
    *Hills v. Hamilton, Adm’r & als.
    July Term, 1853,
    Lewisburg.
    Executors and Administrators — Suit for Account of Administration — Laches-—Case at Bar. — A suit for an account of administration is 'brought twenty-six years after the death of the intestate, twenty-one years after the death of the administrator, long after his estate is settled up by his administrator showing that there is no personal assets, and in the absence of the first administrator’s books and papers, against his heir who at his death was an infant two years old. The staleness of the,claim is conclusive against it.
    William Hiílis the elder died in 1808, having first made his will, which was duly admitted to record in the County court of Rockbridge. By his will he gave to his widow Abigail Hillis his house and lot in the town of Bexington, for her life or until William Hillis his son should come of age; and he gave her his personal estate for life, remainder to William Hillis. He gave to his son William the house and lot in Bex-ington upon the death of his mother or upon his coming of age; and he charged it with the payment of three legacies of twenty-five pounds each to his three daughters, the first payable in one, the second in two and the third in three years after his son William Hillis came of age. Mrs. Young, one of the daughters, died about a year after her father, leaving her husband William Young and one child surviving her; William Hillis the younger came of age in 1815, and his mother died in 1820; when he qualified as her administrator. He died in 1825, leaving an infant son about two years old, when Robert Irvine qualified as his administrator: And he settled his administration account, showing that he was in advance to the estate.
    In 1824 Jacob Haughawont and Abigail his wife *who was a daughter of William Hillis the elder, instituted a suit against William Hillis the younger to recover the legacy left her by her father, and her portion of her mother’s estate. This suit was revived against Irvine as the administrator of ■ William Hillis ; and after an issue to ascertain the amount of Mrs. Hillis’ estate, the court in July 1830 made a decree in favor of the plaintiffs for the legacy, and two hundred dollars, 'with interest "from the 1st of September 1821, as the female plaintiff’s proportion of Mrs. Hillis’’ estate. None of the other distribu-tees of Mrs. Hillis were parties to this suit.
    William Young having died without taking administration on the estate of his deceased wife, in 1846 James G. Hamilton qualified as her administrator; and in the same year he and William Seawright and Mary Ann his wife who was the daughter of Mrs. Young, instituted this suit in the Circuit court of Rockbridge, against Robert Hillis the son of William Hillis the younger, and Irvine the administrator, to recover the legacy left by William Hillis the elder to Mrs. Young, and also to recover his distributable interest in Mrs. Hillis’’ estate. Robert Hillis answered the bill, relying upon the lapse of time, the death of all the parties who knew anything on the subject, and the statute of limitations.
    The accounts were referred to a commissioner, who reported that there was due to the female plaintiff, on account of the legacy to her mother, the sum of two hun-dred and . twenty-three dollars and ninety cents, with interest on eighty-three dollars and thirty-three cents a part thereof, from, the 12th of September 1848 until paid; and that there was due to her on account of her distributable share of Mrs. Hillis’ estate, five hundred and twenty-four dollars and thirty-three cents, with like interest on two hundred dollars a part thereof.
    *In April 1848 the court made a decree confirming the report, and decreeing that unless the defendant Robert Hillis should pay to Seawright and wife the sums reported by the commissioner, within six months, commissioners who were appointed for the purpose, should proceed to sell the house and lot in his posses-, sion, which he had derived from his father; it being the same devised to his father by William Hillis the elder. The plaintiffs afterwards released the decree for the legacy. Prom this decree Robert Hillis applied to this court for an appeal, which was allowed.
    A. H. H. Stuart, for the appellant.
    Michie, for the appellees.
    
      
      Executors and Administrators — Suit for Account of Administration — Laches.—For the equitable principle governing- the court in suits that have been brought after a long lapse of time, see the principal case cited in Foster v. Rison, 17 Gratt. 348, and note; Harrison v. Gibson, 23 Gratt. 224, and note, Castleman v. Dorsey, 78 Va. 349.
    
