
    *Randolphs Ex’rs v. Randolphs Ex’rs.
    [April Term, 1801.]
    State Transactions. — An account of state transactions refused.
    Same -When Refused — Case at Bar. — Especially where it appeared, that a bond was given by the plaintiffs testator to the defendants testator, after the transactions took place.
    This was an appeal from a decree of the High Court of Chancery, where Thomas Randolph surviving executor of John Randolph deceased, brought a bill against David Meade Randolph and others executors of Richard Randolph deceased, stating'»
    That Richard Randolph, the elder, died in 174 , leaving a widow, some daughters, four sons, to wit: Richard (his eldest son, and one of his executors,) Brett, Ryland and John; all of whom are since dead. That the testator devised lands and slaves of considerable value to his said sons; and being possessed of a great personal estate, and having debts outstanding, more than sufficient as he supposed to pay his debts, as well as of a large tract of land in Bedford, containing upward of 50,000 acres, then unpatented. He devised all the residuum of his estate (which included the said tract of unpatented land) to be equally divided between his said four sons.
    That the said Richard, the son, qualified as executor; received the profits of a considerable part of the estate allotted to the younger sons; collected the debts due the testator; and sold the said tract of un-patented land; but never made up any account of his administration; nor did he ever account, with his brothers, for their proportion of the residuary estate, although considerable.
    That the said John Randolph being very young, at the death of the testator, lived with the said Richard his brother, for many years; and some time after he came of age. That the said Richard received the rents, and profits, of his estate., furnished '*him, with suitable and necessary things, and probably made him advances in money.
    That, on the 3d of April 1764, the said John Randolph gave the said Richard his bond, for .£635. 15. 1. current money ; but the plaintiff has reason to believe, that this bond did not include a full and final settlement, of all their accounts, to that period; but was rather intended as an evidence of the advances made, by the said Richard to the said John; subject nevertheless to a further settlement, when the accounts of the estate of the said Richard Randolph, the elder, should be made up. Por the said John Randolph having entered into an agreement, with Messrs. Capel and Ozgood Hanbury, of London, for a loan of £4000. sterling, the said John Randolph, out of that sum, paid the said Capel and Ozgood Hanbury, the sum of £960. 13. 6. sterling, due them from the estate of Richard Randolph, the elder, and chargeable, of course, to his executor; with whose privity and approbation the same was paid; and the plaintiff has no doubt, the same was to be accounted for to him, at the final settlement.
    That this payment is proved by a mortgage from the said John Randolph to the said Capel and Ozgood Hanbury, dated the 22d of February 1768.
    That the said John Randolph and the said Richard Randolph his brother being both dead, a suit was instituted in the General Court, by David Meade Randolph a son and one of the executors of the said last named Richard Randolph, upon the bond aforesaid, which had been assigned him by his father, in his lifetime; but the plaintiff knows, not for what consideration. In which suit, the said David Meade Randolph, afterwards, obtained judgment in the District Court, in April 179Ó, for £1271. 10. 2. and costs : Which he threatens to inforce without any deduction ; although the said John Randolph never received any satisfaction for the said £960. 13. 6. paid Capel and Ozgood Han-bury as aforesaid, as the plaintiff believes; '’nor hath the said Richard Randolph’s administration account ever been made up, so as to ascertain, whether an3 thing was due thereout, to the said John Randolph.
    That the plaintiff hath requested the said David Meade Randolph to account concerning the administration aforesaid; to give credit for the said £960. 13. 6. sterling, paid Capel and Ozgood Hanbury; and to let a full and fair settlement, of all accounts between their testators, take place. But he refuses to do so, insisting that the said sum of £1271. 10. 2. is not subject to any deduction, and that the said John Randolph had no set off against the said bond; although the plaintiff alleges, that the bond having lain more than twenty years, without any claim made thereon, affords a strong presumption, that some right to a discount did exist: And, as the payment, to the said Capel and Ozgood Hanbury, was made, some years subsequent to the date of the said bond, and to discharge a debt properly payable by the said Richard in his character of executor, out of the estate of his testator, which was amply sufficient for the purpose; as the account of his administration had never been made up; and 'as the receipt granted to the said John Randolph, for the money paid to the said Hanbury’s expresses (as the plaintiff hath been informed and believes) that it was to discharge a debt due from the estate of Richard Randolph, the elder, and was subsequent, in date, to the bond, the plaintiff has no doubt but that some such settlement, as above mentioned, was' to have been made between the said John and Richard; which might have been prevented by the death of John, and the- succeeding confusion occasioned by the war; and might have been further interrupted by misplacing of the receipt, the existence of which the plaintiff doubts not, and trusts he shall be able to prove, as well as the payment of the said ¿£960. 13. 6. sterling in manner above mentioned.
