
    *Toler’s Adm’r v. Toler et als.
    January Term, 1856,
    Richmond.
    1. Executors and Administrators — Account—Bill to Surcharge — Statute of Limitations — Case at Bar, — A testator dies iu 1808, leaving the residuum of his estate to his four children — one of them dies shortly after the testator, leaving a number of children. An administrator, with the will annexed, qualifies on the estate of the testator, and his account is settled by the court in'1811, showing a considerable balance due at that time to his testator’s estate. He further administers, but returns no account of the administration, and dies in 1812. The youngest of the grandchildren arrives at age in 1830, and in 1835, within five years after his arrival at age, his brothers and sisters and himself file a bill to surcharge the rendered account of the administrator, and to have a full settlement of his administration of the estate of their grandfather — claiming their father’s share of the ascertained balance. Neither the statute of limitations nor lapse of time bar their recovery.
    2. Same — Sureties—Real Estate Directed to Be Sold— Liability of Sureties — Statute.—The law formerly exempted the sureties of an executor or administrator with the will annexed from responsibility for the proceeds of real estate directed by the will to be sold by the representative and appropriated to the payment of debts and legacies. (It is otherwise now. See Code, ch. 131, § 2, p. 545.)
    3. Same — Direction to Sell Real Estate — Administrator c. t. a. Purchaser — Fair Sale. — A will directs real property to be sold by the executor and the proceeds to be appropriated, with the proceeds of the personalty, to the payment of debts and legacies, and tbe balance to go to residuary legatees. The executors renounce their right to qualify as such, and then one of them qualifies as administrator c. t. a. He sells the property under the will, himself becoming the purchaser of a portion of it. The sale bring a fair one, and a fair price being given for the property, is to he confirmed.
    4. Same — Liability.—A delinquent personal representative has in his hands a balance, arising from the sales of personal property, for which his sureties ■ are liable jointly with him, and several other balances arising from successive sales of real estate, made under the will of the testator, for which they are not liable; his estate is to be subjected, at the suit of those entitled to the estate of the testator, first to the payment of the fund for which his securities are responsible, and next to the payment of the other balances in the order in which the sales of the realty were made.
    5. Same — Purchase of Equity of Redemption by Administrator c. t. a. — An administrator c. t. a. purchases, at his own sale made under the will, an equity of redemption In certain lands of his testator. He afterwards pays off the lien on the land, but takes no deed *of release from the trustee. He holds it during his lifetime and it descends to his son, who sells It to another with special warranty. If the estate of. the administrator, after his decease, is not sufficient to pay to those entitled thereto the purchase money with interest, the land in the hands of the' holder will be liable to them for it, for he bought only such title as the administrator had, and in his hands it would have been liable to be re-sold for the payment of the purchase money.
    Henry Toler and five others, children of Henry .Toler the elder, deceased, filed their bill in March, 183S, in the Circuit Court of Caroline, seeking- to recover the share of their ■ father, the said Henry, in the estate of his father, Benjamin Toler.
    The bill states, that the said Benjamin Toler died in 1808, leaving a will; that his son Mathew Toler became his administrator with the will annexed, and Wm. Clarke, John Anderson, Patrick Fowler and Ed. Hundly became his sureties; that the testator gave his Kentucky lands to his sons, the said Henry and Mathew — ^100 to his grandson Benjamin Hooper-some slaves to his grandson John Jones — a negro girl to his grandson Miller W. M’Craw — and then directed the residuum, real and personal, to be sold, and the proceeds distributed among the said Mathew, and Henry, and Samuel, .another son,( his share to be held in trust by his executors, and used by them for him at their discretion,) and his daughter Betsy, the wife of Thomas Hooper; that Samuel died intestate, and without issue; and that there had never been a representative of his estate, and no proper account had been rendered of it by the administrator and trustee; that Henry Toler, the ancestor of the plaintiffs, never received his fourth of the residuum, nor had his family received any part of it; that he died shortly after the testator, his father, the said Benjamin, leaving his children, the plaintiffs, of very tender years; that no one ever qualified as his administrator, and his estate was wholly unrepresented, until for the purposes of this suit, it was committed to the sheriff of Hanover; that he died before the said Mathew had completed his ^administration or rendered any account of it; that the administrator possessed himself of several tracts of land of his testator, the “Goose-ponds,” in Caroline, “ Anderson’s old Store,” in Hanover, which he sold to B. Burch for ,£403 11 5— some lots in Hanover town, which he sold for $238, besides other lands sold to W. C. Nicholas, the quantity and value of which they were not yet apprised of, and made large sales of personal property; that he rendered an account before commissioners of Hanover County Court, which showed an admitted balance due the estate of ,£1,412 17 6%, as of the 20th of April. 