lifetime of Robert Goode as the agent of the latter.
    At April rules 1816, a decree nisi was entered against Samuel Goode, the surety of Robert, which appears to have been served on him the 19th of October 1816.
    In June 1816, the plaintiffs by leave of the court filed an amended bill, making defendants in the cause, William Wood administrator of Stephen Southall, who was executor of Turner Southall, who was executor of William Black, and Alice Goode surviving executrix of Francis Goode, who was surety of Turner Southall as executor of Black: and praying process of revivor against Martha Goode administratrix with the will annexed of Francis Goode, who was administrator of Robert Goode; Maxwell Trokes and Sarah his wife, adminis-tratrix, and James Scott junior, administrator, of Richard B. Goode also administrator of Robert Goode; Robert Anderson the legal representative of Pey-ton Southall; and Caroline Matilda Harris, William A. Turpin and Edward Cox ^executrix and executors of Thomas Harris, who was executor of Francis Goode, who was surety of Turner Southall as executor of William Black. In this same bill, a doubt is expressed whether Tarlton Saunders administrator de bonis non of Robert Goode was properly made a party by scire facias, and he is again made a defendant by this bill.
    At February rules 1817, answers were filed by several defendants. William Wood answered that he was the administrator of Stephen Southall, but that, by an order of Henrico court, security was required of him, which he failed to give, with a view that the estate might be taken out of his hands; that there were no assets in his hands belonging to the estate of Stephen Southall; that after him, George F. Stras had charge of the estate, with all the papers, a considerable bulk of which respondent believed to have had some relation to Turner Southall’s executorship of Black’s estate; and that they remained in the possession of Mrs. Stras widow of George F. Stras. The answer of Tarlton Saunders, administrator de bonis non with the will annexed of Robert Goode, stated that he was for many years before the death of Robert Goode upon terms of the strictest intimacy with him and his family, and had always understood, and believed it to be true, that Turner Southall was the principal acting executor of William Black; that respondent was unable to make any further answer than was made by Richard B. and Francis Goode as administrators of Robert Goode, which he adopted as his answer; and that he believed the account which they had rendered of Robert Goode’s administration on Black’s estate, was a full, fair and just account of the same. Alice Goode answered that she was not the executrix of her husband Francis Goode, and knew nothing of the matters alleged in the bill. To these answers the plaintiffs replied generally. And at October rules 1817, the cause was set for hearing as to the said three defendants.
    *At April rules 1817, an order of publication which had been entered against Trokes and wife having been executed, the cause stood revived against them. A like order was made as to the defendant Robert Anderson, on whom the subpoena scire facias appeared to have been executed. At June rules 1817, a decree nisi was entered against the defendants Caroline Matilda Harris, William A. Turpin and Edward Cox, acting executrix and executors of Thomas Harris, which was returned duly served.
    On the 6th of February 1818, the court made an order recommitting the report of commissioner Badd to that commissioner, with instructions to report the administration account of Robert Goode, without blending therewith the administration of Turner Southall on the estate of Black. The court also directed the following additional accounts, viz. 2. A.n account of Turner Southall’s administration of the estate of Black. 3. The joint account of Robert Goode and Turner Southall as executors, if the facts should require such. 4. An account of the administration of Stephen Southall on Turner Southall’s estate. S. An account of William Wood’s administration of the estate of his intestate. 6. An account of the administration of Richard B. Goode and Francis Goode the younger, on Robert Goode’s estate. 7. An account of the administration of Maxwell Trokes and wife and James Scott junior, on the estate of Richard B. Goode. 8. An account of the administration of Martha Goode on the estate of her testator. 9. An account of Tarlton Saunders as administrator de bonis non of Robert Goode. 10. An account of James Southall’s administration of Turner Southall’s estate. 11. An account of Peyton Southall’s administration of James South-all’s estate. 12. An account of Robert Anderson’s administration of Peyton South-all’s estate. 13. An account of the administration of Thomas Harris of the estate of Francis Goode the elder. 14. An account of Caroline Matilda Harris, *William A. Turpin and Edward Cox, as executrix and executors of Thomas Harris. IS. An account of George Markham and Einnasus Bolling as executors, -and Mary Markham as executrix, of Bernard Markham. The order provided that the plaintiffs might waive the taking of such of the accounts as should appear to them to be unnecessary, unless the defendants or some of them should require the same, or the commissioner himself should deem them necessary to a just decision of the cause.
    On the 14th of February 1818, on' the motion of the defendant Samuel Goode, leave was given him to file his answer, which was filed accordingly. He said, that if he was the surety of Robert Goode as one of the executors of William Black, it was a circumstance which had altogether escaped his recollection, nor was he ever, either directly or indirectly, apprised of his situation as such, until the month of September 1815, — an omission for which he could not account, and one which he believed had deprived him of the means of substantiating many facts tending to elucidate the transactions of the executors; and at that distance of time, after a lapse of between thirty and forty years, he was compelled to rely for the most part upon a general exposition of -the case. He then proceeded to give his view of the case, insisting that the plaintiffs had no claim against Robert Goode, but if they had, that he as surety of Robert Goode ought not to be held liable until the assets of Robert Goode’s estate were exhausted. This answer was sworn to before a justice of Mecklenburg county, on the 31st of December 1817. With it, various exhibits were filed to support the view of the case taken in it. The plaintiffs replied generally.
    At April rules 1818, the defendants Caroline M. Harris, William A. Turpin and Edward Cox, executrix and executors of Thomas Harris, put in their answer, stating, that so far from their testator having any thing in his *hands belonging to the estate of his testator Francis Goode, the estate of the said Francis was in fact indebted to him; and insisting upon the payment of that debt, in preference to the supposed claim of the plaintiffs. To this answer also the plaintiffs replied generally; and at December rules 1818, the cause was set for hearing as to the said defendants.
    Commissioner Eadd made a.report in part, on the 12th of January 1819; and further reports on the 4th, 8th and 15th of June following.
    On the 22d of January 1820, the court made an order on the motion of Tarlton Saunders, directing the commissioner to complete the account of said Saunders’s administration ; and on the 29th of that month a report was made pursuant to the said order.
    To the’report of January 1819, the defendants filed exceptions. On the 6th of March 1820, the court, approving that report so far as not excepted to, recommitted it so far as it was excepted to, with the exceptions, for the commissioner to reconsider the sajme and report thereupon, and to proceed to take the accounts as directed by the order of February 5, 1818. And the court further ordered, that if there should be any necessary account not ordered in relation to the subject in controversy, the commissioner might proceed to take it in like manner as if specially directed.
    On the first of March 1821 another report was filed, bearing date on the 27th of February.
    On the 9th of June 1821, on the motion of the defendant Samuel Goode for a rule upon the plaintiffs, that unless they should amend their bill, and make Samuel Taylor, a surety for Richard B. and Francis Goode’s administration of Robert Goode’s estate, a defendant, this suit should stand dismissed, the chancellor deeming it improper that he should decide the cause, ordered the clerk to transmit the same to the superiour court of chancery for the Fredericksburg district.
    *Upon the removal of the cause to Fredericksburg, an amended bill was filed, making Samuel Taylor, Thomas Goode and Tarlton Saunders defendants, as sureties for Richard B. and Francis Goode the administrators of Robert Goode. A copy of the administration bond was filed, which appeared to be in the penalty of 15,000 dollars.
