Opinion
(June Term, 1829.)
1. The lapse of thirty years is no bar to an account of an administration. But where a legatee had given a bond to exonerate the executor from his office as if he had never qualified, this was held to be evidence of a settlement, and, unexplained, to be a bar to an account.
2. Quere: Is not such a bond a release?
From PERQUIMANS. In this case the bill was filed for an account of the estate of one Granberry Sutton, the father of the plaintiff Martha.
Kinney for plaintiffs. (340)
Gaston for defendant.
It appeared from the pleadings that Granberry Sutton died in 1794, having made a will, whereof he appointed the immediate testator of the defendant executor; that by his will he left to his mother, (339) Sarah Sutton, an annuity of £ 15 for her life, and all the rest of his property to his daughter, then an infant of tender years; that before her arrival at full age, viz., in 1805, she married one John Sutton; that he died after her arrival at full age, and that she continued a widow for two years, when she married the plaintiff Ives, in 1812; that James Sumner died in 1823, having all his life lived in the immediate vicinity of both the husbands of the plaintiff Martha; was a man of property, and abundantly able to pay all his debts; and that more than thirty years had elapsed from the death of Granberry Sutton to the filing of this bill, during which time no claim of the kind now asserted had ever been urged by the plaintiff Martha or either of her husbands.
The defendant in his answer relied not only upon the lapse of time as a bar to an account, but set forth the following instrument, which was proved to have been executed by the first husband of the plaintiff Martha, and insisted that in law it was a release, and of course a bar to the right of the plaintiffs to call for an account:
"Know all men, that I, John Sutton, George Sutton, and James Whedbee, of, etc., are held and firmly bound unto James Sumner, of, etc., in the just and full sum of ten thousand pounds, to be paid, etc., 30 December, 1805.
"The condition of the above obligation is such that if the above bounden John Sutton, his heirs, etc., do well and truly pay unto Sarah Sutton [the mother of the testator, Granberry Sutton] the just sum of fifteen pounds a year during her natural life, and do release, exonerate, and discharge in every way, manner and form the said James Sumner, his heirs, executors, and administrators, from the executorship to the will of Granberry Sutton, deceased, in as full and ample a manner as if he had never qualified thereto, then this obligation to be void."
It is admitted by both the plaintiff and defendant that James Sumner, the executor, during his life, and at his death, which happened in 1823, had an ample estate, and fully sufficient to pay any demand which plaintiffs might have against him; that plaintiff Martha was a feme sole and of full age in 1812; that this suit was not brought until 1825. After such a lapse of time, although it forms no bar to the suit, it may be apprehended that exact justice could not be done if the parties were to go into a settlement of their accounts. This, however, must be done if the bond introduced by the defendant does not interpose a sufficient bar.
(341) This bond was executed in 1805, by John Sutton, the first husband of the plaintiff Martha, about eight or nine years after the death of the testator. It is given in the sum of £ 10,000, conditioned on the part of John Sutton "to release, exonerate, and discharge in every way, manner and form James Sumner, his heirs, executors, and administrators, from the executorship to the will of Granberry Sutton, deceased, in as full and ample a manner as if he had never qualified thereto." It must be understood from this strong language that a settlement had taken place between the parties. The bond must be taken as proof of it, in the absence of any explanatory evidence. It is true that the bond has also a condition that John Sutton shall pay to Sarah Sutton, the mother of Granberry, the sum of £ 15 a year during her natural life. But this is a distinct stipulation from the preceding one, and a distinct breach might be assigned for the nonperformance of either. It cannot by any fair construction of the bond be believed that it was given to guard the executor James from the demand only of Sarah Sutton. It was also given to guard him from the demand of the obligor, John Sutton, husband of the plaintiff Martha.
PER CURIAM. Bill dismissed, with costs.
Cited: Shearin v. Eaton, 37 N.C. 285.