1811, being, as the commissioners state, the account “as far as the said Mathew Toler has administered the estate;” that this account was not reported to court until the 24th of May, 1815, when it was at once recorded, without having lain the usual time for exceptions. The bill impeached the account for omitting to credit the amount of sales of personalty at Woodbury; also, because the administrator purchased a part of the real estate, “Goose-ponds,” himself, and rendered no account of the purchase, nor of his disposal of the purchase money. It charges, that this tract, “Goose-ponds,” after being advertised for sale by the administrator, was privately and pretendedly purchased by himself; that no account had been rendered of the purchase money; that in virtue of this fraudulent and pretended purchase, the administrator held the land as his own until his death, receiving the profits, and that at his death it devolved, (as so pretended) by devise or inheritance, on Thos. CJ. Toler, a son of the said Mathew, who held it and received the profits until lately, and then sold it to Robert Peatross, Wesley Saunders and Ellis G. Saunders, who purchased it with full knowledge of the plaintiffs’ rights, and that the said Toler was wholly destitute of any title thereto; that the said lands are still the estate of Benj. Toler, in the hands of these purchasers, with notice; and that even if the sale be sustained, they are liable for the purchase money still unpaid, as also for the large balance *due on Mathew Toler’s administration account; — an account of the rents and profits from the death of Benjamin Toler is also claimed. The bill then impeaches, as fraudulent and illegal, a pretended settlement of the balances due on the administration accounts after the death of Mathew Toler, between Carter B. Page, who qualified as Mathew Toler’s administrator, (with John W. Page, Benjamin Brand and Andrew Stevenson as his sureties,) and Thomas N. Walker, who married and has survived Ann, the only daughter of Mathew Toler, and the said Thomas U. Toler, his only son. It states that these persons, as representatives of Mathew Toler, (Walker acting for Thomas IT. Toler, who was an infant,) brought a suit against Carter B. Page, his administrator, for an account of his estate; that Parke Street, sheriff of Hanover, and committee of Benjamin Toler, also sued Page, as administrator, for the balance due from Mathew Toler to the estate of Benjamin Toler, on his administration account; also for property held by Mary Toler, the widow of Benj. Toler, which had bedn sold by Page after her death ; that while these suits were pending, it was agreed between Walker (a needy and insolvent man) and Page, that Walker should supersede the sheriff by qualifying as administrator de bonis non of Benjamin Toler, and thus centering in himself the control of both estates, should have a settlement with Page of his liability to the legatees of Mathew Toler, and also of his liability to the estate of Benj. Toler for the debt of Mathew, his intestate, as administrator of said Benjamin ; that this was done; that Page, in his answer, admitted a large amount of assets in his hands, as administrator of Mathew Toler — also a balance, the proceeds of property held by Mary Toler, widow of Benjamin, sold by said Page after her death — and admitted that Mathew’s estate was largely indebted to that of Benjamin; and that, in the accounts taken, he is charged with an admitted balance of $7,484 27, assets of the estate of Mathew Toler, and $493 33 for property* held by Mary *Toler, the widow of Benjamin Toler, sold by him; and that a special report was made at the instance of Page, in which he asked to retain a large amount of these assets for the debt due from Mathew’s estate to that of Benjamin, and also to retain another amount for a pretended debt due from Benjamin Toler’s estate to Miller W. M’Craw, as his ward, for whom it was pretended that the said Page and the said Mathew Toler also were guardians, though they never were his guardians, and no one had ever demanded of Page the balance so retained, and he had never paid a cent of it; that the large balance aforesaid being thus reduced to the small sum of $3,673 65, which Walker was willing to accept, and to discharge Page, he executed to Page an instrument dated 13th June, 1822, granting him a discharge, and directing both suits to ' be dismissed, which was done accordingly. The bill insists that this transaction was illegal and void :■ — 1. Because Walker, as administrator de bonis non, had no right to enter into it. 2. Because it was collusive and fraudulent. 3. That Page having admitted his debt due to Benjamin Toler’s estate from that of Mathew Toler, his intestate, could not distribute rightfully the assets of Mathew Toler’s estate,' and that such a distribution was a d'evastavit, which subjects his sureties. The bill prays for a fair account of Benj. Toler’s estate, to subject the lands in the hands of the purchasers, and an account of their rents and profits, and to subject the sureties of Mathew Toler, as administrator of Benj. Toler, and of Page, as administrator of Mathew Toler. The defendants made by the bill are, Walker in his own right, and as administrator de bonis non of Benj. Toler; Berkeley, sheriff and committee of Samuel Toler, deceased ; Johnson, administrator of Page, and Page’s sureties, as administrator of Mathew Toler, who are Brand, Jno. W. Page and Stevenson; and the securities, or their representatives, of Mathew Toler, as administrator of Benjamin Toler; Wm. Clarke, Fleming, as administrator of Anderson, Dickinson, administrator of Fowler, and Berkeley, *committee of Hundley; Elizabeth Hooper, residuary legatee of Benj. Toler; the purchasers, Peatross and Ellis G. and Wesley Saunders; Berkeley, committee of Henry Toler, and Winn, committee of Mathew Toler.
