
    *Winston’s Ex’or et als. v. Street’s Ex’or.
    January Term, 1856,
    Richmond.
    Absent, Truno, J., and Clopton, J. — (The latter decided the case below.)
    1.Lapse of Time — When It Protects Delinquents.— Lapse of time only.does not protect delinquents. It is permitted by courts of equity to do so, not where the demand is fixed and certain, but where the accounts are unsettled, and the amount sought to be recovered is uncertain, or when, from the death of parties, all knowledge of the true state of the accounts has passed into oblivion, and when any attempt to settle and adjust the accounts might, and probably would, result in great injustice to the defendant.
    2. Same — Presumption of Payment by Executor to-Legatee Arising Therefrom Rebutted. — A suit pending against the executor for more than his testator’s estate is worth, within twenty years before suit brought against him by legatees or distribu-tees for their share of the estate, would rebut any presumption of payment, arising from lapse of time, against their demand — for until the debts, are paid they have no claim to the estate.
    3. Fiduciaries — Statute of Limitations — Application.— The act of limitations of 8th March, 1826, (Suppl. toR. 0. 1819, p. 260, ch. 200,) applies not to suits against fiduciaries for the balance of estates in their hands, but to suits on their official bonds against them and their securities.
    In July, 1847, William O. Winston and William T. H. Pollard, executors of Alice B. Winston, dec’d, William T. H. Pollard, executor of Harriet W. Winston, dec’d, William W. Jones, executor of Martha L. Jones, dec’d, and Catherine R. Shore, filed their bill in the Circuit Court of Hanover, setting forth, that William O. Winston, father of said Harriet, Alice, Martha and Catherine, died in 1817, leaving a will, by which he devised the residuum of his estate to his said four daughters; that after his will was admitted to probate, no executor having been named therein, his estate was committed to Parke Street, high sheriff of Hanover county; that Street took possession of the estate, and *that by a settlement of his administration account, rendered under an order of Hanover County Court, there was a residuum in his hands, on the 1st day of January, 1821, of $>270 71, with interest on several parts thereof from several dates till paid, which balance the county court ordered to be distributed among the creditors; that Street had since that time died in 1841, and that by his last will he had made Charles P. Goodall his - executor; that he left a large estate, and that neither he in his lifetime, nor his executor since his death, had paid-any part of the said balance to those entitled thereto; and that, besides that balance, there were several sums of monej' due the plaintiffs from said Street, on account of hires received by him for a negro man named Reuben, belonging to their testator’s estate.
    Goodall, as executor of Street, answered this bill in April, 1848, admitting that such a balance had been ascertained against his intestate as is stated in the bill; and in respect to the hires of Reuben says, that this claim is so broadly and generally stated, both as to time and circumstances, that he can make no reply to it, but calls on the plaintiffs to say in what years said hires accrued. He does not deny that any such hires accrued, or allege that they or the said balance have ever been paid in whole or in part by his testator, but pleads, as to both claims, the statute of limitations upon actions on the bonds of fiduciaries, passed March 8th, 1826.
    