    At May rules 1822, the defendants Samuel Taylor and Tarlton Saunders put in separate answers, insisting that Robert Goode was not indebted to Black’s estate, and that Richard B. and Francis Goode had committed no devastavit. Taylor stated that those administrators had delivered property to legatees, and taken refunding bonds; and suggested that the legatees ought to be made defendants. To these answers the plaintiffs replied generally. And at April rules 1823 the cause was set for hearing as to those defendants.
    At August rules 1822 the suit abated as to the defendant Thomas Goode by his death, anda subpoena to revive was awarded against Isaac Salle sheriff of Chesterfield county, to whom the estate of Goode had been committed for administration. This subpoena being returned executed, an order was entered at October rules 1822 for the suit to stand revived, and at January rules 1823 a decree nisi was entered against the same defendant.
    At May rules 1823 a subpoena to revive was awarded in the name of Frances Eggle-ston administratrix of the plaintiff Fiances Claiborne deceased, against Thomas Goode and Thomas W. Jones executors of the defendant Samuel Goode. At June rules 1823, by direction of the plaintiffs’ counsel, the suit was discontinued as to those defendants, and a subpoena to revive was awarded against Mary Goode as executrix of Samuel Goode, and also against Overton B. Pettit administrator of William Wood. This process not being returned, new process was awarded at July rules 1823, which was returned with affidavits of service.
    *At October rules 1823 an answer was put in by Josiah B. Abbott as administrator de bonis non with the will annexed of William Black, and at April rules 1824 an answer was filed by Mary A. Goode the executrix of Samuel Goode; and the cause was set for hearing- as to both of those defendants.
    On the 6th of May 1824, on the motion of the plaintiffs, leave was given them to file an amended and supplemental bill, which they accordingly filed at August rules following. This bill stated that William Black junior, the son of the testator William Black, had at the time the will was written (23d of Jamtar3r 1782) but one child, the same William Black the grandson named in the will, and never at any period afterwards had another. The grandson was born in 1781, and survived his grandfather, and died in October 1783. As he never attained the age of twenty-one years, the complainants insisted that he never was capable, according to the conditions and limitations of the will, of taking the Falls plantation, which was left in trust for him on the condition of his arriving at that age; and that as he never took the land, the bequest of the residue of the slaves and stocks of cattle &c. to him was equally inoperative, and that legacy never vested; and that therefore the said William Black the elder died intestate as to these. He left at his death three children, namely, William Black junior and the plaintiff Anne Dent Hayes (then Anne D. Hardi-man, a widow) children by a former wife, and Frances T. Black the only child by his last wife, all of whom were equally entitled to distribution. The complainants admitted that as the law then stood, the slaves descended to the heir; but the heir, they said, was bound to pay the value thereof, equally to be divided amongst all the children, after the widow’s dower in the slaves was set apart. The complainants then submitted whether, as the testator had declared it to be his meaning and intention that his son should derive *no benefit from anjr interest which might thereafter vest in his children under his will, his said son was not excluded from any distributive share of the residue of the slaves, stocks &c. and whether the whole of this subject should not be distributed among the others. They stated that William Black the son, by his will, gave all his estate to his wife Elizabeth; that there was then no representative of his personal estate; that his widow intermarried with Willis Wilson, who was since dead leaving her surviving. They further stated that Frances T. the younger daughter of the testator, intermarried with John Garland, and died, leaving her husband, who also had since died. William Black junior, they alleged, died indebted to the executors, for purchases at their sales, a sum greatly exceeding any share to which he could possibly have been entitled; and John Garland was also largely indebted on the same account. The bill further set forth, that by virtue of the limitations in the will of William Black senior, the plaintiff Anne D. Hayes, being of the whole blood, became entitled as right heir to the Falls plantation; that some years before the testator’s death, he mortgaged that estate to one Strettel; that the testator had lands in Henry county which he had contracted to sell to Strettel, for the purpose of paying a part of the mortgage debt; that the testator was probably under the impression that the Henry lands were sold, and did not mention them in his will; that the contract of sale, for some reason or other, was not carried into effect, and those lands descended to William Black junior, and passed by devise to his widow, who took possession of them ; and that after the testator’s death, the representatives of Strettel obtained a decree charging the whole of the mortgaged debt on the Falls plantation, and directing a sale of the same, in consequence whereof the plaintiff Anne Dent Hayes and her husband were obliged to sell the said estate to raise the money due to Strettel. And *the bill insisted that the testator’s personal estate, and the lands descending to his heir, should have been subjected to this debt, in ease of the Falls plantation, and that the personal estate was still chargeable to the plaintiff Anne D. Hayes on account thereof, in preference to the claims of distributees; and concluded by-making defendants thereto, the said Elizabeth Wilson, the representative of William Black junior, whenever one may be appointed, William D. Wren sergeant of the city of Kichmond and committee of the estate of Frances T. Garland, and Josiah B. Abbott administrator de bonis non of William Black senior deceased.
    At August rules 1824, answers were filed by the defendant Wren as administrator of Frances T. Garland, and by the defendant Abbott as administrator de bonis non of William Black senior, and the cause was set for hearing as to those defendants. At October rules 1824, the defendant Elizabeth Wilson filed her answer, and the cause was set for hearing as to her.
    In April and May 1825, exceptions were filed on both sides to the reports of the commissioner; and in June 1825 the cause was heard. The court, sustaining some of the exceptions and overruling others, recommitted the report, with the exceptions not decided on, to one of its commissioners, with particular instructions.
    At January rules 1826, the cause abated as to the defendant Martha A. Goode by her death, and-a subpoena to revive was awarded against Brockenbrough S. ’Morrison, as her executor, and also as administrator de bonis non with the will annexed of Francis Goode.
    On the 5th of September 1827, a report was returned by commissioner Barton, to which the defendants filed exceptions; and on the 13th of October 1827, the cause was again heard. The court declared its opinion to be, that the testator William Black senior, in the events which happened, died intestate as to the slaves devised in trust to John Blair and Peter Lyons, and that the same, 'xbeing then real estate, descended to his son and heir William Black junior; and that the executors of the said William Black senior were not accountable to the plaintiffs for the said slaves. It adopted a statement of the commissioner, in which the slaves áre not charged to the executors; and declaring it to be unnecessary, in this view of the case, to consider the other exceptions of the defendants, decreed that the bill of the plaintiffs be dismissed, and allowed the defendants their costs.
    From this decree the plaintiffs appealed to this court.
    The cause was argued here by Stanard and Lyons for the appellants, and Robertson and Johnson for the appellees,
    and various questions were discussed. 1. Whether the plaintiffs were not barred by the lapse of time previous to the institution by their suit, and their remissness in the prosecution of it when instituted? 2. Whether, under the first clause of the will, William Black the grandson took a vested estate in the land thereby devised, or merely a contingent interest dependent on the event of his attaining the age of 21? and if he took a vested estate, what was the kind and quantity of it? 3. Whether, in the event which actually happened, of the grandson’s death under age and without having issue, the testator was intestate as to the slaves and personally designed to be disposed of by the seventh clause of the will? 4. Whether the executors and their sureties were responsible to the plaintiffs for the proceeds of the slaves mentioned in the seventh clause of the will, slaves being, at the time of the ' testator’s death, descendible as real estate to the heir at law? 5. Whether the devisee of the land mortgaged by the testator was entitled to have the slaves applied by the executors in redemption of the mortgage?
    