   SAMUE5LS, J.

Separating the subject of this suit from the extraneous matter in which it was involved in the bill and subsequent proceedings, the record discloses the following, case:

On or before the 4th of September 1820, one Abigail Hillis died, leaving a small personal estate, and leaving her children Mary Laughlin, Abigail Hillis, afterwards the wife of Jacob Haughawont, William Hillis, and her grand daughter Mary Ann Seawright, the female appellee, then and now the wife of Wm. Seawright, her next of kin and distributees. William Hillis qualified as the administrator of his mother’s estate: he died in the year 1825, leaving the appellant Robert Hillis, then an infant of tender years, his sole heir and distributee, who took by descent from his father a house and lot in the town of .Lexington. Administration on William Hillis’ estate was committed to Robert Irvine. In the year 1846 suit was brought by Seawright and wife against Robert Hillis the heir, and Robert Irvine the administrator, of William Hillis, for an account of Abigail Hillis’ estate, and for payment of Mary

Ann Seawright’s distributive share therein. *The bill nowhere alleges in terms that the bond given by William Hillis for the administration of Abigail Hillis’ estate, bound his heir; we may suppose however, that it was in the form' prescribed by the act of assembly, which would bind the heir.

Robert Hillis alone answered; he defended himself by objecting the staleness of complainant’s demand; and by alleging that the money claimed by complainants had been paid, relying upon the lapse of time as affording presumptive evidence of such payment.

The Circuit court directed certain accounts to be taken to ascertain the amount of the distributive share sued for, and the amount of William Hillis’ personal estate. These accounts being taken, it appeared that there was no personal estate out of which complainant’s demand could be paid. A decree was rendered for the sale of the house and lot aforesaid, for the purpose of paying that demand: from this decree the appeal before us is taken.

Passing by any other error in the proceedings by which the decree was arrived at, yet it must be reversed for reasons affecting the existence of the demand asserted.

The question ‘ ‘what was the amount of Abigail Hillis’ estate for distribution?” lies at the foundation of this controversy. By the dim lights shed upon this question, we are able to perceive that William Hillis insisted that certain money received by him at the hands of his mother, was given him by way of advancement. This preten- ■ sion is resisted by the distributees, who insist that the money was only loaned, and should be accounted for as part of the estate. The money in controversy forms a large proportion of the estate alleged to have belonged to the intestate.

After the lapse of twenty-six years since the death of Abigail Hillis, and after the rights of complainants as her distributees had accrued; after the lapse of *twenty-one years from the death of William Hillis, who was charged with the duty of administering the estate; long after William Hillis’ estate had been administered by Irvine his administrator, and the amount thereof settled; and in the absence of William Hillis’ books and papers, Robert Hillis his heir at law is called on to litigate the question, ‘‘What was the amount of Abigail Hillis’ estate for distribution?’ ’

This delay of itself is gross laches; it renders complainant’s claim obnoxious to the objection of staleness. The fact that Mrs. Seawright was a feme covert at the time the right accrued, and has continued to be so ever since, loses its force when assigned by the husband as a reason for his want of diligence; he was under no disability and shows no excuse for the delay.

Adhering to the decisions of this court, and approving the reasons upon which they are founded, in the cases of Todd & wife v. Moore’s adm’r, 1 Leigh 457, Carr’s adm’r, &c. v. Chapman’s legatees, 5 Leigh 164, I am of opinion to reverse the decree and dismiss the bill because of the staleness of the demand asserted. If anything further were needed to justify this conclusion, it would be found in the presumption that complainant’s demand has been already paid. The lapse of more than twenty years, of itself affords the presumption which stands for full proof, unless repelled by other evidence. In this case nothing is shown to repel the presumption; on the contrary it is aided by other circumstances disclosed in the record.

The other judges concurred in the opinion of Samuels, J.

Decree reversed.  