
    Burton & Wife vs. Dickinson and others.
    
    When an administrator’s account is settled by commissioners appointed by the court, it will not be opened for alleged mistakes and errors in distributing- the property, after the expiration of twelve years from the time the supposed errors or mistakes were discovered : a court of equity will not relieve’ after such a lapse oí time.
    In the settlement and distribution of an intestate’s estate, the property ought to be valued at its worth at the time of the death.
    Property advanced should be valued at its worth at the time when it was advanced.
    A settlement of an account made by commissioners appointed by the court, is a settled or stated account, &c.
    in 1809 Hardy Murfree died inféstate, possessed of a large real and personal estate, to descend and be distributed amongst his seven children. Complainant Burton married one of the distributees, who is a co-plaintiff, in 1814. Defendant Dickinson also married one of the daughters of Hardy Murfree in 1801. He was appointed the administrator of Mr. Murfree’s estate in Tennessee, and William H. Murfree was appointed administrator in North Carolina. Defendants Dickinson and Isaac Hilliard, who had also married a daughter of the intestate, were largely advanced by the intestate in 1801, shortly after their respective marriages. William H. Murfree, another defendant, had also been considerably advanced. In 1809, defendant Dickinson made and returned an inventory to the county court of Rutherford county. In 1814 the county court appointed commissioners to settle with him as administrator, and to distribute arid divide the property. The commissioners settled up the account and distributed the property. In the division, the property advanced was valued at its worth in 1814, (the time of the advancement.) The commissioners also, in dividing the property, valued the whole estate at its value at the time, including the increased value of the estate (arising from the increase of slaves, hire and interest,) and then distributed to each one his pro-ortion or share accordingly.
    This was the principal error complained of and char-, ged in the bill; there were others, but it is not necessary to notice them, as they were principally of a minor-character.
    When the settlement took place, the complainant Burton, was in North Carolina, (where he then lived,)but a few months before the division, he was in Tennessee, and the administrator requested him to stay until the settlement took place. This he declined; but he-appointed Matthias B. Murfree, a brother of his wife’s, and also adistributee,hisagentto receive whatever share-might be allotted to him. After allotting the negroes,- and dividing the land according to the above principle, there was $436 40 due in money, which Matthias B.
    Murfree received as agent for the complainant, and gave a receipt therefor, dated 24th August, 1814. The negroes allotted to complainant were also delivered to him, as agent.
    Shortly after the settlement, the complainant removed to Tennessee. When he was informed of the principle-upon which the settlement took place, he objected to it. The administrator told him, if he was dissatisfied to file a bill. No bill was filed by him until July 1826-about twelve years after the settlement. The court dismissed the bill, from which decree the complainants appealed to this court.
    
