Whedbee v. Whedbee, 58 N.C. 392, 5 Jones Eq. 392 (1860)

June 1860 · Supreme Court of North Carolina

58 N.C. 392, 5 Jones Eq. 392

JAMES N. WHEDBEE against LAVINIA WHEDBEE, EXECUTRIX.

Where a guardianship was closed by a settlement, and release after the ward arrived at full age, it was Held, in analogy to the statute of limitations to an action, of account at Law, that the Court would not entertain a bill to re-open the investigation of the guardian’s accounts, on the ground of undue-influence, fraud or mistake, after three years from the closing of the trust.

Cause removed from-the Court of Equity of Perqnimons county.

The bill was brought against tlie executrix of James P. Whedbee, as the guardian of the plaintiff, for an account and-settlement. The defendant’s testator entered in as-plaintiff’s guardian in 1831, and continued in the ofiice-until, 1845, when,, the plaintiff having lately become of age, he surrendered the-estate to him. At the time of delivering up the property, the guardian took from the plaintiff a written instrument, which is as follows:

“ I, James N. Whedbee, have this day settled with James-P. Whedbee, my guardian, and have received from him all) the funds that he has received for me, as my guardian’, and I-do hereby release the said James P.. Whedbee from-all claims- and demands arising from any' obligation he may have incurred as my guardian. In testimony whereof, I have hereunto set my hand and seal.” Signed and sealed by the plaintiff in the presence of 'witnesses. The plaintiff alleges that he-was very young when this instrument was given; that it was-not done upon a full settlement and examination of the state-of the business; that the guardian was a relation-, and being; childless, he had often promised he would- make him the-sole heir to his estate, and had a will prepared- to-that effect; by which promises, and by other means, he acquired- much-influence over the plaintiff, and induced him to receive, without-question or examination, his account of the state of the guardianship, and to give the instrument above set forth; but that the same is delusive, — made without a fair exhibit of his liability, and drawn from, the plaintiff by the unfair influence which the guardian exerted over him. The bill goes on to-specify many particulars, in which the guardian rendered.himi no account, and others, wherein the account rendered him-was false, being made too small, and he prays,.that notwithstanding such partial' settlement and release, his guardian-may be forced to come to a fair account with him and pay over the funds iii full.

The defendant answered, and also pleaded the release and the length of time between the settlement and the bringing of this suit, (which was in the Spring of 1853,) and insists upon it as a bar, in analogy to the statute of limitations for a. money demand at law.

W. A. Moore and Jordan, for the plaintiff.

Johnson, for the defendant.

Manly, J.

This is a bill filed by the complai|$£ni; against the executrix and executor of his former guardian, for'anífc-,; count and settlement of the guardianship. It was filed nine years after the ward had arrived at full age, and eight years after he had had a settlement with his guardian, payment in full according to the account then rendered and a release.

We think it was too late to 'demand a readjustment of the guardian accounts.

A release, taken by a guardian from his ward, upon a settlement, soon after the ward’s arrival at age, is looked upon with some suspicion in a court of Equity, and would not be regarded as conclusive, provided the -ward make his appeal to the courts in proper time. The parties to such a settlement, bear relations to one another of control and dependance, respectively, which make it unfit that it should be conclusive. But it would be equally hard, on the other hand, after the guardian had tendered and made a prompt settlement, that there should be a right in Equity indefinite in time, to call him into court and re-open the accounts. We think that time must be limited, and as a bill for an account is similar to, and in many respects, a substitute for the old action of account, we limit the time to three years from the period when the trust was closed.

So much has been said recently in our reported cases upon the effect of time on closed and unclosed trusts respectively, that I deem it unnecessary to repeat it here, further than to say it may now be considered as a settled general rule with respect to closed trusts, that they are subject to the statutory and common law presumptions and to the statute of limitations, which the class of unclosed trusts is not; Falls v. Torrence, 4 Hawks 412; Bird v. Graham, 1 Ire. Eq. 196; Davis v. Cotten, 2 Jones’ Eq. 430; West v. Sloan, 3 Jones’ Eq. 102; Oldham v. Oldham, ante 89.

We are of opinion, therefore, that the equitable right remaining in complainant after the settlement in 1845, was' barred by the lapse of three years in analogy to the bar to the action of account.

Pee Oüeiam, Bill dismissed with costs.