    Brand answered, insisting that the plaintiffs have no right to the account they' ask, of the estates of Benjamin and Mathew Toler, which can only be rightfully demanded by the administrator of their ancestor, Henry Toler — he relies on the settlement between Page and Walker, ’ which he believes to be fair — he says, also, he has heard that Page did pay the debt due to Miller W. McCraw, and insists that these transactions shall not be disturbed after such a lapse of .time. Clarke, surety of Mathew Toler, as administrator of Benjamin Toler, calls for proof of all the matters of the bill, and denies the plaintiffs’ right to the accounts prayed for. Stevenson, a surety of Page, as administrator of Mathew Toler, answered, denying that the sureties of Page are liable for the acts of Mathew Toler, as administrator of his father Benjamin, nor for the real estate sold by the administrator — insisting on the settlement between Page and Walker as a full discharge of the former, and denying that the admissions of Carter B. Page, in his answer in the suit of Walker against him as to the amount of assets in his hands belonging to Mathew Toler’s estate are obligatory on his sureties. Wesley Saunders answered, admitting that he held a small portion of the land called Goose-ponds, which he purchased at an open and fair sale, and at a full price; denies that he purchased with any knowledge of the title of the complaih-'ants, or any of them — on the contrary, he had never heard of their title at the time of this purchase, and does not now believe that they have any. He at one time owned a moiety of the tract which he purchased at a sale under a deed of trust from Thomas N. Walker, who married the only daughter of Mathew Toler, and in that right claimed and held it; and he never heard of any claim to the land until 1834, *when a letter was written by the complainants, or some of them, offering to take $100 each for their interest in said land, which was since his present purchase. That the remedy of the complainants, if any, is at law; but they* have none in law or in equity; for they are barred by the statute of limitations. Moreover, Mathew Toler fairly purchased the land. He insists on the payment by Page to Walker, as valid and a complete discharge, and that the money thus paid was assets in Walker’s hands, as administrator of Benjamin Toler, for which his sureties were responsible; and he refers to and adopts the statements in the answer of his co-defendant, Ellis G. Saunders. Ellis G. Saunders answered, insisting that the remedy, if any, is at law ; that the plaintiffs stand, in reference to the land, upon the ground of heirs or dev-isees; but they are not heirs, because their ancestor, Henry Toler, was not; for the land was devised to be sold; nor devisees, for the land was not devised to their father —that they can only claim as heirs of Henry Toler, standing in loco parentis, to have a settlement of Mathew Toler’s administration, and a distribution of the balances, if any. But he does not admit any such balance, with which he has no concern, and calls for strict proof. He admits he is now in possession of a portion'of the tract (540 acres) which he purchased of Thos. U. Toler, son of Mathew Toler, by whom it wa's sold publicly, after being for some time advertised; but it is not true that he had any legal or proper notice, or even direct notice of the claim set up by the complainants. He had indeed heard that the complainants, or some of them, pretended a claim to a portion of the land, to wit: one-third, by which they were endeavoring to extort something from Thomas U. Toler, because they believed that their conveyance was necessary to the validity of the title; but he also heard and believes that the claim was a mere pretence, of no validity whatever. Whether valid or not, however, he insists that the loose and general information which he received, was not notice in *legal estimation, and does not in any manner attach to him the obligation of a purchaser, with notice of a valid claim. He insists that Benjamin Toler, in 1802, conveyed his land to Nathaniel Pope, and William and Benjamin Pollard, to secure a large debt to Wm. Morris, (which conveyance is exhibited) and by his will devised it to be sold with the rest of his estate; and in the year 1808, Mathew Toler, his executor, did sell it according to the devise, and himself became the purchaser, at the price of £926 4, and paid the purchase money. A copy of