Gibboney's Ex'x v. Kent

Fauntleroy, J., delivered the opinion of the court. The record discloses the following case: In the year 1858,. Jacob Kent, of the county of Montgomery, in- Virginia, died seized of a large landed estate, and possessed of large personal property, and left no will. On the 8th of June, 1858, at the request of the children of the said Jacob Kent, who were entitled as heirs and distributees of his estate, Robert Gibboney qualified as administrator of the estate of the said intestate. The personal assets which came into his hands amounted to $57,500, inclusive of slaves of the appraised value of $33,500. The indebtedness of the estate amounted to about $43,500. A public sale of most, if not all, of the said slaves was necessary; but, as some of the said children were extremely averse to a public sale of the slaves, to avert it, and, at the same time, to indemnify the administrator in the premises, it was, by common agreement, arranged between them and the administrator that each of them might take such of said slaves as he or she might select, at their appraised value; said administrator to account for them at the same value, and to sell the residue at private, instead of at public sale; and at the same time that he should be empowered, in writing, as agent of the said children and heirs of Jacob Kent, deceased, to sell all the real estate of which said Jacob Kent had died seized, either at public or private sale, on such terms as he might think best. Written papers to such effect were duly executed, and appear in the record. Accordingly, the said Gibboney, in the due exercise of his said powers, as administrator and as agent, disposed of all the property composing the estate, mainly to and among the said children, and the residue to strangers; and out of the proceeds he paid all charges and debts, and then to the several children and heirs he paid their respective shares of the surplus; and — 385 — of his said transactions he returned to the county court of Montgomery county aforesaid, four several statements or accounts, which were confirmed by the said court and ordered to be recorded. These settlements were made before commissioners duly appointed by the county court of Montgomery, and they showed balances due to the administrator and agent, while they left in the hands of the said Gibboney, as administrator, only a very few small claims due the estate, of a slow and doubtful character and trifling face value; and as agent for the sale of the lands, only the uncollected purchase money of one of the parcels of the said lands, and these small and doubtful claims, and purchase-money bonds for this parcel of land were put into the hands of one of the distributees, who resided in the immediate neighborhood of the debtors, and said settlements were considered to be in full of said Gibboney’s trust and responsibility in the premises. The said distributees were all of age at the commencement of these transactions, and all of them but one resided, in Montgomery county; and, in August, 1862, in anticipation of these said settlements, they all united in deeds to the several purchasers of the said lands, reserving liens for the unpaid purchase money. Copies of these deeds are found in the record. In April, 1867, Robert Gibboney died, testate, and the-appellant, Elizabeth G. Gibboney, qualified as executrix of his will. In April, 1878, fifteen years after the aforesaid settlements, of the administrator with the heirs and distributees, duly-recorded and supposed to be final—eighteen years after the first of them had been confirmed by the county court andl ordered to be recorded, in their immediate neighborhood—and eleven years after Robert Gibboney’s death, and when his estate had been in main distributed and mostly consumed, the bill — 386 — in this suit was filed; in which it is sought to have all the aforesaid settlements of the administrator, Robert Gibboney, with the heirs and distributees of Jacob Kent, ignored, and an account de novo of all his said transactions; and failing in that, to have the said settlements surcharged and falsified in a long list of particulars. At the May term, 1878, of the circuit court of Montgomery county, the appellant, Elizabeth G. Gibboney, executrix of the will of Robert Gibboney, deceased, filed her answer to this bill, in which she denies the amenability of her testator’s, Robert Gibboney, estate, to account further to the heirs and distributees of Jacob Kent, deceased, because of his administration of his estate and because of his agency to sell the lands; pleads ■the statute of limitations; and the finality of settlements duly made and recorded, deemed satisfactory at the time, and acquiesced in by all parties in interest, during the life of Robert Gibboney and since his death, for nearly twenty years. Along with this answer, she files exhibits and pleads the loss of records, &c., by the war, the death of her testator, and the laches of the complainants. A replication was put in to this answer, and, without any other proceeding, the court, at the December term, 1878, entered the decree of December 5th, 