      
      Equity Practice — Laches.— On this question, the principal case is cited in foot-note to Atkinson v. Robinson, 9 Leigh 393; foot-note to Harrison v. Gibson, 23 Gratt. 212 ; Doggett v. Helm, 17 Gratt. 96, and footnote: Caruthers v. Trustees of Lexington, 12 Leigh 618; Page v. Booth, 1 Rob. 166: Crawford v. Patterson, 11 Gratt. 374; Poster v. Rison, 17 Gratt. 348; Stamper v. Garnett, 31 Gratt. 564; Green v. Thompson, 84 Va. 396, 5 S. E. Rep. 507; Dismal Swamp Land Co. v. Macauley, 85 Va. 20, 6 S. E. Rep. 697. See monographic note on “Laches” appended to Peers v. Barnett, 12 Gratt. 410.
    
   BROCKENBROUGH, J.

William Black the elder died in 1782, having previously made his will. On the construction *of the first and seventh clauses of that will it depends whether the plaintiffs had at any time a right to the relief which is asked by the original bill.

The first question discussed at the bar is the proper construction of the first clause, on which it is supposed the seventh is dependant. The testator, as before stated, died in 1782; his grandson William the principal devisee died in October 1783, an infant of only two or three j’ears of age, and his son William also died in October 1784, without leaving any son or daughter, and without having had any other child than the said William. The devise of the land to his second and third sons, and to his daughters, was wholly inoperative, there having been no such persons in existence. The only question under the first clause is, did the grandson William even take the land devised by it? The legal estate was never vested in him. The land was devised in fee to Blair and Lyons, but the same clause declares the trusts for which they are to take and hold it. Those trusts are that they or their heirs, or the survivors of them, shall convey the land in fee to the grandson William on his attaining the age of 21 years, and that in case of his death before that age, without having issue, then (after the aforesaid intermediate inoperative devises) the said trustees shall hold it in trust for the right heirs of his son William in fee simple. Was William the grandson ever vested with an equitable estate in the land?

I am very strong^ inclined to the opinion that such an estate in remainder did vest in William the grandson, at the moment of the death of the testator, subject however to its being divested in favour of the devisees over, on the said grandson’s dying before the age of 21 without issue. In Boraston’s case, 3 Co. 19, the devise was “to Thomas Ambrey and A. his wife for eight years next after my decease; after that term, to remain to my executors until such time as Hugh Boraston shall accomplish his full age of 21 years, and the mesne profits to *be employed by my executors towards the performance of my will; and when the said Hugh shall come to his age of 21 years, then I will he shall enjoy the land to him and his heirs forever.” Hugh Boraston died at nine years of age. It was resolved that these adverbs of 'time, when and then, did not make any thing necessary to precede the settling of the remainder, and that they expressed the time when the remainder to Hugh should take effect in possession, and not when it should become vested. Accordingly it was adjudged that the heir of Hugh should hold the land (into which he ha<l entered at the time when Hugh would have attained his age) against the heir of the testator.

A similar decision was made in Doe e. d. Hayward v. Whitby, 1 Burr. 228. The testator had devised lands to H. and B. and the survivor in fee, in trust to lay out the profits in support of his nephews Thomas and John Hayward during minority, and when and as soon as they should respectively attain their ages of 21, then to the use of the said Thomas and John and their heirs, equally. The nephew Thomas died under age and without issue; and in a controversy between the lieir of the testator, and John who was the heir of his brother Thomas, the court decided that this was an immediate gift to the two nephews, with a trust to be executed for their benefit during their minority; and that Thomas’s arriving of the age of 21 was not a precedent condition to the vesting of the estate in him. In this case lord Mansfield made these striking remarks — “Here, upon the reason of the thing the infant is the object of the testator’s bounty, and the testator does not mean to deprive him of it in any event. Now suppose that this object of the testator’s bounty marries and dies before his age of 21, leaving children; could the testator intend in such an event to disinherit him? Certainly he could not. A.nd as to the testator’s heir at law, he is only to take what the testator has not devised away from him.”

*The case of Hunt v. Moore, 14 East 601, was one of an immediate devise, in which it was decided that a devise to A. in fee when he attains the age of 21 years, and if he dies before he attains the age of 21 years, then over, does not make the devisee’s attaining 21 a condition precedent to the vesting an interest in him, but it is a condition subsequent, on which the estate is to be divested: and the court said it makes no difference whether the devise be of a remainder, or an immediate estate. See Fearne 294, where the author lays down the above doctrine, and refers to the above cases and that of Mansfield v. Dugard, 1 Eq. Ca. Abr. 195. See also Fearne 547-8.

In the case before us, there is a clear implication that if the grandson should die within age leaving issue, that issue shall have the estate; for after providing that the trustees shall convey to the grandson on his attaining 21, it goes on to declare that “in case of his death before that age without having issue,” then devise over; by which it is necessarily inferrible that if he leaves issue within age, that issue shall take. I do not see how such issue can be provided for in the way intended, unless we adjudge that the equitable estate in remainder is to vest immediately in the grandson. If it vests in him, then the issue takes by inheritance, but if it does not so vest, then the issue can only take by purchase, if at all. Thus we see that the very case which lord Mansfield put in Hayward v. Whitby might have occurred here.