the advertisement of sale is exhibited. He states that the property at the “Goose-ponds,” was appraised at ^1,409 16 6, while in the administration account it is entered at £2,48S 10 6%, from which it is inferred the price of the land is taken in, which he insists is further shewn by Mathew Toler’s having charged himself with the price of the land on the day of sale, (20th December, 1808,j and entered it in his administration account on the next day, as paid to Morris. He does not know that there was ever any conveyance to him of the land, as he has found none, but infers that Toler must have obtained a conveyance, which has been lost. But by the payment, Mathew Toler was subrogated to the rights of his creditor, and the court would protect him — and much more a purchaser under him without notice. He insists he is a purchaser for full and fair consideration, without notice, and that he cannot be affected or the land bound for any debt whatever, except the purchase money, even if there was still a balance due from Toler upon his general account as administrator; but this no longer existed, having been settled between Page, administrator of Mathew Toler and Thomas N. Walker, with Thos. N. Walker in his own right, and as administrator de bonis non of Benjamin Toler and Thos. U. Toler, to which reference had been made by the plaintiffs. But that if the payment was not valid, then the sureties of Page were hound and liable before any demand can be asserted against him; and he relies on lapse of time, adverse *possession of more than twent3 years, and the statute of limitations. ■ He insists that the sales at Woodbury are properly credited in the administration account. John W. Page answered, insisting that no act or admission of Mathew Toler, shewing a debt due from him to B. Toler's estate, can bind ■or affect him, who is only responsible as surety of Carter B. Page for his administration of Mathew Toler’s assets, in which the plaintiffs have no interest, except as claimants of the debt due B. Toler’s estate, which has been fully and fairly settled by Page as administrator with Walker and Thomas U. Toler.
    At this stage of the case, the plaintiffs filed a supplemental bill, shewing that by the answer of Bilis G. Saunders, it appeared that B. Toler in his lifetime conveyed Goose-ponds in trust to secure two debts to Morris, for which said Benjamin Toler was security for Thomas Hooper, husband of his daughter Elizabeth Hooper —that Benjamin Pollard is the surviving trustee in whom the title is now outstanding' — that this lien existed at the testator’s death — that there never was any sale under the trust deed, nor release by the trustee— that the purchase by the administrator from himself was fraudulent, collusive and void, and that the land now stands charged with the trust created by B. Toler’s will. That Mathew Toler paid the debt to Morris out of the personal estate of his testator, a payment which gave him no color of title to the land. Moreover, that he had failed to pursue Hooper, the principal debtor to Morris, and obtain indemnity from him for the money so paid. They shew farther, that Thomas U. Toler sold a part of the same land to Robert Taliaferro, who purchased with full notice of their title; and they make Benjamin Pollard, the surviving trustee, and Robert Taliaferro defendants. Ellis G. and Wesley Saunders answered the supplemental bill, insisting that the heirs of the other trustees, Wm. Pollard and Nathaniel Pope, should be made parties— that Mathew Toler did not pay the debt to Morris out of the assets of B. Toler’s estate, but with his own means — that Mathew Toler *in his administration acted fairly and honestly, though ignorantly ; and that the purchasers under Mathew Toler, having paid the purchase money to .him or his assignee, or his dev-isee, are entitled to the benefit of the liens on the said land. Wesley Saunders having died, his infant heirs were brought before the court by another supplemental bill and the suit was revived against Ellis G. Saunders as his administrator.
    It was proved by several witnesses, that they were present at the sale of Goose-ponds, by the administrator, Mathew Toler, in 1808 or 1809; that there were a good many bidders there; that the property was cried for some time, and was finally “knocked out” to Mathew Toler at about twenty-two shillings per acre, which they considered a very fair price for it, and that they thought the sale was fairly conducted.
