1. In Hall v. Lay, 2 Ala. Rep. 529, it was decided, that the Orphan’s Court does not possess the power under the legislation of this State to appoint a guardian of the person or estate of a minor, whose father is living. But the father himself, as the guardian by nature, is entitled to the direction and control of the person and property of his child, until it attains its majority; subject, however, to the right of chancery, under some circumstances, to place the child under pupilage of another, and to provide for the security of the estate. Such being the law, it was entirely competent for the executors of Wm. Davis to place in the hands of Joseph Wood, that portion of the testator’s estate, which was bequeathed to his children. In fact, the frame of the bill in the case before us, very clearly indicates that such a disposition of the plaintiff’s legacy, is not complained of; but it is insisted that the executors have not fully accounted with the natural guardian; and hence an account is sought against the executors and the father, and a decree prayed for the amount of their respective liabilities. We will then consider the executors discharged to the extent to which they have accounted with Joseph Wood, and inquire whether the plaintiff is entitled to recover of them any thing further.
In cases where the remedy at law and in equity, is concur*762rent, the statute of limitations applies alike iti both forums; it being considered as addressed to, and obligatory upon them.— In the case of a strict trust, and where a fraud has been prac-tised, the statute will not operate proprio vigore in the first case, unless perhaps the trustee has placed himself in an an-tagonistical position to the cestui que use, or in the latter, until the fraud has been discovered.—Maury’s adm’r v. Mason’s adm’r, 8 Porter’s Rep. 211; 2 Story’s Eq. 735; Hovenden v. Lord Annesley, 2 Sch. & Lef. Rep. 607; Smith v. Clay, 3 Bro. Ch. Rep. 640; Bond v. Hopkins, 1 Sch. & Lef. Rep. 430; Kane v.Bloodgood,7 Johns.Ch. Rep. 90; Mendlicot v. O’Donel, 1 B.& B. Rep. 166; Hawley v. Cramer, 4 Cow. Rep. 718; Farnam, adm’r v. Brooks, 9 Pick. Rep. 212; Codman v. Rogers, 10 Ibid. 119. But Courts ofEquity recognize mere lapse of time, and the staleness of the demand, as a valid defence in cases where no statute of limitations directly governs the case. “In such cases,” says Mr. Justice Story, “ Courts of Equity act sometimes by analogy to the law; and sometimes act upon their own inherent doctrine of discouraging for the peace of society, antiquated demands, byrefusing to interfere, where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights.”— 2 Story’s Eq. 736, and cases cited in note.
The 42 sec. of the act of 1806, “concerning wills and testaments,” &c. gives the action of account to one joint administrator against another; and enacts further, that “ any executor being a residuary legatee, may have an action of account against his co-executor, or co-executors, and recover his part of the estate, in the hands of such co-executor, or co-executors; and any other residuary legatee may have the like remedy against the executor; and any person having a legacy bequeathed in any last will and testament, may sue for and recover the same at common law.—Aik. Dig. 183. This statute in totidem verbis, gives the action of account to any residuary legatee, against the executor, and the difficulties in the prosecution of such an action, will not allow us to refuse to treat it as a legal remedy. If the principle we have stated in regard to cases in which Courts of Law and Equity exercise a concurrent jurisdiction, be applicable, then is the statute of limitations an available bar for the executors; for the commencement oían action of ac*763count, is limited to six years aftei; the cause of it accrues Aik. Dig. 270; and the proof in the record very satisfactorily shows, that the plaintiff attained his majority eight or nine years previous to the filing of his bill. In determining that the statute bars all remedy against the executors for an account and recovery of the plaintiffs residuary legacy, either by action at law, or bill in equity, we ai’e not to be understood as intimating that the same length of time could be urged as a reason why a settlement should not be coerced by the Orphan’s Court. What period would be sufficient to authorise the presumption that, a settlement had been made or dispensed with by the parties interested, out of Court, would in general, depend upon collateral, and extrinsic circumstances, and consequently cannot be determined until the question arises in judgment.