    The bill therefore prays a full answer to the premises, interrogates the defendant David M. Randolph, as to the consideration of the said bond, the payment of the said ^960.13. 6. sterling, and the consideration of the assignment to himself: It likewise prays a full settlement, of all accounts between the said John and Richard, as well those of a private nature, as those which may relate to the estate of Richard Randolph the elder: that credit may be allowed the said John Randolph, for the said ^960. 13. 6. sterling, with interest from the time of payment: that the defendants may make up an account of their testators administration, on the estate of the said Richard Randolph the elder, and credit be allowed the said John Randolph for his proportion of the residuary estate if any; that the said David Meade Randolph may be enjoined from further proceedings, on his judgment; and for' general relief.
    To this bill Jerman Baker made an affidavit, ‘That some time previous to the late war, about the year 1774; he thinks he was appointed, by an order of Henrico Court, a commissioner to examine the account of the administration of Richard Randolph upon the of his father Richard Randolph the elder. Progress was made in the settlement; but in consequence Of the interruption occasioned by the war, the same was not finished; nor doth he believe, that an account of the administration aforesaid was ever made up, and rendered by the said Richard Randolph ; nor any settlement made with his Brothers Brett, Ryland and John, who were interested in the estate of Richard Randolph the elder.”
    The answer of David Meade Randolph states, That the said Richard Randolph his father, a little before his death (in con ■ sequence of the defendant having been his security for several sums, and also for his administration .of Ryland Randolph’s estate, and having also paid for him '£ ) *assigned the said bond to the defendant, on the 3d of March 1785, to the use, expressed in the assignment, but the same was intended as an indemnity to the defendant for' his secu-rityships and advance aforesaid. That his father was executor, and be believes solé acting executor of the said Richard Randolph the elder; but believes the said John was entitled to nothing or very little, as one of the residuary legatees, for the defendant has often heard his father say, that after the testators debts were paid, there was nothing to divide; except a debt due from Colonel R. Bland and from his brother Brett Randolph, the amount of which the defendant does not know, but the same were never received. That the defendant knows not whether the Bedford lands were ever patented, or sold by his father; in short he knows nothing about them; but when the defendant was in that county he understood they were barren, and not worth 6d, per acre. That the said John lived with the defendants father, until his marriage; which was some time after he came' of age. That he was an expensive young man, and the testator furnished him with very large sums of money from time to time; and imported goods for him, to a great amount,' from year to year, as appears by the annexed account, from the books of the said Richard; and by which, in 1762, there was a balance due the testator of 645.15.7. That the said account is carried down to 1769, when the balance due was ^641.13.11^. and, by inspecting the account; it appears, That the said Richard continued to make advances to him, and has credited him for considerable sums,,but the. balance almost always continuing nearly the amount of the bond. That it is probable the said Richard never may have made up any account of his administration, on the estate of the said Richard the elder; but the said John, who had attained his age of 21 years, some -time before the bond was given, never would have entered into it, if -he had not been satisfied that his brother Richard, as executor of Ah is father, owed him nothing; and at this distance of time a Court of Equity will presume- so, unless there was any suggestion, or proof of undue influence; for which there is not the smallest ground, either from the character, or conduct of the said Richard. ■ ..That, although, the estates, devised the said John, were considerable, yet it is well known that Virginia estates, at a,distance are not profitable; that the said Richard’s under his qwn eye were not so; and it is probable, that the expenses of the said John were more that the profits of his estate. That as to the length of time, which elapsed after the date of the bond, before .any steps were taken, with respect thereto, it. was to be observed, that the said John was the brother of the said Richard,, who always had an aversion to quarrel, as well as to bring suit against his brother. Besides eight, or nine years of the time were during the war; near six of which are, by the act of Assembly, but one day; so that no conclusive argument is to be drawn, from the length of time. That, instead of deduction for the ¿£960. 13. 6. sterling, the defendant is advised a contrary conclusion ought to be drawn; because the said John Randolph must, at the time of executing the said mortgage, have been, at least, 26 or 27 years of age; had been some years married, and must have known, whether it was incumbent, on him, to have secured that sum, to the Hanbury’s, and therefore took upon himself to pay the amount of his fathers debt to the house? Which assertion is corroborated by an account from the house of John Hanbury and company dated in 17S ; by which, there was then due to the said house, a balance of ,£493. 10. 8., from the estate of the said John, arising as the, defendant presumes for necessaries imported for the use of his estate; and it cannot be presumed, that the said John would have given his bonds for .£600., if nothing was due from him; and afterwards mortgaged his estate, for upwards of ;£900. sterling, if not due also. That the facts, stated in the bill, appear to be the suggestions of *Jerman Baker; who knew a great deal of the transactions between the said John and Richard; and to whom the defendant shewed the bond before he brought suit. That Baker looked at it for some time, as if endeavouring to recollect the transaction, and then observed, that he was satisfied the money was due, and must be paid; or words to that effect.
    In June 1796 general replication and commissions :
    In January 1797 the cause was set for hearing.
    There is, in the,record, a copy of the will of Richard Randolph, the elder, dated the 18th of - December 1747; and proved, and recorded in June 1749.