    One witness proved that he was present at a sale of 450 acres — a portion of the same land — in the fall of 1834, after the death of Mathew Toler, by Thomas U. Toler, his son, (who claimed to be the owner of it,) and became the purchaser of it; that he afterwards understood the title was defective ; and, when Toler came to collect the amount he had bid for- it, he told him what he had heard ; and, after paying him a part of the money, said he would require Toler to give him a refunding bond, with secu-
    
      rity, to repay him the purchase-money, in the event the title proved defective; that Toler declined to do so, saying he meant to leave the State, and would not ask any one to become his security; that, subsequently, Toler brought him several papers, and among them the opinion of Mr. Hector Davis, that the title was good; that he carried these papers to counsel of his own, who advised him to be cautious in respect to it; that several propositions were made to accommodate the matter, by himself and Toler respectively, but that they could not come to an understanding; and that, thereupon, Toler refunded, to him what he had paid, saying that he could close a bargain with Mr. Ellis G. Saunders for it the next day, which *he afterwards did; that, two or three days afterwards, he saw Mr. Saunders riding over the land, and that he seemed to be very much pleased with his bargain; that he asked him whether he was to have a deed with general warranty, or one from Toler and his heirs, to which Saunders replied he was to have a deed from Toler and his heirs, which was as good a title as he wanted; he then asked him if he would take for the land $1,500, and make the title good, to which he replied that he would not; he would sell only such title as he had bought. It appeared elsewhere from the record, that the deed from Thomas Ü. Toler to Saunders was one with special warranty.
    Another witness proved that Henry Toler, the elder, died insolvent, (as was supposed,) in July, 1808, and that Benjamin Toler died shortly before him; that the plaintiffs, or such of them whose ages she knew, were born respectively, as follows: Mathew, in June, 1803; Mary, in October, 1805; James, in May, 1807; and Henry, in March, 1809; that she did not know the ages of the others, but that none of them were younger than those named.
    While the suit was pending, Henry Toler, the younger, died, and his estate was committed to M. Deer and Sarah A. his wife, (widow of said Henry.) On the hearing of the case, the court dismissed the bill of the plaintiffs, and the administrator and administratrix just named appealed to this court.
    Cabell, for appellants
    contended, first, that considering the age of these plaintiffs, and the fact that there never was an administrator of the estate of their father, Henry Toler, together with other equitable considerations, they were in full time when they filed their bill to demand a settlement of the balance ascertained to be due them by Mathew Toler’s estate, and to swell that balance by a surcharge and falsification of his accounts, and that they were not to be cut off from this privilege by the alleged settlement between Mathew *Toler’s administrator and the administrator de bonis non of Benjamin Toler.
    1st. Because it was fraudulent and collusive.
    2d. Because the3 had no legal right to make it.
    The assets of Benjamin Toler had been converted out and out, by Mathew Toler, his administrator. He had settled his account, and admitted a debt due thereon from himself; and for that he was accountable to the legatees of Benjamin Toler, his administrator. The administrator de bonis non of Mathew Toler could-not have recovered it by suit. Wernick v. McMurdo, 5 Rand. 51. Nor could he lawfully receive it, without the assent of the legatees to whom it was due, so as to discharge the administrator and his sureties. The act of Assembly authorizing the receipt by an administrator- de bonis non of assets which have come to the hands of a previous representative of an estate, so as to bind the sureties of such administrator, and by consequence to discharge the previous representative and his sureties, passed April 6th, 1839, (Session Acts, p. 44,) long after this transaction. Buf even that act has a proviso: ‘ ‘That nothing herein contained shall be construed so as to require the payment or transfer of assets which have been converted by any executor or administrator, without the consent of the executor or administrator of such executor or administrator.” And it was held, (Morris v. Morris, adm’r, 4 Grat. 295,) irregular to decree in favor pf an administrator de bonis non against the administrator of a previous administrator, the legatees not being parties, nor assenting to it. It is insisted, therefore, that the payment to Walker by Mathew Toler’s administrator was no discharge of the debt of Mathew Toler to the legatees of Benjamin Toler.
