Tate's Ex'or v. Jones

Buchanan, J., delivered the opinion of the court. John iVIcOready died in the year 1862 testate. His son, Wil [545] liam J. McCready,. one of the executors named in tfie will, qualified as sucfi in November of that year. In tfie year 1871 fie refused to give additional security, and fiis powers as executor were revoked. M. B. Tate was appointed administrator of tfie unadministered estate, with tfie will annexed. Neither tfie executor nor tfie administrator de bonis non returned an inventory of tfie assets which came to their possession or knowledge, nor did either of them lay before tfie commissioner of accounts a statement of fiis receipts for any year, or cause a settlement of fiis accounts to be made, as required by -chapter 121 of tfie Code. Tfie executor died in tfie year 1877, and tfie administrator de bonis non in tfie year 1892. This suit was instituted in tfie year 1895 by the assignee of one of tfie residuary legatees, for a settlement of tfie accounts of the administrator. Tfie defense relied on is the long and unexplained delay of tfie complainant in asserting his claim, which was acquired by assignment from Thomas E. McCready, one of tfie residuary legatees, in tfie year 1874. Neither in tfie complainant’s bill, nor in fiis proof, is there any explanation furnished of fiis great delay in bringing suit. "Whilst it is true that tfie administrator returned no inventory, and made no settlement of fiis accounts before tfie commissioner of accounts, it seems that fie had some kind of a settlement, or accounting, with tfie residuary legatees, in tfie year 1874 or 1875. In August, 1873, William J. McCready, tfie late executor, assigned all fiis interest in tfie personal estate of tfie testator, which had, or would, come to tfie hands of the administrator de bonis non for administration, to M. McCormick, and on tfie 4tfi of September, 1874, McCormick executed a receipt to tfie administrator in full settlement of that interest in tfie testator’s estate. On tfie 29tfi day of August, 1874, W. B. McCready, one of tfie residuary legatees, gave tfie administrator a receipt in full of tfie interest which fie took under tfie will, and on tfie 2d day [546] •of September following lie executed as assignee of his brother, ■John L. McOready, another residuary legatee, a receipt to the administrator, in full settlement of that interest. On the 26th day of August, 1875, Thomas 3T. McOready, tlio other residuary legatee, and the party under whom the complainant claims, executed a receipt to the administrator, in full of his interest in the estate. The genuineness of this receipt is disputed by the complainant. Subsequent to the date of those receipts, the administrator collected more than three hundred dollars on judgments rendered in his favor as administrator before the receipts were given. The receipts being in full of all the interests which the parties giving them had in the testator’s estate, the presumption is that the amounts due on those judgments were embraced in the settlement or calculation made when the receipts were given. That presumption, however, is only prima facie, and in a case like this would be more easily rebutted than where the party taking the receipt did not occupy a fiduciary relation. There is nothing, however, in this case'tending to rebut that presumption. After the execution of those receipts, and until the administrator’s death, a period of seventeen or eighteen years, all the parties in interest seem to have treated the accounts of the administrator as settled, so far as their interests were concerned. After the administrator’s death, and until the institution of this suit, no claim was made against his estate on that aceoupt, by any of the parties except the complainant, and during the progress of the cause none of the parties in whose favor the decree was rendered appeared, so far as the record shows, and claimed that anything was due them, or that the receipts in full did not include all their «interests in the testator’s •personal estate. In December, 1892, within a few months after the administrator’s death, the complainant asserted his claim, and in the year 1895, as before stated, instituted this suit. [547] Although, the complainant became the assignee of the claim now asserted in the year 1874, it does not appear that he ever notified the administrator of i'ts assignment to him, or made any demand upon him, or sought a settlement of his accounts as administrator. In August, 1875, neaidy a year after the complainant became the assignee of Thomas T. McCready’s legacy, the administrator paid McOready a small sum and took his receipt in full for his interest in the estate. In the year 1891 the administrator and the complainant had a. settlement, in which a judgment in favor of Tate as administrator of the testator’s estate against the complainant, and the private dealings between them, were settled, yet it clearly appears that at that time no mention was made of the claim now .asserted. As before stated, the complainant, neither in his pleadings nor his proof, gives any explanation for his long delay in asserting his claim. In the case of Covington v. Griffin’s Adm’r, ante page 124, this court, in discussing the question of laches, held, upon the authorities quoted, that “reasonable diligence” was as essential to the granting of relief in equity as conscience and good faith. It cannot be said that there has bqen reasonable diligence in this case. The complainant delayed asserting his claim (notwithstanding the receipts in full had been given to the administrator twenty years before, of which he must have had notice) until the original transaction out of which it arose had become ■obscure by time, parties had died, and evidence had probably been lost, so that it would, be impossible now, with any degree of certainty, to do justice between the parties. The decree appealed from must, therefore, be reversed, and the complainant’s bill dismissed. Reversed.