The counsel for the appellee, however, drew a distinction between executed and executory trusts, of which latter this is said to be one. It is true that something remains to be done to complete the title of the devisee grandson, but that something is to convey the legal title. The distinc-” tion between the two kinds of trusts, I apprehend, regards not the time when the legal estate is to be conveyed to the cestui que trust, but the quantum of interest which is to be conveyed. Thus (to take one example *out of many) in lord Glenorchy v. Boswell, Co. Temp. Talb. 3, the devise was to trusteesjin fee, in trust that if Arabella lived to marry a protestant &c. then the trustees were to convey to her for life without impeachment of waste, remainder to the husband for life, remainder to the issue of her body &c. and the question was whether the cestui que trust took an estate for life only, or an estate tail. Lord Talbot took the distinction between trusts executed, or immediate devises, and trusts executory. In the former, he said, the testator supposes no other conveyance will be made, but in the latter he leaves somewhat to be done, the trusts are to be executed is a more careful and more accurate manner. Whilst he admits that if it had been a trust executed, the devisee would have had an estate tail, yet as it was a trust to be executed, he decreed that she should have an estate for life only, with remainder &c. No question arose whether an equitable estate devised to her (whatever might be its quantity) vested immediately in her, or whether it did not vest till her intermarriage with a protestant. In our case that question does arise, and whilst the legal estate passed to Blair and Lyons the trustees, I see no reason why the equitable estate should not pass by the devise to the grandson, no action on the part of the trustees being necessary to complete that equitable estate.

And as to the time when the conveyance was to be made to the grandson, we may easily imagine a case in which a court of equity would have required the trustees to execute that trust before his coming of age. One of the trusts declared by this same first clause is, that the trustees would permit the widow to occupy a moiety of the Tails plantation, and receive the profits to her own use during life or widowhood. Suppose this life estate to terminate whilst the grandson was within age; why should not the trustees convey to him immediately? The profits of that moiety would then be held in trust *for him, and I can see no ground on which they could withhold from him the possession of the land itself.

If I am right in this matter, it seems to follow that the equitable estate in the land, which was vested in him, devolved on the devisees over, on his death in 1783.

Now let us turn to the seventh clause of the will, and ascertain its operation, first on the slave property. The slaves were devised by that clause to the grandchild or children who should take the land, and as that was William Black the before mentioned grandson, the question is, who inherited them from him at the time of his death? By the act of 1705, 3 Hen. stat. at large 333, slaves were declared to be real estate sub modo, and descended unto the heirs and widows of persons departing this life, according to the manner and custom of lands of inheritance held in fee simple; but they were liable to the payment of debts, and might be taken in execution as chattels or personal estate. Although they descended to the heir, yet all of them except the widow’s dower were to be inventoried and appraised, and the value thereof divided equally amongst all of the children, and the younger children might maintain an action on the case (afterwards exhibit a bill in chancery) against the heir.

Who was the heir of the infant William Black? Not his father, for lands could not then lineally ascend. His father had two sisters, Mrs. Hardiman (afterwards Mrs. Hayes, one of the plaintiffs) of the whole blood, and Trances T. Black (who after-wards intermarried with Garland) of the half blood. Mrs. Garland was of course of the half blood to the infant William Black the grandson, and could not inherit from him. Mrs. Hardiman was therefore his sole heir. She had a right to the slaves, unless they were necessary for the payment of debts. The executors took possession of them for that purpose. If they were not necessary to pay the debts *of the testator, she might have sued for them immediately after the death of the infant William Black. At that time it does not appear she laboured under any disability ; she has not so stated it, and it cannot be presumed. In 1782 it appears that she was an adult, for she then executed her bond to the executors for purchases at the sale; and she was a feme sole, for she did not marry Hayes till some considerable time after her father’s death.

As to the bequest of the stocks of cattle, horses &c. under the said seventh clause, to the said William the grandson, they devolved not on his heir as such, but on his next of kin by operation of the act of 1748, 5 Hen. stat. at large p. 444. No claim has been set up to any part of that distributable estate, except by Mrs. Hayes and the widow of the testator William Black. Tor a distribution of such personal estate, the next of kin might have sued the executors in a reasonable time after the death of William Black the grandson.

And here arises the most important question in this cause, namely, whether there has not been such laches on the part of Mrs. Hayes and the other plaintiffs in the cause as will operate an equitable bar, from the great lapse of time, to their recovery in the present case. This suit was instituted in 1809, a period of 26 years after the death of the grandson. If we are to pay due respect to the decision of Carr v. Chapman, 5 Heigh 164, I am of opinion that under all the circumstances of this case, we must hold the plaintiffs to be barred by time and their own neglect. I will not, however, dwell on this subject, but content myself with referring to the observations of our brother Carr on this point of the case, in which I entirely concur.

I will further remark, that in this view of the case the laborious discussion at the bar, and our own remarks on the construction of the first clause of the will, have turned out to be more a matter of curiosity than *of use. For admitting that no equitable estate vested in William the grandson, the testator must have died intestate as to the slaves and personalty. In this aspect, the slaves descended upon William Black the son, who, as heir of his father, might have sued for them before his death in 1784; and, the younger children of the testator, namely, Mrs. Hardiman and Frances T. Black, might have con-vented the heir and the executors before the court, for the purpose of recovering their share of the appraised value of the said slaves, at the same early period. So, too, the son and the two daughters might at the same time have sued the executors for a distribution of the chattels contained in the seventh clause, and for an account of their administration. But this claim has not been set up until the filing of the amended bill in 1824, more than forty years after the suit might have been brought. The same remark may be made as to the stale claim, never brought forward till 1824, to have the land relieved from the mortgage debt, for the purpose of reimbursing Mrs. Hayes the amount paid under the decree of foreclosure.

On the whole, I am of opinion that the decree dismissing the bill ought to be affirmed.

CAER, J.

