Hays v. Freshwater , 47 W. Va. 217 ( 1899 )

English, Judge,

On the 27th day of April, 1878, James M. Campbell, of Butler, Hancock County, West Virginia, made his last will and testament, and appointed his brother, George W. Campbell, and his son-in-law, E. A. Freshwater, executors thereof, and on December 1, 1880, he added a codicil thereto. After the death of said James M. Campbell, said executors qualified, and gave bond, and took upon themselves the duties attending the administration of said estate, and continued to act as such executors jointly until some time in the year 1890, when said George W. Campbell died, and R. H. Campbell and Howard N. Cámpbell were appointed and qualified as his executors. After the death of said George W. Campbell, nearly all of the business connected with the settlement of the estate of said James Campbell was transacted by said E. A. Freshwater, surviving executor of said last will and testament. On the' 13th of December, 1883, said George W. Campbell and E. A. Freshwater made a settlement of their accounts as such executors before a commissioner of the county court of Hancock County, finding a balance due said estate as- of September 17, 1883, of one thousand, three hundred and forty dollars and eighteen cents, which report was unex-cepted to, and was, on the 4th day of February, 1884, confirmed by the county court of said county. Said executors again made a settlement of their accounts before the same commissioner on the 16th day of June, 1888, who found a balance ' due said executors of five dollars and seveny-four cents. On the first Monday in October, 1894, Virginia B. Hays, a daughter and legatee of said James M. Campbell, filed her4 bill in the circuit court of Hancock County, having for its object a settlement of the accounts of E. A. Freshwater as surviving executor of said James M. Campbell, and of R. H. and Howard N. Campbell, executors of the last will and testaunent of George W. Campbell, deceased, to surcharge and falsify the accounts of E. A. Freshwater and Georgn W. Campbell which had been settled before a commissioner, and to recover such balance as might be found in the hands of the said surviving executor, R. H. and Howard N. Campbell,.executors ot said George W. Campbell, deceased, and seeking a construction of said will. To this bill the appellant E. A.' Freshwater, as executor of James M. Campbell, filed his demurrer, claiming therein that so much of said bill as sought to surcharge and falsify said first settlement of accounts made by said executors was barred by the laches of the plaintiff, more than ten years having elapsed between the date of said settlement and the commencement of this suit; and also demurred to so much of said bill as relates to said second settlement, because more than six years had elapsed between the date of said second settlement and the commencement of this suit; and for other reasons assigned, — which demurrer was overruled, and the defendants were ruled to answer. • On the Sth of December, 1874, said Freshwater, executor, as aforesaid, filed his separate answer to complainant’s bill, claiming therein that the plaintiff was barred by her laches from surcharging and falsifying either of said accounts settled as aforesaid, and assigned other reasons why the plaintiff’s bill could not be maintained, and put in issue the material allegations of the plaintiff’s bill. R. H. and Howard N. Campbell executors of George W. Campbell, also filed their answer, relying on the laches of the plaintiff, stating various reasons ■’ why the plaintiff’s bill could not be maintained, and putting in issue the material allegations of the plaintiff’s bill. On the 24th of July, 1895, the cause was heard upon the bill and answers together with the papers theretofore filed. ■ The court, proceeding to construe said will, held that the plaintiff was entitled to have the accounts of E. A. Freshwater and George W. Campbell, executors, and the accounts of E. A. Freshwater, surviving executor, restated and settled to conform to the construction placed upon said will by said decree, and directed that the cause be referred to a commissioner of the court to restate and settle said accounts, with leave to either party to surcharge and falsify the settlements of the accounts as already made by said executors, in pursuance of this decree an account was taken, and reported to the court, which was excepted to by said executors for various reasons, and on the 11th of April, 1896, a decree was entered in said cause sustaining some of the exceptions to said report and overruling others, ascertained the sums which it considered properly chargeable to the devisees of James M. Campbell as advancements, and also the amount which the plaintiff, Virginia B. Hays, was entitled to as a devisee of James M. Campbell; also found the balance in the hands of E. A. Freshwater, executor, on November, 1893, was two thous- and one hundred and forty dollars and seventy-five cents, and directed that, so far as the said R, H. and Howard N. Campbell, executors, as aforesaid, should pay the amounts therein recovered by Virginia B. Hays and Hannah G. Miller, or either of them, they, the said executors of George W. Campbell, should be reimbursed, and recover against said E. A. Freshwater, not exceeding- the sum of two thousand one hundred and forty dollars and seventy-eight cents, and interest thereon from the 15th of November, 1893; and from this decree the defendant Freshwater, executor, etc., obtained this appeal.