    He further contended, that Mathew Toler had purchased the Goose-pond tract improperly ; for he was made a trustee by the will of that property, and his interests as purchaser and seller were, therefore, in conflict; that Ellis G. Saunders, and the other purchasers from Thomas U. Toler, were purchasers with notice of *the breach of trust; and that it should, therefore, be ■ sold from their hands for the benefit of those entitled to it, under the will of Benjamin • Toler; or, at any rate, should be charged with the payment of its full value at the time of the purchase by Mathew, in case his estate should fail to pay, together with the other debts due to those claiming Benjamin Toler’s estate. He cited on this point, Tompkins v. Mitchell, 2 Ran. 428; Down-man v. Rust, 6 Ran. 587; Hoover v. Don-ally, 3 Hen. & Munf. 316; Wilcox v. Calloway, 1 Wash. 38, (side).
    Lyons, for appellees
    contended, that there is no such doctrine as that a trustee or an executor may not purchase real estate at his own sale. He undoubtedly purchases at his peril; but if he fairly pays for it, at a sale fairly made, he is entitled to hold it, though a trustee; and certainly the parties who receive the money paid by the trustee for the property, cannot insist on having the property also. Let it be conceded, for the sake of argument, that the executor had, perhaps, better not have purchased Goose-ponds, and that he has not paid the balance due to the claimants, will the court rip up a transaction more than twenty years old? And when we see that, in point of fact, it was bought in market overt, at a full and fair price, is it possible that in such a state of facts, and after such a lapse of time, the court will disturb the title of this property in the hands of a bona fide holder? Mathew Toler died in 1811 or 1812, held the property all the time through his heirs or alienees, and suit was not brought till 1835, twenty-four years after. Is there' any probability of doing justice to the parties at this remote period from the time of the transactions to be investigated? These purchasers have had adverse possession too long to be disturbed.
    As to the accounts of Mathew Toler of his administration of Benjamin Toler’s estate — the3 were fully and fairly settled between Page, the administrator of the first, and Walker, administrator de bonis non of the '’'last, the balance paid to the latter, and the suits, for settlement, dismissed. Though the administrator de bonis non might not have been able, as the law then stood, to have compelled the payment of that balance; yet, as he was paid it by Mathew’s administrator, the latter is entitled to be credited with it and discharged. No authority can be shown to the contrary. At any rate, it is too late to re-open this account.
    As to the lapse of time as bearing on these questions, he cited Park’s adm’r v. Rucker, 5 Leigh, 149; Carr’s adm’r v. Chapman, S Leigh, 164; Hayes et als. v. Goode et als., 7 Leigh, 453; Caruthers’# adm’r v. Trustees of Lexington, 12 Leigh,” 610; West’s adm’r et als. v. Thornton et als., 7 Grat. 177; Pollock v. Wilkinson, (unreported case in Court of Appeals of Virginia).
    R. T. Daniel, for appellants:
    1st. As the law stood at the time of the sales by Mathew Toler, securities were not liable for the proceeds of real estate sold under the will — the legislation making them so was subsequent to these sales. Hence, the proceeds of these sales had no place in an administration, and could not therefore be the subject of settlement between Page and Walker, the administrators, by the receipt passed between them. As to the proceeds of the personal property supposed to have been settled by that receipt, the argument is equally conclusive. In the first place, the settlement was fraudulent and collusive; but even if it had been made in good faith, it would not have been binding on the appellants, for it is distinctly settled by Wernick v. McMurdo, already cited, that when an executor has sold an estate, and settled with the distributees by admitting or ascertaining the balance due, the administrator de bonis non has nothing to do with it, and cannot receive it. See also Morris v. Morris, already cited. This settlement, therefore, does not make against the appellants’ claim.
    2d. As to the purchasers of the real estate. The ^Goose-pond estate was sold by Mathew Toler, not as administrator, but as trustee under the will; and he had no right to purchase it himself. Buckles v. Lafferty, 2 Rob. 292; and these purchasers had notice, or were bound to take notice of it, when they purchased it from his son, claiming by inheritance or otherwise through him. Rankin v. Bradford et als., 1 Leigh, 163; and besides this, it seems clear from the .pleadings and depositions, that they had actual notice. Again, these purchasers were pendente lite purchasers, and are bound by the result of this suit just as Toler would be. 2 Tucker’s Commentaries, 427. The property should then be sold and subjected in their hands to the rights of these appellants.
    3d. If we are right in these propositions, or any of them, then the only question that remains is the lapse of time. If we have come in time, the bill should not have been dismissed, but the demands of the plaintiffs should have been ascertained according to the principles above stated.
