Sprinkle v. . Holton

CoNNOR, J., after stating the case: There can be no doubt that, under the terms of the will of Thomas J. Holton, the executor was empowered to sell all the real estate; hence the sale of the lot in controversy to Rachel Holton was valid, and constituted, upon the execution of the note, a binding contract, whereby she acquired an interest in the property enti *263 tling ber to call upon tbe executor for a deed by paying tbe note. It is equally clear tbat tbe note in tbe bands of tbe executor constituted an asset or fund, to be distributed in accordance with tbe will of Holton. Tbe interest of tbe plaintiffs and defendants, devisees and legatees of Holton, in tbe lot was merged into tbe note. Only by a cancellation of tbe contract and of tbe note could their interest in tbe property be reinstated; tbis could only be accomplished with tbe consent of all parties in interest. Tbe executor was in tbe line of bis duty wben be obtained judgment on the note. His next step in tbe settlement of tbe estate was to subject tbe lot to sale for tbe purpose of paying tbe judgment. If be bad done so, it is manifest, from tbe state of bis account, tbat it would have been bis duty to pay tbe proceeds to the younger children, tbe defendants herein, who bad received no part of their share of tbe estate. Any surplus from tbe sale of tbe lot would have belonged to Mrs. Rachel Holton. In tbis condition of tbe estate, tbe executor, tbe widow and tbe four younger children, acting under tbe advice of counsel, made tbe arrangement pursuant to which tbe deed was executed. We do not see bow the plaintiffs can justly complain of tbe terms upon which tbis deed was executed or tbe settlement made, or bow any wrong was done them, entitling them to have tbe deed invalidated. If tbe executor bad received from Rachel Holton tbe money and immediately paid it to defendants and she had conveyed to them an estate in fee, reserving a life estate, there can be no doubt that their title would have been perfect. We do not perceive any substantial difference in tbe two transactions. It is conceded tbat tbe executor is solvent, and if by tbe arrangement made be paid to defendants a larger amount than they were entitled to, be, and not tbe defendants, is liable to plaintiffs. It appears from tbe record, not only tbat tbe executor is solvent, but tbat, at tbe time tbe deed of 1 October, 1872, was made, there was other property of tbe estate from which tbe plaintiffs could have re *264 ceived any sum to which they might have shown themselves entitled by reason of the payment to defendants of the amount of the judgment against Rachel Holton. It also appears that, after the death of Mrs. Holton, the reversion in the dower was sold, upon petition of plaintiffs and defendants, for $14,000, and, by consent of all parties, divided equally. While, in the view which we take of the case, all of this is immaterial, it is manifest that, if it be conceded that by the execution of the deed the defendants received more than their fair share of the estate, the plaintiffs have no equitable ground upon which to cancel the deed. ' They suggest that the sums paid them in Confederate money should be “scaled” and they be charged with the amount which it was worth in gold. While no case is cited in which this Court has held that such is the principle upon which the estate should be settled, if it be conceded that the plaintiffs’ view is correct, and if it be further conceded that the plaintiffs have any cause of action against defendants, it certainly could not extend to the cancellation of the deed of 1 October, 1812. The only possible liability to which they could be subjected would be to pay to plaintiffs an amount which, together with what they have received otherwise, would make an equal distribution. It is well settled that a legatee who has received no more than his legal share of the estate is not liable to account to another legatee who, by reason of a devastavit of the executor, fails to receive his full share. His remedy is against the executor. The one who receives but what belonged to him has done the other no wrong. There is a line of cases which hold that if, by mistake as to the condition of the estate, the executor pay to one legatee more than his share, or if by some unforeseen cause for which the executor is not responsible and could not have reasonably anticipated, it turns out upon a final settlement that he has overpaid some of the legatees, he, after making good to the other legatees their share, may have relief in equity against the overpaid legatees. But the court will *265 grant such relief only when it clearly appears that the executor was unable to foresee the “peculiar circumstances” by reason of which the mistake occurred. Alexander v. Fox, 55 N. C., 106; Lambert v. Hobson, 56 N. C., 424. It may be that, if the executor is insolvent and the legatee has suffered loss under circumstances which would have entitled the executor to relief in equity, such legatee would be subrogated to the rights of the executor. No such condition is shown here, for the reason that there were ample resources of the estate from which equality could have been secured, and that, with the concurrence of the plaintiffs, they have been distributed. While not technically an estoppel, the conduct of the plaintiffs in this respect is very cogent evidence of acquiescence in the settlement made by the executor with the defendants, and a recognition of the fact that, as understood by him, the execution of the deed was a final settlement. The deed setting forth the terms of the settlement was recorded 3 January, 1873. Thirty-three years elapsed during which no action was taken by plaintiffs. During this time the widow and the defendants were in possession of the property, making valuable improvements upon it, executing mortgages and in all respects treating it as their property, in a manner consistent with the terms of the deed and inconsistent with any trust relation. The fact that the widow had a life estate did not in any manner affect plaintiffs’ right to sue. If the deed was invalid, she had no better right under it than the defendants. The authorities cited by counsel fully sustain their position! that the defendants took and held with notice of the provisions of the will, but they took and held in accordance with the will. If executing the deed was a breach of trust by Dr. Hutchison, the cause of action therefor accrued to plaintiffs at once. They had full notice of what he had done, and for thirty-three years acquiesced in it. ' To permit them now, after the property has been improved by defendants and increased in value, to attach a trust to the legal title *266 and set aside tbe settlement, would be doing violence to an unbroken current of decided cases' and sound equitable principles. We Have no doubt, after a careful inspection of tbe record, that Dr. Hutchison, under tbe advice of gentlemen eminent at tbe bar for learning and of bigli personal and professional position, bas discharged bis duty and executed tbe trust reposed in him with fidelity. Tbe settlement was made without the slightest suggestion of a breach of trust, and put upon tbe public records. Tbe plaintiffs, with full knowledge of it, by their silence for a third of a century, recognized its justice. Tbe security of property rights, tbe peace of families and tbe public welfare demand that there must be an end of litigation. Courts of equity have always wisely refused to entertain “stale claims.” Harrison v. Hargrove, 109 N. C., 346. Tbe judgment of nonsuit must be Affirmed.