      It appeared, from a decree filed in the cause, that in December, 1828, there was a suit pending' in the Circuit Court of the United States at Richmond, in the name of one George Bayne, against said Street, as administrator of Winston, and the said plaintiffs and others, his children, for a large sum of money. This was all that appeared in the case.
    On the hearing of the case, in 1849, the court below, being of opinion that the claim was too stale to be enforced in a court of equity, dismissed the bill with costs.
    From this decree the plaintiffs appealed to this court.
    *Lyons, for appellants:
    The decree is erroneous—
    1. Because the act of limitations relied on (Suppl. to R. C. of 1819, p. 260, ch. 200,) does not apply to such a case. It is specific in its application to suit upon the bond, and does not apply to or affect the remedy against a fiduciary, who is responsible as a fiduciary by his own act or conduct, whether he executed a bond or not, and all times liable therefor. The liability of an executor or administrator does not rest upon his bond, but upon his undertaking as executor or administrator. And the bond cannot be put in suit until there has been a judgment against the executor or administrator and a return of nulla bona. 1 Rev. Code, chap. 104. The act was intended, therefore, not to limit the remedy against the delinquent trustee, but against his surety, whose liability rests wholly upon the bond.
    2. Cases of trust are not, in equity, within the operation of the act of limitations. Hunter’s ex’ors v. Spotswood, 1 Wash. 14S; Redwood v. Riddick et ux., 4 Munf. 222.
    3. Lapse of time is never permitted to bar a clear and well defined demand for a sum certain, against a fiduciary. It only protects alleged delinquents where the transaction is very old, the accounts unsettled, and the amount sought to be recovered uncertain. None of these qualities are found in this case. The account,, was settled and made a matter of record, and the sum demanded precisely ascertained by the account settled. Burwetl’s ex’rs v. Anderson’s adm’r, 3 Leigh, 348; Atkinson v. Robinson, 9 Leigh, 393.
    A probable and sufficient excuse for the delay will be found, moreover, in the facts, that the cestui que trusts were females, and all married women, and the pendency of the litigation in the federal court. If the money due, or any part of it, had ever been paid, the administrator who recorded his indebtedness would certainly have had evidence of his payments.
    *Morson, for appellee:
    This suit, commenced in 1847, was based on a commissioner’s report, made in 1821, shewing that Parke Street, as Winston’s executor, was then in arrears a certain sum of money. Street lived for twenty years after the commissioner’s report, without any suit having been brought against him by the plaintiffs. The bill was filed six years after Street’s death, and twenty-six years after the confirmation of the report. Street’s executor puts his defence on the statute of limitations, and though lapse of time is not specially pleaded, it is necessarily insisted on under the plea of the statute.
    In such a case presumption of payment ought to apply, if in any. Crawford’s ex’or v. Patters on, 11 Grat. 364; Evans et als. v. Spurgin et ais., Idem, 615; Hillis v. Hamilton, 10 Grat. 300; Carr’s adm’or v. Chapman’s legatees, 5 Leigh, 164; Hayes et als. v. Goode et als., 7 Leigh, 452. These cases shew that presumption of satisfaction will always be made, unless facts are shown which rebut that presumption.
    Lyons, for appellants,
    in reply:
    Lapse of time is not pleaded in the answer, and this is necessary in equity, to make it available as a defence, just as payment must be pleaded at law.
    Again: Neither lapse of time, nor the statute of limitations, if properly pleaded, is available between fiduciaries and beneficiaries in the trust, against a clear and ascertained demand. Lewin on Trusts and Trustees, Law Lib. vol. 24, p. 611; Idem, p. 622; Angelí on Limitations, p. 161, ch. 16, | 1; Adams on Equity, p. 62.
    The cases cited on the other side are none of them cases in which there was a clear demand, as is the case here, but were all cases for the settlement of accounts after great lapse of time. The claim at bar, being a clear, ascertained and settled demand, fixed by a commissioner’s report, there is no room for the presumption of payment, on which the doctrine of lapse of time depends.
    *But even if the presumption lay against the claim here, there are several circumstances calculated to rebut it, which have been adverted to in the opening argument.
    The case of Toler’s adm’r v. Toler et als., (p. 71 of this volume,) decided by this court at the present term, is a much stronger decision, against the application of lapse of time, than would be required in this case.
    
      
      Lapse of Time. — See monographic note on “Laches” appended to Peers v. Barnett, 12 Gratt. 410.
    
   FIELD, P.,

delivered the opinion of the court as follows:

William O. Winston, by will, after making sundry specific devises and bequests, of real and personal property, to his children, gave the residue of his estate, after payment of his debts, to his four daughters by name. He made no appointment of an executor, and no person applying for administration with the will annexed, it was committed to Parke Street, sheriff of Hanover county. In 1821 Street settled his administration account on the estate, before commissioner Pollard, under an order of the county court. Commissioner Pollard made his report, shewing a balance due to the estate of $270 71, besides interest, in reference to which the commissioner stated that the administrator objected to making distribution of the money, because sundry suits were then pending against him. The county court received the report and ordered it to be recorded; but further ordered, that the administrator should distribute the balance reported against him amongst the creditors of his testator. This order was made on the 28th day of November, 1821.

