John B. Mebane, of the county of Chatham, devised and bequeathed to his daughters, Cornelia and Martha Anne, as follows: "I give and bequeath to my two daughters, Cornelia and Martha Anne Mebane, and their heirs forever, the following property, to be equally divided between them, agreeable to value, whenever either of them shall marry or come of lawful age; that is to say: all my land, with the appurtenances, lying on Hickory Mountain, in the county of Chatham; the whole of my negroes, with their increase until that time (if I mistake not, at this time thirty-two in number); and twelve shares of stock which I hold in the Cape Fear Navigation Company."
John Mebane and Joseph John Alston were named as executors in the will, and qualified. Cornelia married one Charles Hamlin, and died without bearing any children in the lifetime of her said husband Charles Hamlin, and before her sister Martha Anne, who is since dead. A record of the pendency of a suit by the husband of Cornelia against the executors of John B. Mebane, for the recovery of her part of the slaves bequeathed in the will of John B. Mebane (in which there is no allegation of claim for the stock), is filed as an exhibit in the cause. This bill is filed against James Mebane, the executor of John Mebane, and against Rives and Jackson, the executors of Joseph John (19) Alston (which two, James Mebane and J. J. Alston, were the executors, as above stated, of John B. Mebane), by Willis Hamlin, *Page 23 administrator of Cornelia, for an account, and for recovery of the twelve shares of Navigation stock, with the accruing dividends and interest on the same.
Mary Anne's share of the stock in question was sold at public auction to the highest bidder, by the executor of John Mebane, and the money collected and appropriated by him, as her next of kin, to his own use.
The defendants in their answer insist, among other things, upon the length of time and the circumstances as evidence that this claim had been paid and satisfied or abandoned.
The cause was set for hearing on the bill, answer and exhibits, and transferred to this Court. The plaintiff's intestate married in April, 1831; the bill was filed March, 1851; so that there has been twenty years, wanting one month, since the ward had a right to demand and it became the duty of the guardian to make a settlement. No explanation is offered for this delay, save that the intestate died some time during the year 1832, and her husband, who is the real plaintiff in this case, did not think proper to become administrator or procure any one to do so.
Surely the administration of justice would be "a trifle" if such an allegation could be passed off as an explanation for a delay of twenty years! A ward in socage, at common law, might bring his action of account against his guardian; but, as the mode of proceeding was dilatory and expensive, the Court of Equity offered a better remedy. A bill in Equity, by a ward against his guardian, is only a substitute for an action of account. The statute of limitations, 1715, bars the action of account after three years, saving the rights of femes (20)covert, persons non compos, etc. The act of 1795 provides: "If any orphan, coming to the age of twenty-one years, does not call on his guardian for a full settlement in three years, the sureties of said guardian shall be discharged; with a proviso for persons imprisoned, beyond sea, and non compos. There is no saving in favor of femes covert, for a very obvious reason: If the statute did not apply to cases where female orphans married, at least one-half of the number of cases, where the Legislature intended to discharge the sureties, would have been unprovided for.
The act of 1826 declares that all judgments, etc., after ten years, shall be presumed to be paid and satisfied, and all equities of redemption, and other equitable interests, shall, after ten years, be presumed to be satisfied or abandoned. In this statute there is no saving; it seems to *Page 24 have been intended emphatically as a statute of repose. It is decided that this act does not extend to express trusts, or to claims for legacies or filial portions; and we do not now feel called on to say whether the case of a ward who fails to call his guardian to account is covered by it or not; for we prefer to put this case upon the fact that a delay of twenty years, wanting one month, together with the facts that soon after the marriage of the plaintiff's intestate her husband and the defendant's testator had cross actions in regard to the negroes claimed in her behalf, and that the bill does not mention that any other matter or thing was left unsettled; that soon after the death of John Mebane, in 1839, the defendant, as his representative, sold the twelve shares of stock as belonging to his estate, and that Martha's part of the stock (she dying after her sister) passed by succession to the said John Mebane. The lapse of time and the other facts and circumstances enable the Court to decide this case without going into some very nice points; e. g., (21) a guardian is bound to account at the age of twenty-one or marriage — the fact of marriage creates a disability; is that to rebut the presumption of a settlement? or does it not, in the nature of things, after so long a time, show that there must have been some arrangement or adjustment of the matters in controversy?
Without reference to a rule of presumption, or to a statute of limitations, we feel satisfied, viewing this as an open question of fact, that there has been a settlement or an abandonment of the claim in regard to the share of the plaintiff's intestate to the twelve shares of stock. There was no occasion for any entry upon the books of the company. The stock stood in the name of John Mebane, who was acting executor of John B. Mebane, and the plaintiff's intestate, or her husband, could abandon or release this claim under the will without a formal entry upon the books of the company, and no entry was called for until 1842, when the defendant, James Mebane, as the executor of John Mebane, sold the stock to Curtis.
Bill dismissed with costs.
Cited: Ward v. Ward, post, 336; Davis v. Cotton, 55 N.C. 435; Hodgesv. Council, 86 N.C. 184-6; Hall v. Gibbs, 87 N.C. 6; Headen v. Womack,88 N.C. 470; Tucker v. Baker, 94 N.C. 165; Mull v. Walker, 100 N.C. 51;Alston v. Hawkins, 105 N.C. 9; Kennedy v. Cromwell, 108 N.C. 3;Faggart v. Bost, 122 N.C. 521; Norton v. McDevitt, Ib., 759; In reDupree's Will, 163 N.C. 259. *Page 25