The first error assigned and relied upon . by the appellant is claimed to have been in the action of the court in its decree of November 15, 1894, overruling appellant’s demurrer to the plaintiff’s bill: First, because the settlement made in 1883 by appellant and his co-executor was regular, and regularly confirmed, and, having remained unchallenged for more than ten jmars before the institution of this suit, plaintiff was barred by her laches from surcharge or falsification of any part of it; secondly, for the reason that, their second settlement, having- been made in June, 1888, more than six years before the commencement of this suit, a similar bar is raised.' Our Code (c. 87, s. 22), speaking of the report of settlements of accounts of fiduciaries, says: “The report to the extent to which it may be so confirmed shall be taken to be correct, except so far as the same may in a suit in proper time be surcharged or falsified.” Now, it appears, as we have seen, that the executors of the estate of James M. Campbell, deceased, settled their accounts as such before a commissioner on the 13th of December, 1883, which settlement was confirmed by the county court December 23, 1883, and this suit was not instituted until October, 1894. This first settlement was unexcepted to, and dealt with all the items that are now sought to be surcharged and falsified. A second,settlement was made, as before stated, on June 16, 1888, which was retained by the commissioner for ten days lor exceptions, but which remained unexcepted to." The balance found due from said executor» on the first settlement was one thousand three hundred and forty dollars and eighteen cents. In the second settlement the executors are charged’with this amount, and the interest collected at different times on three thousand dollars, invested for the benefit of the widow of said Jam.es M. Campbell, and the interest on nine hundred and ninety-nine dollars and thirty-nine cents used by E. A. Freshwater, one of the executors, for three years and four months; and they were credited with certain amounts disbursed by them, ascertaining a balance in favor of said executors of five dollars and seventy-four cents. Now, the only criticism made upon this -second settlement of accounts appears to be "that the same was not made in the time required by law, and for that reason said executors should not be allowed commissions; and because it does not charge the proper balance carried over from the former settlement, which balance should be corrected in the manner indicated in the objections raised to the first settlement; so that it appears 'that the entire effort to' surcharge and falsify said accounts was directed against the items charged in the first settlement, with the , exception of the objection to the commissions charged in the second settlement on the ground that the settlements were not made in time. Was this suit instituted in time to raise these questions? It has become a maxim that equity favors the vigilant, and looks with discountenance upon stale demands, and it has been-frequently held that long delay, and sometimes a delay less than the period of the statute of limitations, will be treated as laches sufficient to deny the aid of equity. As was said by Lord Camden in Smith v. Clay, 3 Brown, Ch. 640, note: “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, :good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced.” So, in the case of Pusey v. Gardner, 21 W. Va. 470, this Court held (Syl., point 6) that: “Even where there is no absolute bar from lapse of time or by the statute of limitations, it is a principle of courts of equity'not to take cognizance of an equitable claim after a great lapse of time; and where, from the death of parties, and witnesses, there is danger of doing injustice, and there can no longer be a safe determination of the controversy.” And in point 7: “Lapse of time, when it does not operate as a positive statutory bar, operates, in equity, as an evidence of assent, acquiescence, or waiver.” See, also, Bland v. Stewart, 35 W. Va. 518, (14 S. E. 215); and Bill v. Schilling, 39 W. Va. 108, (19 S. E. 514). In the case of Cranmer v. McSwords, 24 W. Va. 595, this Court held that: “In a suit in equity to enforce a puiely equitable demand, the defense of the statute of limitations can have no application, of itself or by analogy, to any limitation in courts of law. Such cases must be determined by courts of equity upon rules and principles of their own. While in such cases laches and lapse of time are elements which cannot be safely disregarded, they are not always the most important considerations. Where the lapse of time is less than twenty years, the most important considerations in support of this defense generally are: First, the death of the parties to the original transaction to be investigated, or the intervention of the rights of third persons; second, the loss of evidence when the transactions are complicated so as to render it difficult, if not impossible, to do justice,” etc. In the case under consideration more than ten years had elapsed between the date of the confirmation of the first settlement and the institution of this suit, and more than six had elapsed since the last settlement was made before the suit was brought. One of the executors had died, and the suit had to be defended by his executors, who were necessarily unacquainted with many of the transactions. Under, the provisions of the will, as understood by the executors, it appears they proceeded to administer the estate without reference to the three thousand dollars, directed to be loaned out and the interest applied to the support of the widow, the appellee herself receiving a considerable portion thereof, so far as appears, without objection, and, after acquiescing in the distribution thus made by the executors for so man}' years, she files her bill, praying another and different distribution, at variance with the settlements made by said executors, when they were both in life.