The defendants Alexander and George, executors, etc., in their answer relied upon the lapse of time, and also stated that the said Adam Torrance was killed at the battle of Ramsour's Mill, in 1779; that administration on his estate was granted to his widow Ann and his son Hugh in the following year; that in 1781 the British army in their progress through this State burnt the house and all the papers therein, including the papers of the administrators; that the plaintiff's intestate, Betsy, resided with her mother, the said Ann, until she was thirty years old; that she then married one McKnight, and that neither she nor her husband ever set up any claim to an account from the said Ann of the intestate Adam Torrance's estate; and then the defendants answered specially as to the negroes. The defendant Samuel McKnight answered and disclaimed all interest in the suit. The defendant Margaret answered as to the negroes. A replication was filed to the answer and depositions taken. After several orders the case was set for hearing and sent to the Supreme Court. It is not necessary in so plain a case that the facts should be minutely detailed. We think it clear that the plaintiff cannot have an account of the estate of the intestate, Adam Torrance. He died in June, 1780, and the bill was filed in October, 1836. Between June, 1780, and February, 1781, a sale was made by the administrators; and from the depreciation of the currency of the period the personal estate, (212) including debts, may probably have amounted to something less than £ 200 specie, to be divided between the widow and eight children. In February, 1781, the British army in its march through this State passed the family residence and burned it and the furniture and books of accounts, and destroyed most *Page 171 of the other property. Elizabeth, the intestate of the plaintiff, was an infant at her father's death, and was brought up and supported by her mother, the administratrix, with whom she resided until she came of age in 1790, and afterwards until her marriage in 1801. It does not directly appear that the administrator, Hugh Torrance, or after his death that Mrs. Torrance came to an account with Elizabeth of her father's estate and paid her share of it. But there is a strong presumption of fact in the affirmative. Both parties have examined Adam Torrance, a son of the intestate Adam, and he says that from the destruction of the British and the depreciation of the paper currency the net estate, after paying debts, amounted to but little, but that for his share of that the administrator settled with him and, as he understood in the family, though he does not know it, he settled also with the other children. At all events this witness or any other does not mention ever having heard Elizabeth at any time, either before or after her marriage, complain of not having received her share to her satisfaction. But whether such a settlement actually took place or not is not very material. The plaintiff comes too late with his bill for an account, after the lapse of fifty-six years from the death of the intestate, of forty-six from the coming of age of the party entitled to the account and of thirty-five after the death of the surviving administratrix, by whom the account ought to have been rendered. These facts, not to say anything of the state of the times and the loss of papers by fire and accident, are in themselves sufficient to bar the relief sought.
The plaintiff attempted to account for this laches by representing that McKnight understood the negroes received from his mother-in-law in 1801 were given by her in absolute property and received by him in satisfaction of his wife's share of her father's estate; whereas they have been recovered by the mother's executors upon the ground that they were not (213) thus given, but only lent for life. But this does not answer the difficulty at all. In the first place, there is no evidence of any such understanding of the transaction on the part of McKnight, or that those negroes had any connection with his wife's share of her father's estate. In the next place, we must take it now that the negroes were not transferred to McKnight, either in payment or as an absolute gift to his wife, but on a loan to himself. If so, he, being a party to the transaction, could not have misunderstood its character and been thereby misled as to his rights in respect to his wife's distributive share of her father's estate. It may be possible and probable that the *Page 172 jury were mistaken in the trial at law (Torrence v. Graham, 18 N.C. 284) as to the real purpose of the mother when she put the negroes in her daughter's possession. But, if so, the effects of that error cannot be evaded in the method here adopted. The transaction was altogether independent of her duty to account with the next of kin of her late husband and intestate. The plaintiff is not, therefore, entitled to any relief in respect to the estate of Adam Torrance, deceased; and his bill, so far as it seeks the same, must be dismissed with costs.
The bill likewise alleges that the will of Mrs. Torrance does not dispose of the negroes, whose value has been recovered in the action of trover from this plaintiff, by her executors, and that the intestate Elizabeth, who survived her mother, is entitled to a share thereof as one of her next of kin, and prays an account in respect thereof also. To this the defendants do not make any objection on the score of multifariousness, but have answered and submitted to account and, indeed, paid into court a certain sum as and for the share of the money in their hands belonging to the plaintiff as administrator. The plaintiff is, therefore, entitled to an account upon this part of the case, and he may either take out of the office the sum paid in for him and put an end to the suit, or if not satisfied with the account of Mrs. Torrance's estate rendered by her executors he may have a reference in the usual form to have those accounts taken and his intestate's share ascertained under the direction of the court. But that he will do of course at the risk of the costs in (214) case he fails to show himself entitled to more than was paid in.
PER CURIAM. Decreed accordingly.