I am of opinion that the decree of the chancellor dismissing the plaintiffs’ bill should be affirmed. My reasons for this opinion I will assign as briefly as I can. William Black died in the early part of the year 1782. He left a widow and three children, a son William Black, and two daughters Mrs. Hayes and Mrs. Garland, and a grandson William Black, the son of William. He died possessed of a large property real and personal. He left a will, appointing many executors, of whom only two Robert Goode and Turner Southall qualified ; Goode in April and Southall in June 1782. In the course of the same year the executors had large sales of the personal estate and slaves; and *in 1783 and 1784 more slaves were sold. In 1783 William Black the grandson, the chief object of the testator’s bounty, died, a child of two years old. In 1784 died his father William Black, the heir at law of the testator, but to whom it was the evident intention of the will to give nothing, while it. provided for the comfortable support of himself and family. Soon after the qualification of the executors, Mrs. Black the widow renounced the will, and filed her bill for the assignment of dower in the slaves, and her share of the other personal estate, alleging that the executors had refused to assign her dower in the slaves and other personalty, on the ground that the debts of the estate would absorb the whole. The executors in answer admit the widow’s title, and refer to the inventory of record, which shews the appraised value of the property to be .£6749. 10. but the3' say that debts have come to their knowledge amounting to £6000. nearly, and therefore they have felt unsafe in assigning slaves &c. without receiving the indemnity of a decree of the court. They aver that there will not be assets for paying the debts, without the sale of a number of the slaves. This was in September 1782, before any of the slaves were sold. And the court at the same date make the order for assignment; but subject the widow to give bond and security in £4000. to indemnify the executors against the claims of the creditors. Southall, from the time of his qualification in 1782, to his death in 1792, was the acting executor; Goode doing almost nothing after 1782. So'on after Southall’s death, his executor in February 1793, under an order of court, settled with commissioners the account of his executorship on Black’s estate; and he falling in debt £35. IS. S%. his executor paid that sum soon after to the surviving executor Goode. About the same time large claims both at law and in equity were brought against the estate, and recoveries had for heavy sums, amounting (it would seem) to upwards of 14,000 ^dollars. In the year 1793 too, a bill was filed against Hayes and wife, to foreclose a mortgage which the testator had given on the Falls plantation, and which place, after the death of William Black the grandson and William Black the son, had come to the possession of Mrs. Hayes as heir of her brother. This bill states that the executors of Black (as the plaintiff is informed) have no assets to pay the debt; and this statement, if not admitted by the answers, is certainly not denied, nor is any call made for the personal estate to be brought in ease of the land, though the defendants seem to have struggled hard on other grounds to save the land; but in vain; for a decree passed to foreclose, and the land was sold, not by an officer of court, but by the parties themselves, to satisfy the decree. The decree of foreclosure passed in 1797. In 1808 (I believe) Robert Goode the surviving executor of W. Black died. In 1809 the bill which forms the first in the series to be found in this record, was filed by Anne D. Hayes the daughter, and Claiborne and wife (which last had been the widow of William Black the elder) against Richard Goode and Francis Goode, administrators •with the will annexed of Robert Goode deceased, who was surviving executor of William Black the elder deceased; Samuel Goode a surety for the said Robert Goode as executor of the said William Black; Peyton Southall and John Daingerfield executors of James Southall deceased, a co-executor with Stephen Southall (whom he survived) of Turner Southall deceased, who was an executor of the said William Black deceased; and George Markham and Mary Markham executor and executrix of Bernard Markham deceased, and Thomas Harris executor of the said Brancis Goode deceased, which said Bernard Markham and Brancis Goode were sureties for the said Turner Southall deceased, as executor as aforesaid. This bill is filed twenty-seven years after the death of the testator, and .seventeen after the death of the most active ^executor, and sixteen after the settlement of his accounts, — after the death too of the surviving executor,— against eight persons, some of them three removes off, and not one of them concerned in the slightest degree in the transactions they are called on to settle; transactions the most complicated, multifarious and entangled, that could grow out of a large estate, apparently involved to the full extent of its value. What chance, I ask, is there of arriving at justice in such a case? Would it not have been better to send these parties out of court at once, than to keep them, as they have been already, twenty-six years in court, and then decide at hazard, or (what is more likely) send them back to continue the race? It may be thought, however, that I have not represented the thing with exact fairness, in saying that the suit was not commenced till 1809, as the plaintiffs in their bill refer to a former bill filed by them, which is found in the record. I certainly did not mean to pass this matter by. The bill was filed in December 1797, by Hayes and wife and Claiborne and wife, nearly in the words of the subsequent bill, calling on Robert Goode the executor, and the representative of Southall, for a settlement of the executor-ship of W. Black. They answered promptly, Southall’s executor relying on the settlement which he had made, and Goode stating that Southall had settled' — ■ stating- also the complicated nature of the business, but that he was willing to settle. These answers were filed early in 1798. In September 1798 an order for account was taken, and here the matter was suffered to sleep for eight years. In October 1806 the suit is entered abated as to Hayes by his death, and then dismissed for want of prosecution. Mark, there were four parties plaintiffs, and but one of them died; but the suit was abandoned by the rest, and dismissed. Could there be grosser negligence than this? And is an abortion of this sort to be taken into the account of time? Surely not. All this while, *Goode the executor, who had a personal knowledge of the matter, was alive: he had said that he was willing to settle, and this promptness seems to have paralysed the other party. They stop short, abandon the suit: it is dismissed in 1806. Goode then is fully justified in supposing the pursuit relinquished. He dies in 1808, and the very next year it is renewed; as if they had only waited till all the actors in the scene had left the stage. In my mind they cannot claim the slightest advantage from this impotent and derelict proceeding. Their suit was never commenced to any purpose till 1809; for this was not a revival of the old suit, but a new and original bill. I repeat then, that twenty-seven years were suffered to pass away, and every agent in the administration to die, before the bill calling for a settlement was filed. And this under circumstances strongly calculated to awaken the attention and excite the vigilance of all interested in the estate. Such laches and neglect do, in my opinion, according to the settled rules of equity, close its doors against a suitor. “Nothing,” says lord Camden, “can call this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive and does nothing.” Bor other cases upon this subject, I refer to Carr v. Chapman, 5 Leigh 164. Another objection arising from length of time, is the number of persons necessary to be made parties, and the consequent expensiveness of taking the account. Lacon v. Briggs, 3 Atk. 105. Any one who will read the heading of this suit, and look upon the folio volume of 444 pages forming this, record, must see at once that it has been very expensive: but perhaps a more striking view of this may be given by turning to page 23 of the record, where it will be-seen that the chancellor has found it necessary, by a single order, to direct the settlement of fourteen administration accounts. How many more have been ordered in the ^progress of the cause, I have not troubled myself to examine. “It is a very sensible rule” (says the master-of the rolls in Pickering v. Stamford) “that parties shall not, by neglecting to bring forward thfir demands, put others to-a state of inconvenience, subjecting them to insuperable difficulties. Against such a bill undoubtedly the court ought to set its face.” Again. “If from the plaintiff’s lying by, it is impossible for the defendants to render the