Ives v. Sumner, 16 N.C. 338, 1 Dev. Eq. 338 (1829)

June 1829 · Supreme Court of North Carolina

16 N.C. 338, 1 Dev. Eq. 338

Jesse Ives and Martha his wife v. Seth Sumner ex’r. of James Sumner,

From Perquimons.

The lapse of thirty years, is no bar to an account of an administration. But where a legatee had given a bond to exonerate the executor from his office as if he had never qualified, this was held to be evidence of a settlement, and, unexplained, to be a bar to an account.

Q.u ? Is not such a bond a release.

In this case the bill was filed for an account of the estate of one Granberry Sutton, the father of the Plaintiff Martha.

It appeared from the pleadings, that Granberry Sut-fyn died in the year 1794, having made a will, whereof lie appointed the immediate testator of the Defendant, executor. That by his will, he left to his mother Sarah Sutton, an annuity of fifteen pounds for her life, and all the rest of Ids property to his daughter, then an infant of tender years. That before her arrival at full age, viz.' in the year 1805, she marró d one John Sutton — that he died after her arrival at full age, and that she continued a widow for two years, when she married the Plaintiff Joes ¡ü 18S2. That James Sumner died in the year 1823,having all his life lived in the immediate vicinity of both the husbands of the Plaintiff Martha — was a man of property, and abundantly able to pay all bis debts — -and that more than thirty years had elapsed from the death of Granbirry Sutton, to the filing of this hill — during which time, no claim of the kind now asserted, had ever been urged by the Plain tiif Martha, or either of her husbands.

The Defendant in his answer, relied not ottiy upon the lapse of time as a bar to an account, but set forth the following instrument which was proved to have been executed by the first husband of the Plaintiff Martha, and Insisted that in law it was a release, and of course a bar to the right of the Plaintiffs to call for an account.

"Know all men that I John Sutton, George Sutton and James fVheábee, of &c. are held ami firmly hound unto James Sumner of &r. in the just and full sum of ten thousand pounds, to he paid &c. December 30, A. D. 1805.”

The condition of the above, obligation is such, that if the above buunden John Sutton, his heirs, &c. do well and truly pay unto Sarah Sutton, (the mother of the testator Granberry Sutton,') the just sum of fifteen pounds a year during tier natural life, and do release, exonerate and discharge in every way, manner and form, the said James Sumner, his heirs, executors and administrators, from the executorship to the will of Granbernj Sutton, deceased, in as full and ample, a manner as if he had ne - ver qualified thereto, then this obligation to be void.

Kinney, for the Plaintiffs,

contended, that the ’apse of time formed no bar, as the trust was express | besides which, that it was explained by the infancy and cover-ture. To this point, tie cited Tate v. Greenlee, (2 Hawks 486,) and Falls v. Torrance, (4 Bo. 412.) He argued that the bond could not be construed to be a release, and if it was taken as a release, that the general words of it were to be restrained to the particular purpose for which it was given, viz, to secure the annuity to the mother “, for this he cited Liverpool Water Works v. Mkmson, (G East. 507,) — Governor v. Matlock, Banner v. McMurray, (Ante 1 vol. 214 & 218,) and Knight v. Cole, (Shower's Rep. 150.)

Gaston, for the Defendant,

insisted that the bond a mounted to a release — that this was proved by the amount of the condition, as well as by its terms, and the time that had elapsed since its execution. For this he cited Cuyler v. Cuyler, (2 John. Rep. 186,) Deux v. Jeffries, (Cro. Eli*. 352,) Smith v. Mapléback, (l T. 11. 446,) 2 Sand. 48, a.

Upon the authority of Petty v. Harman, (ante 191,) he argued, that the execution of the bond closed the trust between the parties, and from that period, the effect of time operated as a bar.

Hall, Judge.

— It is admitted by both the Plaintiff and Defendant, that James Sumner, the executor, during his life, and at his death, which happened A. D. 1823, had an ample estate, and fully sufficient to pay any demand which Plaintiffs might have against him; that Plaintiff Martha was a feme sole and of full age, A. D„ 1812 j that this suit was not brought until the year 1825, After such a lapse of time, although it forms no bar to the suit, it may be apprehended that exact justice couM not be done, if the parties were to go into a settlement of their accounts. This however must be done, if the bond introduced by the Defendant does not interpose a sufficient bar;

Tins l*oncl was executed A. D. 1805, by John Sntton, iho first husband of the Plaintiff Martha, about eight our Bine years after the death of the testator, it is given in the sum of £10,000, conditioned on the part of John Sut-Ion ei to release, exonerate, and discharge in every way, manner and form, James Sumner, his heirs, executors and administrators from the exeeiitorsíisp to the will of Granbury Sutton deceased, in as full and ample a manner as if he liad never qualified thereto.” it must be understood from this strong language, that a settlement; had taken place between the parlies, the bond must be taken as proof of it, in the absence of any explanatory evidence. It is true that the bond has also a condition, that John Sutton shall pay to Sarah Sutton, the mother of Granbury, the sum of £15 a year during her natural life. .But this is a distinct stipulation from the preceding one, and a distinct breach might be assigned for the ncri= performance of either, ft cannot by any fair construe turn of the bond be believed, that it was given to guard the executor James from the demand only of Sarah Sul • ton. It was also given to guard him from the demand of the obligor John Sutton, husband of the Plaintiff Marthfí-„

Per Curiam.

-Let the bill be dismissed with costs.