1878, by which it ordered an account, and referred the cause to a master commissioner, on motion of the plaintiffs, to take, settle and report the accounts of Robert Gibboney, as administrator of Jacob Kent, deceased; an account of his receipts and disbursements as' attorney in fact for the sale of the real estate of Jacob Kent’s heirs; an account of the distributive share of each of Jacob Kent’s distributees in the personal estate, and of the interest of each in the funds arising from the real estate, &c. Under this order Commissioner Wade, on 20th of November, 1879, filed his statements of the several accounts therein directed; to — 387 — which report exceptions were at once filed by both the complainants and defendant. At the hearing first had of the cause, at December term, 1882, the decree of December 5, 1882, was entered. This decree falsified the settled accounts of Robert Gibboney, both as administrator of Jacob Kent and as agent of his heirs for the sale of the lands, in several important particulars, denying to him credits and commissions which had been allowed to him, in those approved and recorded settlements, and recommitted the report of Commissioner Wade, to be reformed accordingly. On the 23d April, 1883, Commissioner Wade returned his reformed report; and on May 19th, 1883, the court, in conformity with the same, entered the decree of that date. We are of opinion that the decree of December 5th, 1878, is wholly erroneous; and, instead of directing an account, it should have dismissed the bill. The defence made by the answer, which is strictly responsive, and in every point supported by the exhibits therewith filed, satisfactorily refutes every pretence put forward in the bill, either to disregard the duly approved and recorded settlements, pleaded as probate court records; or to surcharge and falsify them in any item or particular of the least consequence to their stability, as a bar to the stale demands and laches of the complainants, and should have prevailed. The record shows that even if the recorded settlements were to be disrespected, th§ evidence taken before the commissioner and reported by him did not vary the case from that made by the answer, and showed, on the whole, a balance in favor of appellant’s testator. . In the case of Hatcher v. Hall, 77 Va. (2 Hansbrough), 576, Lewis, P., says: “ It is an inherent doctrine of courts of equity to refuse relief where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights. And the principle, — 388 — founded, as it is, upon considerations of natural justice and public policy, is always firmly enforced, especially in cases involving transactions to which immediate parties are dead.” In the case of Harrison v. Gibson, 23 Gratt. 212, Judge Staples, speaking for the court, says: “ It is a familiar doctrine of courts of equity that nothing can call forth these courts into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing. * * * The cases do not fix any period as limiting the demand for an account. If, from the delay which has taken place, it is manifest that no correct account can be rendered, that any conclusion to which the court can arrive must, at best, be conjectural, and that the original transactions have become so obscured by time and the loss of evidence, and the death of parties, as to render it difficult to do justice, the court will hot relieve the plaintiff.” Accordingly, it was held that although the time which had elapsed might not, of itself, constitute a statutory bar to the claim asserted in that case, yet, that the neglect of the parties for fourteen years to prosecute their suit,, when considered with other circumstances in the case, justified the dismissal of the plaintiff’s bill. (See Carr v. Chapman, 5 Leigh, 176, and Stamper v. Garnett, 31 Gratt. 550.) Robert Gibboney died in April, 1867, having thus survived the settlement in full with the heirs and distributees of Jacob Kent, deceased, made December 26, 1862^ by nearly five years, and the war for more than two years,' during all which time the said settlement in full with the parties themselves, which, immediately after it was so made, had been laid before a commissioner of the county court of Montgomery county, and by him returned to the said court, and there approved and ordered to be recorded, had been and remained so of record, challenging the inspection of all concerned’ in interest; and for the last — 389 — three years prior to his death, with nothing whatever to prevent, hinder, or delay their making, while Robert Gibboney was yet alive' and fairly able to defend himself, the complaint which the complainants now make in their bill, fifteen years after the death of Robert Gibboney—eighteen years from the date of his first. settlement—sixteen years after his final and full recorded settlement, and after the turmoil and destruction of four years of civil war, and the long period of durance vile which followed in its wake. For the foregoing reasons, we are of opinion that the decrees complained of are erroneous, and must be reversed and annulled, and the bill be dismissed; and it is so ordered. Decrees reversed.