      G. S. Yerger and S. Anderson, for complainants.
    1st. It is insisted for complainants, that the principle upon which the property was distributed, in 1814, by the commissioners, was erroneous; that it operated very unequally, and much to the advantage of those who had been previously advanced.
    In the distribution of an intestate’s estate, the property or estate should be valued at the tibie of his death, and not at the time of distribution; otherwise those who have been advanced by the intestate in his lifetime, will enjoy the use of their advancements, without accounting for either hire or interest, and yet they would come in for their proportionate share of the increased value of the estate.
    This case illustrates the injustice of such a mode of division. Say that at the death of Mr. Murfree, his estate was worth $33,000, not including the advancements; that defendant Dickinson was advanced $7,000 in his lifetime; defendant Hilliard $5,000, and William H. Murfree $4,000. These advancements, added to the estate left, make $49,000, out of which each dis-tributee is entitled to one-seventh. Mr. Dickinson being advanced $7,000, would be entitled to nothing, he has his share; Mr. Hilliard would be entitle^ to $2,000; William H. Murfree $3,000, and the other four distrib-utees to $7,000 each. But suppose no distribution takes place for five years, the interest on the estate ($33,000,) would be $9,900; this added to the principal, makes $42,900; to which add the advancements, makes $58,940. Divide this between seven, and the share of each will be $8,420. Thus by this delay, Mr. Dickinson, who was fully advanced at the death of the testator,'gets $(1420 over his share, and enjoys the use of his advancement in the meantime; Hilliard gets $3,420, instead of $2,000, and the interest on his advancement; and William H. Murfree gets $4,420, instead of $3,000, and the interest on his advancement They thus enjoy their own shares, and get each one-seventh of the increase of the shares of the other.
    The law considers the distributive portions as vested at the time of the death. Stackpole vs. Stackpole, 4 Gow. Rep. Lovelace on Wills, 93. 3 P. W. 49. 2 P. W. 442. Garthshore vs. Chalie, 10 Yes. 13. Stapleton vs. Palmer, 4 Bro.. Ch. Rep. 490. The time allowed to the personal representatives hy the act of distributions, to settle up the estate, does not prevent the interest from vesting. That time is only allowed to settle up the estate, and thus to ascertain the quantum of interest each is entitled to. The interest is actually vested, hut the precise amount is not known, until the debts are paid and collected.
    2. The account also shows, that a. large balance was in the hands of the executors, from the time of Mr. Murfree’s death until the settlement; on this balance he ought to have been charged with interest. Stackpole vs. Stackpole, 4 Dow. Rep. 209. 1 Jac. and Walker, 39. 11 Vesey, 58. 12 Yesey, 386. 13 Vesey, 402. 1 Russel, 146.
    It is true, this item, and the not hiring out the negroes, are not charged in the bill as a specific error in the account; yet it is conceived, that as between trustee and cestui que trust, where errors are apparent upon the face of the account, it is not necessary to surcharge and falsify. 4 Vesey, 118. 5 Price’s Rep. 42.
    But lapse of time is insisted on as a bar to the claim. In the case of Stackpole vs. Stackpole, before referred to, the estate was in part distributed, and the executor retained, the balance, claiming it for himself, upwards of twenty years, when he was compelled to distribute it.
    Distributary shares are considered in the nature of specialties, and cannot he barred or presumed against under fifteen or sixteen years in this state. 3 John. Ch' Rep. 222, 223. In fact, there is no positive time fixed; each case depends upon its own circumstances, (3 John' Ch. Rep. 215) and there is no instance of the balance of a distributive share being barred in twelve years.
    In this case there was no settlement, with Col. Burton; he gave no receipt in full; there was no account stated and signed between them. He received what he conceived to be only a part of his distributive share. Pom-fit vs. Lord Windsor, 2 Vesey, 483.
    The settlement of the account by the commissioners is not even prima facie evidence against a distributee, as there was no law at that time authorizing it. 3 Hay. Rep. 124. I Russell’s Rep. 74.
    An executor or trustee cannot divest himself of the character of trustee, until he has executed or performed the trust. Chalmer vs. Bradley, I Jac. and Walker. Pomfit vs. Lord. Windsor, 2 Yesey 483.
    But the coverture of Mrs. B. removes all obstacles as to lapse of time. A distributive share does not belong to the husband until he reduces it into possession. His interest is only a qualified one until then. It is a mere chose in action, which survives to the wife, if the husband has not reduced it to possession. 5 John. Ch. Rep. 196. 3 Desau. Rep. 135. 1 Desau. Rep. 244. Shower’s Rep. 25. 1 Roper, 166, 220. In a suit for it, the wife must be a party, because it is her property until recovered by the husband, (5 John. Ch. Rep. 196;) and if the husband dies, the suit does not abate, but survives to the wife, (6 John. Ch. Rep. 132;) and if the husband dies after a decree, but before payment, it shall go to the wife, (5 John. Ch. Rep. 210;) and after decree, but before payment, the court may order the husband to make a settlement, before they will allow him to receive it, (X Desau.143: 6 John.Ch. Rep. 25: 5, John.Ch. Rep.464 1 Maddox Ch. 480,481:) unless the wife agrees he may\ have it without. ⅞ '
    The balance due of this distributive share, therefore, belongs to the wife. It is her property until the husband receives it; and inattention or laches cannot deprive her of her rights. 2 Atkins, 545. 2 Hawk. Rep.
    The disability of the wife would save the bar of the act of limitations, and the same disability will save her rights where lapse of time is relied on.
    