accounts he calls for, or it will subject them to great inconvenience, he must suffer: or the court will oppose what I think the best ground, public convenience.” But it is not only required that claims should be brought forward in reasonable time, but also that they shall be prosecuted with reasonable diligence. The case of Hercy v. Dinwoody, 2 Ves. jun. 87, is strong to this point. There a bill was. filed by creditors (the most favoured class) for an account; it was filed recently, and answered; it remained in court with but few further proceedings; and thirty-three years after, the executors being dead, the bill was revived against their representatives and devisees. The master of the rolls refused the account and dismissed the bill. It was urged there, that the matter being in suit, and the defendants called on to account, they could not discharge themselves by a payment or settlement in pais, and therefore that this case was not open to the presumption applicable to others. The. master of the rolls admitted this, but said —“Ror the reasons in Deloraine v. Browne, 3 Bro. C. C. 633, independent of the question of satisfaction, but on account of the very neglect, and the mischief and disturbance that may arise to families, though the presumption of satisfaction is not so strong, yet the laches and neglect may be such as to make it a matter of public policy that the part}1- guilty of it shall abide by the consequences.” Twenty-seven years elapsed before the plaintiffs moved in this case: twenty-six have since passed while it has lingered on the docket. *Could this delay have taken place without the grossest negligence in the plaintiffs? Impossible. But ex pede Herculem; let us look at the proceeding as to one of the defendants Samuel Goode one of the sureties of Robert Goode. He is made a defendant to the bill in 1809: his answer is sworn to in 1817: and from this being done in the county of Mecklenburg, we may conclude that the place of his residence. He states (on oath) “that if he was the surety of Robert Goode as one of the executors of William Black the elder, it is a circumstance which had altogether escaped his recollection ; nor was he ever directly or indirectly apprised of his situation as such, until the month of September 1813 — an omission for which he cannot account, and one which he believes has deprived him of the means of substantiating many facts tending to elucidate the transactions of the executors ; and at this distance of time, after a lapse of between 30 and 40 years, he is compelled to rely for the most part upon a general exposition of the case” &c. Here we see that six years were suffered to elapse before the subpoena was served on this defendant; and a surety, thirty-three years after the death of the testator, is for the first time called upon to account for the disbursement of all the assets which came to the hands of the executors, under the penalty of paying whatever amount an industrious and ingenious commissioner can raise up against him, with an arrear-age of interest stretching far beyond the principal. Is this doctrine to be tolerated? If so, what man of common prudence will ever consent to become a surety? This same defendant, although cut off by the lapse of time, and the death of all concerned, from the usual sources of evidence, has yet stated many circumstances tending to strengthen the presumption raised by time, that the executors have honestly disbursed the assets. Some of these I have stated in the early part of this opinion. I will only add one other. It is, the general impression *of the insolvency of the estate, prevailing at a time when every thing was fresh, and access easy to every source of evidence. This is very strongly proved by the conduct of various creditors, among whom may be mentioned Henderson, M’Caul & Co., Turner & Son, Wallis & Bartlett, and Neil Jamieson & Co. who obtained judgments against the executors for large sums of money, which have either been paid and the proof lost (for there is none in the record) or are yet due. If paid, there can be no doubt that they would leave the executors creditors of the estate; but if unpaid, how can we account for the fact that they have long since given up their debts and relinquished the pursuit? Can we imagine that these lynx-eyed creditors would have failed to discover and avail themselves of any misconduct of the executors? If there was any property of the estate accessible, would they not have levied upon it? If the executors had wasted or misapplied the assets, would they not have pursued them for devastavits? They were both men of fortune,'and had given bond and security. I am of opinion then, for these reasons, that the dismission of the bills was right. In these views, I have considered all the bills and amended bills from 1809 to 1824, simply in the light of bills by the distribu-tees of William Black the elder, calling upon the representatives of his executors and others for a settlement of the personal estate of the testator. In 1824, a bill of a different character was filed. It states that the devise to the grandson never vested: that by the will Mrs. Hayes took the Ralls plantation as heir of her brother: that as to the slaves embraced by the seventh clause of the will, the testator died intestate, and submits whether, as to this property William Black the son, though the heir at law, was not excluded by the evident intention of the testator that he should not have any part of his estate. It, for the first time, makes Mrs. Wilson, the wife and devisee of William Black the son, a party; as also the Representative of Mrs. Garland, the daughter of William Black senior by his last wife. The plaintiff Mrs. Hayes also, in this bill, for the first time, brings forward a claim to be reimbursed out of the personal estate for the money she paid on a mortgage of the Ralls plantation, upon the ground that as she took that estate as a devisee, the personal estate of the testator, as well as the lands descended, was subject to be first taken in ease of the land devised. She therefore prays that whatever personal estate may be found unadministered, may be applied first to reimburse her the amount of this mortgage, and if there should be any surplus, that the rights of the parties to it may be settled. To this bill answers were filed by Mrs. Wilson and the representative of Mrs. Garland, submitting the claims of the plaintiffs to the decision of the court. With respect to these claims I will say, first, that the claim to reimbursement for the mortgage debt seems to me wholly unfounded. Indeed the staleness of it alone is enough for its rejection. In 1793, the bill was filed to foreclose this mortgage, and the plaintiff stated that he had been informed the executor had no assets. The answer of Hayes and wife, I think, may be considered as admitting this. Then was the time, if they supposed that there were assets, and these liable to redeem the land, for them to have called the executor to their aid, and gotten a decree for such an application of the assets. But they did no such thing; they suffered a decree of foreclosure, sold the land, and paid the mortgage. And now, thirty years after, they put in this claim. It is clearly inadmissible. Next, as to the slaves embraced in the seventh clause: it is here first suggested that the testator died intestate as to them; and this I think is clearly so; but how this should avail the plaintiffs in a bill against the representatives of William Black senior, and framed as these bills are, I cannot imagine. The bequests of the slaves failing, they descended “as real estate, and *not chattels, to the heir at law, according to the manner and custom of land of inheritance held in fee simple.” These are the words of the act of 1705, 3 Hen. stat. at large, p. 333, which remained in force until 1787. Under this law, these slaves went to William Black the son, subject however to the debts of the testator. The act of 1705 directs that the slaves “shall be inventoried and appraised, and the value thereof shall be equally divided among all the children; and the several proportions according to such valuation and appraisement, shall be paid by the heir (to whom the said slaves shall descend by virtue of this act) unto all and every the other said children.” And the act gives to each child the remedy of an action on the case against the heir, for their several proportions. This remedy is changed by the act of 1727, 4 Hen. stat. at large, p. 227, into a bill in equity against the heir. From these laws it seems to me, that the younger children of a person dying intestate have no claim on the personal representative, for their proportions of the value of the slaves descended. Their claim is given by the law; it is a statutory remedy, and the statute gives it exclusively against the heir and his representatives. On this ground I think the chancellor was right in his decree, in saying that the executors of William Black the elder were not accountable to the plaintiffs for the slaves.

