Opinion
(December Term, 1847.)
Where a settlement was made between the legatees and executor, in which settlement no interest was computed, and the legatees received the principal, they cannot afterwards be allowed to rectify the settlement as to the interest, unless they show that the interest was omitted in the settlement, either through mistake or accident, or fraud and imposition — especially after the lapse of several years.
PETITION in this Court to rehear an interlocutory order.
Kerr for plaintiffs.
Morehead for defendants.
James Matthews by his last will devised as follows: "Also, I will at my death that all my movable property shall be sold and the money arising from such sale shall, after the payment of all my lawful debts, be divided between Tandy Matthews, Betsy James, and John Matthews; but what share shall be coming to Betsy James shall be paid to her children when of age." There is a similar bequest of all the money due him. The plaintiffs are the children of Betsy James, and all of them, as they arrived of age, received, as they state in the bill, the principal of the money due them from Tandy Matthews, who was the acting executor; and that he refused to pay them any interest. The bill is to recover the interest.
The defendant alleges that he has settled with and paid over to the plaintiffs their respective shares, some of them more than twenty years ago; and during all the long time he was making his different settlements no dissatisfaction was expressed at his not paying interest, nor was any claim for interest set up, and he relies upon the lapse of (29) time, and the settlements, as a bar to an account.
The case was set for hearing on the bill and answer, and an account was decreed by the preceding judge in the court below, as to the interest. The cause was then brought here, and a petition is filed to rehear that interlocutory decree.
Lapse of time is, in itself, no bar to the demands of an account, by next of kin, against an administrator; but it may raise a presumption that an account has been rendered and satisfaction made, or the claim to satisfaction abandoned, and the farthest this Court has gone in raising such presumption is the intervention of twenty years between the time when the settlement ought to have been made and the filing of the bill. Bird v. Graham, 36 N.C. 198. In this case it is admitted that a settlement has taken place and the principal paid. Twenty years, however, have not, as far as we can see, passed since the time when the legacies were payable. The answer states that the payments were made to some more than twenty, but which of them he does not state, and it was to be paid as they arrived at age, and those respective periods have not been set forth by either party. The bill does not seek to set aside the settlement generally, but that it may be rectified as to the matter of interest. To entitle themselves to the relief they seek the plaintiffs must show that the interest was omitted in the settlement either through mistake, or accident, or fraud and imposition. None of these reasons exist in this case, because the plaintiffs show they knew their rights, and all the facts, and were perfectly aware of the (30) omission to allow interest. Compton v. Green, 17 N.C. 96. They state that at the settlement "the defendant paid them a part of their respective legacies, alleging that was the full amount of the principal money for division, and refused to account for any interest whatever." With this knowledge before them, and without any allegation of fraud, accident, or mistake, or any reason shown why he did so settle, they cannot be permitted now, after receiving the principal as all that was due to them, and after the length of time that has elapsed, to come into court and ask an account of the interest, which was but an incident, at best, to the principal demand. We consider them concluded by the settlements made.
The interlocutory order was erroneously made, and must be reversed, and the bill
PER CURIAM. Dismissed with costs.
Cited: Grant v. Hughes, 96 N.C. 191.
(31)