      F. B. Fogg, for defendants.
    The charge in the bill arises from the general statement in the inventory and account, where the notes and bonds belonging to the estate are put down as so much cash, though as it appears from the answer and the deposition of M. Murfree and other circumstances, that so far from Hick-inson having money in his hands which he used or invested for his own benefit, that he made large advances from his own moneys for the estate.
    The charge of a mistake in the principle of the distribution, will, when particularly examined, be found incorrect. The periods of distribution fixed by our laws, (see act of 1789, ch. 23, sec. 2,) is two years after the qualification of the executor or administrator. In this case, if distribution had been demanded, and bond and security offered, it could have taken place in July 1811. Yalue the advancements of Dickinson and Hilliard as they should have been valued, as of the time whén they were made, which is the correct rule, (2 Hay. 366, King and wife vs. Worsley and others, 8 Yesey, 55; Kircudbright vs. _Kircudbright, 1 Wash-, ington’s Rep. 225; Beckwith vs. Butler, 1 Maddox’s Chancery, 629; Act of 1715, ch. 64, sec. 6,) and valuing the other property to be distributed at that time, and it will be found, that a very trifling difference, if gny? would exist between what was actually, and what would then have been distributed, particularly when it is considered that complainant is only entitled to one seventh part of the whole estate, and only one fourth part of what he calls the profits or increase of the shares that would have belonged to the four young children.
    The distribution took place in August 1814.— Complainant was here in July of that year, was urged to remain and attend himself to the settlement. See M. B. Murfree’s deposition. He would not do so. Lots were drawn for the several parts. His agent received his negroes and the money, and gave a receipt for the money. In 1815, on the 17th February, he wrote a letter to Mr Dickinson, promising to send him the refunding bond, &c. In 1815, or 1816, Mr Dickinson writes to complainant, requesting him, if he was dissatisfied, to file a bill. See Matthias B. Murfree’s deposition. He neglects to do so. He acquiesces in the distribution. The negroes are all in the possession of the distributees; have become their absolute property. The trust of administration has ceased. Every one is satisfied. The vouchers of the administrator, it was no longer necessary to preserve. The witnesses who would depose to the items of the account, are many of them dead, and in 1826, twelve years after this has occurred, a bill is filed. Chancery will not entertain jurisdiction of such a bill. It affords relief to the active the diligent, those who have been imposed upon by concealed frauds, vigilantibus non dormieniibus, S/c. See Her-cy vs. Dinwoody, 4 Brown’s Ch. Cases, 257: Jones vs. Turberville, Bro. Ch. C. 114: same case, 2 Yesey, 11: Raymer vs. Peansell, 3 John. Ch. Rep. 585: 1 Maddox, 100, and cases there cited: 3 Yesey, 103: Gray vs. Winnethorpe. An old account shall not be unrav-elled, though settled upon an erroneous principle. 9 Yesey, 265. Settled account not to be set aside but for fraud, or surcharged or falsified, but for error. 2 Brown’s Chancery Cases, 62, Brownwell vs. Brown-weh. An account settled ten years before bill filed, al_ though containing gross errors, shall not be opened, but the plaintiff is at liberty to surcharge or falsify. This was a case of gross fraud. See also, 2 Brown’s Ch. Cases, 310. See also Consequa vs. Fanning, 3 John. Ch. Rep. 387: 7 John. Ch. Rep. 69: 18 Tesey, Jr. Barber vs. Barber, &c:- 19 Vesey, Jr. Foster vs. Hodgson: Jeremy on Jurisdiction of Courts of Equity, pages 504, 547: 4 Crunch, 309: 7 Cranch, 147,
    The same remarks and authorities will apply to the account with Wm. II. Murfree, which was settled and signed by the complainant himself, on the 12th March, 1817.
   Catron, Ch. J.

delivered the opinion of the court.