I am for affirming the decree.

CABELL, J.

As to the questions on the construction of the will of William Black the elder, which were so laboriously and ably argued by the counsel on both sides, I do not deem it necessary to give any opinion. For, whatever may have been the rights of the complainants as against the executors of that will, I concur with the judges who have preceded me, in thinking them barred by the great length of time, which was permitted, without any sufficient excuse, to elapse before the institution *of this suit. Those who have so long failed to ask an account of transactions from the actors in those transactions, while the actors themselves were yet living and able to render a just and true account, ought not, on principles of public policy and private justice, to be permitted to exact it now, from those from whom no just and true account can be expected. The principles on which we decided the case of Carr’s adm’r &c. v. Chapman’s legatees, 5 Leigh 164, are applicable to and decisive of this case.

I am of opinion to affirm the decree dismissing the bill.

TUCKER, P.

The first question to which it is necessary to respond in this case, respects the limitation in the will of William Black the elder to his grandson William Black the 3rd; and upon this subject I cannot concur wholly in the views of either party. I do not assent to the proposition of the defendants’ counsel that William Black the son took a life interest, which was enlarged into an estate in fee by the subsequent limitation to his right heirs, according to the rule in Shelley’s case. That rule can have no application, unless the ancestor takes an estate of freehold by the same conveyance which created the limitation to his heirs. But William Black the son took no estate under the will, the great object of which was obviously to exclude him from the inheritance. The testator devised the Falls plantation to trustees, with an express provision that the widow should work the wnole of it; that she should have one half the profits during life or ■widowhood; that she should permit the son to live in the mansion house and be supported from the produce of the estate, and if they could not agree, then he was to be permitted to live separately and to have a support for himself and family, in kind or in money. This was indeed a charge upon the widow in respect to the estate given her for life, but *it was not an estate in the land given to the son. Neither was there any resulting trust for him, arising out of a failure to dispose of the whole beneficiary interest in the estate, or out of the widow’s renunciation of the will. The trusts are fully declared, and cover the whole estate. The whole estate is given to the widow during life or widowhood, subject to the charge already mentioned; and when she renounced, the last clause of the will but one came into operation, whereby the produce of the estate is devoted to the education of the children of the son, and the general benefit of his family, including the wife of the son, if she should survive him. I cannot, out of the will itself or the circumstances 'which have succeeded it, find any thing which will justify us in holding that William Black the son took a freehold estate. If he did not, then the limitation to his right heirs could only operate as an executory devise, and if it was good, Anne Dent Hayes the testator’s daughter and the only sister of the whole blood of William Black the son, took the Falls plantation as his right heir, upon the failure of the limitations to William Black the grandson.

Nor can I think with the counsel for the plaintiffs, that there was in this case either a vested feetail or a vested estate in fee simple in William Black the grandson, defeasi-ble upon his dying without issue before he came to maturity. If there had been no trust created, and the devise had been immediate, there would have been strong reasons for giving one of these interpretations to this will. The cases which have been cited, from Boraston’s case, 3 Rep. 19, to Goodtitle v. Whitby, 1 Burr. 228, and Hunt v. Moore, 14 East 601, would have been very strong authorities for construing the interest of the grandson as a vested estate. .It would have been necessarjq in order to prevent the overthrow of the testator’s intention in the event of the grandson dying under age leaving issue. Unless so construed, the issue could *not take, because the double contingency had not occurred, and those in remainder could not take because there was not a dying without issue. But if, as I take it, this is an executory trust, these difficulties will cease to exist, the necessity for such a construction will disappear, and the impossibility of the interest devised to the grandson being considered as vested will be perfectly obvious.

The distinction between an immediate devise or an executed trust, on the one hand, and an executory trust on the other, is familiar to the profession and perfectly well established by the cases. Mr. Fearne has collected them with much care (from page 114, to 148,) and has shewn that notwithstanding the remarks of lord Hard-wicke in Bagshaw v. Spencer, 2 Atk. 581, the distinction has been recognized and established beyond controversy; and strongly as he was inclined to sustain the rule in Shelley’s case, he does not hesitate to admit that even that rule, unbending as it is, does not govern the case of executory trusts, but that they are always moulded according to the intention of the party by whom the trust has been created. In executed trusts however, and in immediate devises, the case is different, for in them the rule in Shelley’s case is imperative, if the requisitions of that rule are to be found in them; and as nothing is left to be done, the limitations executing themselves, there is no room left for a court of chancery to exercise its power in moulding them according to the supposed will of the testator.

In this indeed consists the distinction between executed and executory trusts. In the former, the estate passes without any act for its transfer being done by the trustee. In the latter, “the completion of the trust is referred to a conveyance or settlement directed to be made by the testator, in contradistinction to those trusts in which no such executory medium is referred to.” Fearne 137. According to this distinction, the devise *in this case clearly creates an executory trust. It is not an immediate devise to the grandson, nor a trust declared in his favour, without more saying. But it is a devise to trustees in fee, upon trust to convey to the grandson and his heirs, upon his arriving at maturity. It is a case in which “the completion of the trust is referred to a conveyance to be made by the trustees,” and that too upon the happening of an event which was altogether contingent. It was therefore, I conceive, an executory trust.

Considering it in this light, we are next to recollect that it is susceptible of being modelled according to the real intention and views of the testator, and that the trustees will be required by a court of equity to convey in accordance with that intention. What then is the true meaning of the will? First, it is clear that if William Black the 3rd had attained the age of 21, he would have been entitled to a conveyance of the fee. Secondly, if he died under age and without issue, the conveyance was to be made according to the limitations over. Thirdly, if he died under age leaving issue, then the trust ought to be executed by a conveyance to such issue (i. e. the heir at law) in fee. For as the limitation over is only in the event of his dying without issue, it is obvious that the persons in remainder could not take if he left issue; and it is equally clear that as the testator directed the fee to be conveyed to the grandson if he attained the age of 21, and as he gives the estate over only in case of failure 'of issue, he must have designed to provide for the issue. Taking the clause together and expounding one part by the other, it is equivalent to a direction that the trustees, should convey to the grandson in fee, if he attained 21; “but if he died before 21, leaving issue, they should convey to such issue in fee.” Moulded thus, the testator’s, intention is subserved, and every difficulty of construction is removed. The interpolation of these latter words is not: only in strict consonance *with the clear intent, but it is also demanded by it, and is, I think, much less strong than the interpolation in the case of Selden. v. King, 2 Call 72.