We find, from an exhibit in the cause, that a suit wás pending in the Circuit Court of the United States at Richmond, in the name of Geo. Bayne, against Parke Street, sheriff administrator of William O. Winston, and the children of Wm. O. Winston, for the recovery of a debt claimed to be due from the testator’s estate, and that three out of seven of the children purchased their peace at the price of $800, and were dismissed *from the cause; but as to the residue of the plaintiff’s claim, the cause was retained for further prosecution against the administrator and the other legal representatives of William O. Winston, deceased. The order in reference to this partial compromise of the suit was entered on the 10th of October, 1828. What was done in the cause thereafter, or when it was determined finally, does not appear. But it is apparent, that if the $800 paid for the shares of three of the children constituted three-sevenths of the debt, and the others were indebted proportionally, it would follow that the balance of the claim, for which the estate was still liable, was $1,066 66%. This being the state of things, there was a very good reason why the residuary legatees should delay the bringing of their suit so long. Their father’s estate was largely indebted; the county court had ordered the administrator to apply the funds in his hands to the payment of the claims of the creditors, and as late as the 10th of October, 1828, we find a suit pending against the administrator and the children for the recovery of a debt not less in amount than $1,866, upon which, after applying the credit of $800, (the compromise money paid by three children,) there was a balance of $1,066 remaining due, and for the recovery of which, of the administrator and other children of,the testator, the cause was retained in court. Under these circumstances, the residuary legatees, without subjecting themselves to the imputation of sleeping upon their rights, were well justified in postponing the bringing of their suit until the debts were all either paid or until their payment could be presumed from lapse of time. Taking the 10th of October, 1828, when we find the suit pending in the Circuit Court of- the United States, as the period of time from which the twenty years is to commence running, (and this date can be assumed only upon the supposition that the further prosecution of that suit was from that date abandoned — a supposition entirely gratuitous, for there is nothing found in the cause to warrant it, either then ^or afterwards) — I say, taking the 10th of Oct’r, 1828, as the time from which the twenty years shall commence running, from after the lapse of which the debts due from William O. Winston’s estate may be presumed to have been paid — this presumption did not arise until the 10th of October, 1848. "Now, if the residuary legatees were entitled to delay the bringing of their suit until the debts were either paid or their. payment could be presumed from lapse of time, they have been over-diligent in bringing their suit, for they brought it in April, 1847, about one year and a half before the expiration of the twenty years.

The administrator filed his answer to the bill. He does not pretend that he paid the balance reported to be due on his administration account to the creditors, or to the legatees of his' testator. Nor does he pretend that the payment to either is to be presumed from lapse of time. He could not, consistently with truth, have contended for any such thing. Por it is evident, from what is said above, that the presumption of payment would not apply to the debt claimed by George Bayne, as to which the twenty years had not run out by one j’ear and a half. Nor could the presumption of payment apply to the claim of the residuary legatees; for they could have no claim until the debts were paid, or presumed to be paid. The defendant made no such defence, but attempted to screen himself under a shelter which the law had erected for the benefit of the sureties in his official bond, but not to protect him from the consequences of his delinquencies. In his answer, in reference to the plaintiffs’ claim, he says as follows: “But it will be seen that the said balance is stated to be due on the 1st day of January, 1821, and the present suit was instituted in 1847, and that any demand therefor against the estate of his testator is barred by the statute of limitations.” The statute of limitations referred to by the defendant was the act of the 8th of March, 1826, (Suppl. to R. C. of 1819, p. 260, ch. 200,) ^limiting suits on the. bonds of fiduciaries, in which their sureties are bound, but does not ■ apply to the liability which an executor, administrator or other fiduciary incurs 'independently of the bond by assuming upon himself the duties and obligations incident to the trust. Such was no doubt the opinion of the court before whom the cause was heard. That court dismissed the bill, not upon the defence of the act of limitations, but because the court was “of opinion that the claim of the plaintiff is too stale now' to be enforced in a court of equity.”

After the lapse of twenty years, a bond debt is presumed to be paid. As to claims against executors and administrators, or other fiduciaries, a demand may become too stale to be enforced in equity. But this must depend, not altogether upon the lapse of time, but upon other circumstances as well as time. It should be allowed to protect delinquents where the transaction is old, the accounts unsettled, amount sought to be recovered uncertain, depending upon the testimony of witnesses who may he dead, upon vouchers lost, or where, from the death of parties, all knowledge of the true state of the accounts has passed into oblivion, and when any effort to settle and adjust the accounts might, and probably would, result in doing great injustice to the defendant. Cases of this sort are discountenanced by courts of equity. The case under consideration is not one of that character. The debt is fixed and certain. Its existence and amount is proved by the record and judgment of a court of competent jurisdiction. If it has ever been paid, the vouchers of payment would be found by the defendant amongst the papers of his .testator, and could be produced. He does not pretend that any such vouchers ever had an existence and are now lost or mislaid; on the contrary, he places his de-fence wholly upon his reference to a statute of limitations which has no application to the case.

In fine, my opinion is, that the plaintiffs’ claim is *barred, neither by lapse of time nor the statute of limitations, and that the plaintiffs have been reasonably diligent in asserting their claim, that the decree dismissing their bill was erroneous, and should be reversed with costs.

THOMPSON, J., and GIRMHR, J., concurred with FIELD, President.

Decree reversed — and decree by this court distributing the balance due among the appellants.  