The first allegation in the bill charges David Dickinson, the administrator, with not having accounted for the interest he collected on bonds and notes after due, and before paid. Hardy Murfree died in 1809. Mr Dickinson administered in that year, but did not settle the administration accounts until 1814. This is not complained of, and under the circumstances could not be. Col. H. Murfree left a large estate, both real and personal. Mr Dickinson attended to that part of it situated in Tennessee, with the care a prudent man would to Ms own property, and acted in the character of guardian to the minor children to a great extent, as well as administrator of Col. Murfree. Mrs D. was the oldest daughter of Col. M. and an heir and distri-butee. That Mr Dickinson, in the management of the estate, acted with integrity of intention, is admitted in the bill; but it is alleged, he made manifest mistakes in settling the administration of accounts, to the prejudice of complainants, the wife being a distributee and heir of Col. M. That Mr Dickinson’s intentions were honest, and his business as administrator done according to Ms best judgment and impartiality, and as he believed, to the interest of all concerned, is manifest. In 1811, before the administration, and other accounts for attending to the real estate were settled, and the property real and personal divided, complainant, Burton, intermarried with one of the younger daughters in North Carolina. In that year he came to Tennessee to see to his wife’s fortune. Mr Dickinson informed him when the settlement would take place, and insisted that he should continue in Tennessee, until after the sitting of the county court, to which the returns were to be made, and be present and aid at the settlement, so that all might be satisfied. The complainant declined waiting; expressed confidence in what the other heirs and distributees might do, and appointed Matthias B. Murfree, a younger son and brother of Mrs Burton, whose interest was that of her’s in all respects, his agent to attend to the settlement and division for him. When the county court met, the returns were made, and two gentlemen (Watson and M’Connico,) selected to divide the estate, real and personal, of Col. Murfree. They examined all the accounts, fairly and honestly submitted to them by Mr Dickinson, as administrator, and as agent or guardian, so far as he had expended money and been at trouble in taking care of the real estate, which was large and valuable. They valued the negroes, put a value on the advancements to the two elder and advanced children, Mrs Dickinson and Mrs Hilliard, settled the whole matter, and divided the property. For the balance of money, set apart to Col. Burton, Mat. B. Murfree, on his behalf and as his agent, gave Mr Dickinson a receipt, dated 24th August, 1814. The amount paid over to the agent by Mr D., the administrator, was $436 40. The negroes allotted to Mrs Burton’s share were also delivered over to the agent, and received by Col. Burton. In 1816, (having received from Mr D. a copy of the accounts and division,) complainant objected to the accuracy of the account. He shortly after removed to Tennessee and resided near Mr D. and still complained. Mr D. told him all the other children were satisfied, and he had it not in his power to open the settlement; but if complainant wished to do so, to file his bill; that he, Mr D. claimed no benefit of any mistakes. Thus matters rested until July 1826, when the bill was filed. Under the circumstances, can the complainant be heard to impeach the accuracy of the settlement, because of mistakes in adjusting the administration of accounts? This court think not. There is no fraud; it is even doubtful if there were any mistakes; and were the court to open this account, it would set a precedent likely to disturb the repose of the country, and to endanger greatly the situation of the most faithful administrators. This was unquestionably a settled account within the authorities. The receipt of complainant by his agent, Mat. B. Murfree, recognized it as such, and this bill came greatly too late to call it in question, as will be seen by reference to the opinion in Clark vs. Stancil, decided at this term, and the authorities cited for defendants. 3 John. Chan. Cases, 583, &c.

The best ground on which relief is sought is, that a mistake was made in dividing the negroes. The whole were valued in 1814, when the division took place, at their worth, as well those born after Colonel Murfree’s death, as before: and those advanced to Mrs. Dickinson and Mrs. Hilliard, at what negroes of that description would be worth in 1814: deducting this from the shares of the two married daughters, or giving the unmarried children so much more, was the principle on which the division was made. It is insisted, that the negroes ought to have been valued at their worth when Colonel Mur-free died, without adding thereto the increase by births, by growth, and the value of their labor for five years, and putting this together as a common fund, and dividing of it amongst all the children, advanced and unadvanced, deducting the advancements from the allotments to the elder children.

On the other hand it is insisted, that the negroes advanced in 1799 to Mrs Dickinson, and to Mrs. Hilliard in 1801, ought to have been estimated at their worth when advanced; which mistake in complainant’s favor, would produce nearly the same result that the two errors produced, were the position of complainant correct. That both positions are correct, we have little doubt; yet it does not follow that after a lapse of nearly twelve years, the division can be set aside. For at least ten years before the hill was filed, complainant was perfectly aware of the principle the division had proceeded upon, and was then told by Mr. Dickinson, what was emphatically true, that he as administrator had no power to recall the negroes from the other distributees. He had parted with the title; all the others were completely satisfied, and refused to come to a re-division, and if a hill to set that mode aside for any mistake was necessary to the end of justice, the complainant must file it.

The division of the slaves stands on the foot of an agreement amongst the parties entitled as distributees, to which the complainant was a party, acting through his agent, Mathias B. Murfree, and it lay upon him on the discovery of the mistake promptly to file his hill, and have it rectified; it is to the vigilant equity affords relief, not to those who lie by until evidence is lost, and the situation and circumstances of the parties, and the property changed hy lapse of time.

The rule is based upon the necessities of society, to illustrate the soundness of which, hardly a better case can he supposed than the. present. The administrator had divested himself of his character of trustee; parted with all the property out of which complainant ought to have been compensated; had no power to recall it; -could in all probability at no time have sustained a bill to disturb the division in his character of administrator or distributee; and after the lapse of three years, could have been conclusively barred by the statute of limitations; and consequently, if liability rested upon him by reason of a mistake in the execution of his trust, the compensation must come from his own means. In such a case, equity can afford no relief. 4 Bro. C. C. 257. 2 Atk. 610. 3 Johns. C. C. 386, and Hay vs. Bogart, 2 Johnson’s Cases, 432.

As to the defendant William H. Murfree, there is no proof that he did not settle with complainant strictly as required by law, and it is proved, to the satisfaction of complainant when the settlement was made, and for years afterwards; but were these slight mistakes discoverable, it is too late for complainant to sustain the bill; which we order to be dismissed in affirmance of the decree below.

Decree affirmed.  