We next come to consider whether, by this will, the grandson took a vested estate-anteriour to his attaining the age of 21 years. Clearly not, I think. Considering this as the case of an executory trust, it seems conclusive of the question; for'as. has been well observed by an elementary-writer, the notion of an executory interest is irreconcileable with the idea of a vested interest. 1 Prest. on Est. 64. A vested, interest is where there is an immediate fixed right of present or future enjoyment. Fearne 2. Whereas an executory interest, ex vi termini, implies that something further is to be done for the completion of the trust, and the vesting an estate in the party. “By a vested estate, in relation to-interests of a freehold quality, is to be understood an interest clothed, as to legal estates, with a legal seisin, or, as to equitable estates, with an equitable seisin, which enables the person to whom the interest is limited, to exercise the right of' present or future enjoyment immediately, in point of estate. A vested estate is an interest clothed with a present legal' and existing right of alienation.” 1 Prest. on Est. 65. On the other hand an exe-cutory trust implies that something further is to be done before the party is “invested” with the estate; and until that is done, so far from his having a present legal and existing right of alienation, he. has nothing to alienate. Thus in the present case, the grandson took no immediate estate by devise, postponed only as to the time of enjoyment, but the property was devised to. trustees, to be by them conveyed to him upon the contingency of his attaining full age. He had then, and could have, no-conveyance until the contingency happened. Until that happened, they were not bound to convey and could not lawfully convey to-him, even if they wished to pass a title to him. His interest then was only an equitable ^contingent interest, not a vested estate. If it was a vested legal estate, it must have been a vested fee simple, and the. trust would then have become executed, instead of being execu-tory. The conveyance to him after he-attained his full age would have been unnecessary and inoperative, upon this supposition that an estate in fee vested in him immediately on the testator’s death. It maj' be said, indeed, that the estate vested in him was not the legal but the equitable estate, and that then the incongruity just insisted on is avoided. I do not think so. He had indeed a contingent equitable interest, but not an equitable estate. He had no equitable seisin of an estate of inheritance. For if he had such an equitable estate in fee, he might of consequence have at any time demanded of the trustees a conveyance of the legal title to him, even before he attained the age of 21. But this would have been in direct conflict with the provisions of the will, and therefore could not be; whence I conclude that as he had not a right to demand a conveyance, he could not have a vested equitable estate in fee.

If I am right in the view which I have taken of the limitations in this will, it is obvious that the lands never vested in the grandson, and of course the slaves mentioned in the seventh clause did not pass to him, since the trust of them was only declared in favour of such son of William Black the 2nd as should take the land. If so, William Black the elder, in the event that has happened, died intestate as to these slaves, and William Black the son became entitled to them, subject to the charge of paying due proportions to his two sisters, according to the then existing law. And had the executors delivered over these slaves to the son, the complainants could only have looked to his representatives. But as they did not; — as they sold the slaves, and have the proceeds in their own hands, they are liable to the demand of the plaintiii Anne for her portion of them, if ^indeed any thing was left after payment of the testator’s debts. Whether, as the slaves were real estate, the sureties would be irresponsible for the waste of them (according to the case of Jones v. Hobson, 2 Rand. 483), I do not mean to decide.

Upon this ground therefore, and upon her title to distribution, Mrs. Hayes had an undoubted right to come into a court of equity for an account. But it is contended that this right has been lost by her laches. Bet us consider this matter, as it relates to the two executors, Goode and Southall, distinctly.

First as to Goode: I think there has been no such negligence as will bar the rights of the plaintiffs. Anteriour to May 1798, Hayes and wife and Claiborne and wife filed their bill against Goode and Turner Southall’s administrator, calling for an account. Goode, who was then living, answered, and submitted to account. At this time the charge of laches was not made, nor could it have been sustained. The lapse of time had not been such as to bar the assertion of the plaintiffs’ pretensions, according to the decisions of this court. The suit remained on the docket till 1806, and then abating by Hayes’s death, was dismissed for want of prosecution on the part of his widow. In 1809, however, it was revived by her, and she states in her bill that she was ignorant of the fact of dismission. I think it would be -hard measure to bar the rights of a feme covert under such circumstances, she having renewed the assertion of them in about two years and an half after the abatement of her husband’s suit by his death. From, this time the suit has been regularly prosecuted, and though the great lapse of time since its commencement may be a motive for less rigour in scrutinizing the accounts, and may furnish some apology for defect of evidence in support of executorial transactions, yet it can have no influence upon the question of the right to sustain the-present bil.. That right, as to Goode’s-representatives, I think unquestionable.

*It is not less so as to Southall. His executorial transactions were settled indeed after his death, in 1792, before the county court. The suit to enforce a settlement in equity was commenced only six years after, and though it was abated by Hayes’s death in 1806, it was renewed by his widow in 1809. With the strongest disposition to resist the assertion of stale demands, and particularly the ripping up of executorial transactions after a great lapse of time, I cannot think that this case can properly be considered as falling under that censure. A great number of years have indeed elapsed since the death of the testator, but thirty-eight of the years that have rolled away have found this matter depending in the courts. They must be excluded, therefore, from our computation, and then the case stands thus: that the distributee has instituted her suit within fifteen years from the testator’s death, against one executor who has never settled his accounts before the court of probate, and who, upon being sued, assented to account; and against the representatives of another, who had never settled his accounts in his lifetime, and whose accounts were only settled by his administrator within six years anteriour to the filing of the bill. These circumstances do not constitute such laches, in my judgment, as tc exclude the plaintiff Anne from aright to call for her distributable portion of her father’s estate from his executors, who have never fully and fairly settled it up.

With respect, however, to the claim to relieve the Ralls plantation from the mortgage debt, by refunding what has been paid by the devisee of that estate, I am clearly of opinion that the pretension is too stale to be now enforced. The claim is for the first time asserted by the amended bill of 1824, about twenty-six years after the discharge of the mortgage by Mrs. Hayes and her husband. This is too late.

From the preceding succinct view of this case, it seems to me that the bill of the complainants should *not have been dismissed, but that the court of chancery should have proceeded in the cause to a final decree, according to the principles of the court. Upon looking into the accounts, I think it would be hazardous in us to attempt to settle the amount which is due. All that can properly be done by this court is to intimate its opinion upon some points which are presented by the accounts and the evidence taken in the cause. In the discharge of this duty, I will observe that in deciding upon the responsibility of the executors for losses by alleged insolvency, it is reasonable, after so great a lapse of time, that the ontis probandi should be thrown upon the party affirming the solvency, since the presumption is that the executors would not have failed to collect the debts of the estate in any case in which the party was able to make payment: — That in those cases where the executors are responsible, they ought not to be charged with interest upon the lost debts: — That as on the supposed outstanding demands against the estate, which have probably been abandoned as hopeless and are barred by the statute of limitations, the executors are not entitled to retain the assets on account of them, but are only entitled to refunding bonds, indemnifying them against these and all other claims which .may hereafter be successfully asserted:' — That the settlement of Turner Southall’s administrator is only to be taken as prima facie evidence of the matters it sets forth, but that it is not evidence of any matters not appearing upon it, and is moreover liable to be rebutted by other testimony: — And that the executors were not, under the will of William Black the elder, authorized to apply the general assets to the support and maintenance of his son and his son’s family, to the detriment of the other distribu-tees. With these instructions, I am of opinion to reverse the decree and send the cause back for further proceedings.

Decree affirmed.  