    There is also a copy of the mortgage from John Randolph to the Hanbury’s, dated the 22d of February 1768. Which reciting, that, “Whereas the said Capel and Ozgood Hanbury have agreed and undertaken to advance and lend unto the said John Randolph, the sum of four, thousand pounds sterling money of Great Britain (including the sum of fifteen hundred and seventy four pounds, six shillings and six pence sterling money, due from Ryland Esquire, to the said Capel and Ozgood Hanbury; and also the sum of nine hundred and sixty pounds thirteen shillings and six pence sterling money to them due, from the estate of Richard Randolph of the county of Henrico Esquire, deceased.” Proceeds thus, “Now this indenture witnesseth, that for and in consideration of the said agreement,and also in consideration of the sum of twenty shillings to the said John Randolph by the said Capel and Ozgood Hanbury in hand paid &c.” It was re-acknowledged in October 1768, and again in November 1768. In May 1768, it was recorded, in the General Court.
    The last account spoken of, in the answer, is in these words:
    *“Dr. The estate of Col. Richard Randolph on account of J ohn Ran - dolph. Cr.
    May, 1751. To balance of Jonn Randolph’s account then sent him. 493. 10. 8. To interest from said date till paid.
    (E. E.) J. Hanbury, & Co.
    February 20th, 1752.”
    In March 1799, the Court of Chancery, upon a hearing, dismissed the bill, with costs. From which decree, the plaintiff appealed to this court.
    Randolph for the appellant.
    It does not appear that there ever was a settlement of the executors and guardians accounts; which ought to have been done, as there was a large body of lands, and a considerable re-siduarj' estate appropriated to the purpose, of paying the testators debts; which must not only have been sufficient for that purpose, but probably left a surplus. Added to which, the profits, of John Randolph’s own estate, must have been very great, during his long minority; and it ought to be shewn, how they were disposed of. Besides the great payment made to the Hanburys, on account of the estate, several years after the bond was given, entitled the plaintiff to a discount for that sum; and ought to have been so applied. At least a further opportunity, of enquiring into the matter, ought to have been afforded the plaintiff, by sending the cause to account, before a commissioner. The antiquity of the bond, moreover, affords a strong presumption, of its being satisfied. Otherwise, it is not easy to conceive, why it was suffered to remain, so long, without payment having been enforced, or even demanded. The account in the record related to another John Randolph, and not to this John Randolph; who, by reason of his tender years, could have had no account against him.
    *Call and Wickham contra.
    .An account would have been improper, after so great a distance of time, when the circumstances must all have been forgotten, and the evidences lost. For as on the one hand the payments cannot be known, so on the other, the property, debts and transactions, must have escaped all recollection : . Insomuch, that perhaps the delivery of a single slave, or any other article could not now be shewn. The Court therefore will not, at this day, indulge an inquiry into such stale matters; 4 Bro. ch. rep. 258. Which case expressly applies. For here the testator has lain by, and suffered the estate to be distributed, and then the appellant, in the language of the judge there, comes forward to demand an account, after the right has been so long slept on, of transactions originating above half a century ago. The granting of which request would expose the appellee to every possible inconvenience. But the bond is a presumption of a settlement, until the contrary is shewn; and the long acquiescence afterwards confirms the presumption; especially as the mortgage, itself, would have been an incitement to demand it. Added to which, Richard Randolph, whose character is not impeached, assigned this bond to his own son as a security, and it is not probable, that he would have done so, if he had not considered it as actually due. The mortgage was a transaction between John Randolph and the Hanburys; and therefore, strictly speaking, is no evidence against Richard Randolph : But allowing it the fullest force, yet it was probably no more than John Randolphs own share of the debt due from the estate; and although the mortgage states it as money borrowed, that was merely the mistake of the writer, and proves nothing. Besides the bond is due to Richard Randolph in his own right, and the sum, mentioned in the mortgage, was a debt due from the estate. So that the mortgage could not form a proper discount against the bond. The uncertainty, in all these matters, is alone sufficient, *to repel the application for an account; because it proves how unsatisfactory the enquiry must be, and to what difficulties it would expose the parties against whom it is prayed. The antiquity of the bond was a proper subject for the consideration of the jury; and they have decided it in favor of the creditor. Besides the delay, to sue upon the bond, _ is accounted for, by the answer; and was owing to the family connection, and the friendship between the brothers.
    Randolph in reply.
    If the appellee would be under any difficulties in taking the account, it is the fault of his own testator; who ought to have come to a settlement, at an earlier period. But as it is not stated that any vouchers are lost, it does not appear that there would be any inconvenience in taking the account. If it were true, that the Bond was given for transactions between John Randolph and Richard Randolph, yet the debt, taken up by the mortgage, was more than sufficient to pay it, and ought so to be applied. The case from 4 Bro. instead of repelling the application for an account, contains principles expressly proving our right to it.
    Hay on the same side.
    Insisted, that it was plainly to be inferred, from the whole complexion of the case, that the bond was given on account of transactions relating to the estate; and if so, then that the mortgage was a clear satisfaction of it.
    Cur. adv. vult.
   LYONS, Judge.

Delivered the resolution of the Court. That there was no error in the decree; and therefore that it was to be affirmed.

Decree Affirmed.  