    In March, 1808, Mathew Toler qualified as administrator of Benjamin, and his administration closed in 1811. He died in 1812, and never returned an account; that was done in 1815 by his administrator, Carter Page. Henry Toler, the elder, father of the plaintiffs, died in 1808, two months after the qualification of Mathew on the estate of Benjamin, and there was never any qualification on his estate until one was appointed pro forma, for the purposes of this suit. Henry Toler, the younger, whose representatives are the appellants here, arrived at age in 1830, and this suit was commenced in 1835, within five years after his arrival at age. The other plaintiffs were older, but even at law, under the strict bar of the statute of limitations, the court could not discriminate between them, but being bound to maintain the rights of the youngest, would carry those of the eldest along with them, it being a joint right which cannot be severed. They are within the statute, therefore.
    *But, again, neither the statute nor lapse of time begin to run until there is a representative. Henry Toler, the elder, could not have sued at the time of his death, and the parties relying on the statute must show there was a representative who might have sued. Hansford v. Elliott, 9 Leigh, 79. And though a court of law might not, a court of equity will take notice of even a hiatus in the right to sue. Burwell v. Anderson, 3 Leigh, '340. These principles are true at law, but in equity there is more liberality — the lapse of time is liable to explanation; and where there is an express trust, no lapse will bar it — Hill on Trustees, 264 — but it is to be executed to the “last syllable of recorded time.” West v. Thornton, and the other cases cited by Mr. Lyons were cases in which parties came into equity to unravel a settled account or to have one settled, and do not seem to be parallel with this case. Vid. Atkinson v. Robinson, 9 Leigh, 393; Baker v.- Morris’ adm’r, 10 Leigh, 285, and other cases cited at page 517 of Tate’s Digested Index. When the accounts are closed, relief will be given after even thirty years. Ballentine on Limitations, ch. 4, p. 81, (Law Lib. vol. 1, p. 42.) And the acknowledgment of a balance utterly répels the effect of lapse of time. Hill on Trustees, 264. Finally, acquiescence is not presumed against parties, non sui juris. Nelson v. Burwell’s ex’or, 4 Munf. 332. Instead of dismissing the bill, there should have been a decree against Mathew Toler’s estate, and those of his securities for their share of the balance due on his administration account properly settled, and then against his estate for the present value of the lands sold by him, or at least for the amount with interest which he received for them; and in default of satisfaction out of his estate, the lands themselves should be sold, and the proceeds applied in the way indicated.
    
      
      See monographic note on “Executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6.
    
   FIELD, P.,

delivered the decree of the court as follows:

The court being of opinion that the claim set forth *in the plaintiffs’ bill • to the share of the estate of Benjamin Toler, which the testator, in the residuary clause of his will, bequeathed to Henry Toler, the father of the plaintiffs, was not barred either by lapse of time or the statutes of limitation, and if the cause had been properly matured for hearing, that the plaintiffs would have been entitled to a decree for the amount found due to them, respectively, upon a proper settlement of accounts, doth therefore adjudge, order and, decree, that the decree aforesaid of the said Circuit Superior Court be reversed and annulled, and that the appellees, Jesse Winn, late sheriff of Hanover county, committee of the estate of Mathew Toler, deceased, Chapman Johnson, administrator with the will annexed of Carter B. Page, dec’d, and Ellis G. Saunders, administrator of Wesley Saunders, dec’d, out of estates of their in-testates and testator in their hands, respectively, to be administered, and the appellees John W. Page, Benjamin Brand, Andrew Stevenson, Ellis G. Saunders, and Robert Peatross, out of their own chattels, do pay unto the appellants the costs expended by them in prosecuting their appeal aforesaid in this court. And it is ordered that the cause be remanded to the Circuit Court of Hanover county, with directions, after the cause shall be matured for hearing, to direct the taking of all necessary accounts to shew the amount due the plaintiffs respectively on account of the bequest in favor of Henry Toler by the residuary clause of the will of his father, Benjamin Toler,. dec’d, and to shew also what, by virtue, of the said clause, shall be due to the legal representative of Samuel Toler, dec’d, and such other accounts as the court shall deem necessary to shew who are bound for the payment of the same, and the extent of their liabilities respectively.

In taking these accounts, the account of Mathew Toler’s administration on the estate of Benjamin Toler, dec’d, made on the 20th of April,- 1811, by Billy Talley, John Anderson and D. Dickinson, jr., as modified by the County Court of Hanover, by the order of the *24th May, 1R15, is to be regarded as correct in substance up to that date, but the same is to be reformed by separating the personal estate from the proceeds of the sale of the real estate, and by crediting upon the account of the administration of the personal estate, as credits to the administrator, the amount of the debts paid by him, including the debt to Morris, and expenses of administration charged in the said settlement, including the amount of commissions allowed by the County Court to the administrator. For such balance as shall be found due on this account, the representatives of Mathew Toler, to the extent of assets received, should be held responsible, as should also the sureties in the administration bond of Mathew Toler, as administrator with the will annexed of Benj. Toler, dec’d, in case of a deficiency of assets of the said Mathew Toler to satisfy the same; but the sureties in that bond are not, in any state of circumstances, to be held responsible for the proceeds of the sale of the real estate of Benjamin Toler, dec’d, sold bj the said Mathew Toler as administrator.

Taking the settlement above referred to, when so reformed by separating the personal estate from the proceeds of the sale of the real estate, and applying the credits as above directed to the administration account of the personal estate, as the basis for settling a legatee account, a legatee account is to be taken to shew the amount due to the plaintiffs, respectively, and to the administrator of Samuel Toler, dec’d, under the residuary clause of the will of Benjamin Toler, dec’d, and to such others of his devisees as have not been paid. For the payment of which, the administrator of Mathew Toler, dec’d, is to be held responsible, and for such interest as may be rightfully chargeable thereon, to the extent of the assets of Mathew Toler, in a due course of administration, which were received by the administrator, which will make it necessary to have a settlement of Carter B. Page’s administration of Mathew Toler’s estate, and also the account of Chapman ^Johnson’s administration on the estate of Carter B. Page, dec’d — which accounts the Circuit Court is to direct to be taken. The assets of the estate of Mathew Toler, dec’d, are to be applied, first, to the payment o'f what may be found due on the account of Mathew Toler’s administration of the personal estate of Benjamin Toler, next, to the payment of the proceeds of the real estate conveyed by Mathew Toler, administrator of Benjamin Toler, to Benjamin Burch, and of the real estate conveyed by him to Thomas Christie, and such interest as may be due thereon, and then to the payment of what shall be due of principal and interest for the purchase of the tract of land called “Goose-ponds.” The court being of opinion that the sale made by the said administrator was a fair sale, and was sold for a fair price, it ought to be confirmed, although the said Mathew Toler became the purchaser, thereof. But as the said Mathew Toler acquired by virtue of that purchase an equitable title only to the land, subject to be re-sold to raise the unpaid purchase money, the land, in the hands of the present holders, claiming under Mathew Toler, and having no better title thereto than Mathew Toler had, is liable to be re-sold to satisfy the balance of the purchase money, after the assets of Mathew Toler, received by his administrator, shall be exhausted; and, therefore, if after applying the assets of Mathew Toler as above directed, there shall remain a balance due of the purchase money, such balance is to be raised by a sale of so much of the “Goose-ponds” land as may be necessary for that purpose.

Hater in the term, the following addition was made to the decree:

For satisfactory reasons appearing to the court, it is ordered that the following addition be made to the decree entered herein, on the 28th day of January last, among other things, requiring Ch. Johnson, administrator of Carter B. Page, deceased, who was administrator of Mathew Toler, deceased, to render an account of the ^administration of said Page upon the estate of said Mathew Toler, that is to say: It is hereby declared that the court, in rendering that decree, did not intend to express any opinion upon the sufficiency or insufficiency of the voucher purporting to be a receipt of Thomas N. Walker, administrator de bonis non of Benjamin Toler, deceased, to Carter B. Page, for S3,673 65, and dated 13th June, 1822, to entitle Carter B. Page’s representative to a credit therefor in the settlement of the account to be taken under said decree; but intended to leave the questions, as to the genuineness of the voucher, its legal import and efficacy if proved, whether it purported to be a payment to T. N. Walker, as legatee or distributee of Mathew Toler, deceased, or to him as administrator de bonis non of Benjamin Toler, deceased ; and, if the latter, whether it was a payment legally valid and binding upon the legatees of B. Toler, deceased, open for the consideration and adjudication of the court below, if they should be presented in the form of exceptions to the commissioner’s report, or otherwise arise in the progress and proceedings of the cause in that court.

The other judges concurred.  