But even supposing that the statute of limitations does not bar the plaintiff’s suit, and we are inclined to think that the amount unaccounted for, is too inconsiderable to authorise á Court of Equity to entertain the case. Taking the account presented to the County Court by Person Davis, to be a correct statement of the estateof Wm Davis,'so far as it came to the hands of the executors, and it appears that the sum of two hundred and eighty-nine dollars and forty three and three-fourth cents, have never been accounted for, by them. This-account was exhibited in'April, 1824. The complainant’s distributive share being one thirty-sixth part of that sum, did not with interest added, at the time the bill was filed, amount to more than seventeen dollars and fifty cents. Now-it has been considered by this Court, that the statutes regulating appeals from justices of the peace, and the mode of trial in the higher Court, secure to the parties all the justice and equity to which they are entitled ; especially where the amount in controversy does not exceed twenty dollars. And consequently it' has been holden, that if in any such case, chancery will interfere, it must be where the amount in controversy exceeds twenty dollars.—Williams et al. v. Berry, et al. 3 Stew’t & Porter’s Rep. 284. In taking the account to show the maximum of the executor’s indebtedness, we must not be understood as affirming it to be conclusive- against them; for we are by no means sure that the answers of the defendants upon this point, which are responsive to *764the bill; and especially when considered in connection with the depositions of some of the legatees, which are in the record, negative the idea that the executors have not fully accounted.
In respect to a tract of land not specifically bequeathed, and which Person Davis relinquished to the United States under one of the laws for the relief of purchasers of the public lands, it very satisfactorily appears, that it was purchased by Person Davis at the government sale of lands at Milledgeville, in 1818, who paid in cash one fourth of the purchase money; that after-wards the testator became a ■ purchaser from him of an undivided moiety, upon paying one half the sum, he had paid to the United States. This arrangement between Person Davis and the testator, was not evidenced by writing; and afterwards the latter stipulated with the former, that if he would hire his negroes, and allow him to live with him during life, he would relinquish to him his entire interest in the land. The contract was performed by Person Davis, and consummated by the death of the testator, while a member of his family. These facts do not show, that by the purchase from the government, Person Davis became a trustee of a moiety of the land for the testator; the latter made no previous agreement to become a joint purchaser, nor did he furnish any part of the purchase money; but it was only after Person Davis became the proprietor, that he acquired an interest with him. The statute of frauds under these circumstances, does not render ineffectual for all purposes, the last contract by which Person Davis was again to have the entire tract of land. Suppose the testator had filed his bill for the specific performance of the first contract by coercing Person Davis to execute the necessary evidence of title to an undivided moiety, would it not have been competent for the defendant to have resisted such a decree by showing that the testator, had agreed with him to relinquish his right to the jand for a valuable consideration, which he was willing to perform? Even if such evidence was not admissible as the basis of a right, yet it would be sufficient, to induce a Court of Equity to refuse to be active by decreeing against it. —2 Story’s Eq. 80-1, And if an action had been brought by the testator for money paid by him, or for which Person Davis sold the land, it would have availed the defendant to show the facts, as going to establish that the testator had parted with his legal right. *765So, that in .no view should the executors be held to account for this land as a part of the testator’s estate.
2. The proof is entirely satisfactory, to show that all the slaves specifically bequeathed to the children of Sally Wood, were, when the will was made, and for years previously, and have continued ever since, in the possession of Joseph Wood, to whom they had been given by the testator. Such is the evidence of several of the legatees, whose depositions are in the record, and who state, that the testator bequeathed to his other children, the slaves he had previously given them, for the purpose of manifesting that he was alike just and liberal to all.— The concessions made by Joseph Wood, in regard to these slaves, in order to effect an amicable adjustment with his children, cannot prejudice him; and even if admissible for any purpose, would be considered as gratuitous, over-balanced as they are by circumstances, and the positive statements of the witnesses. Equally ineffectual must be the evidence of several witnesses who testify, that about the time Joseph Wood and his children were endeavoring to settle, the former spoke of the slaves in question, as a part of the estate of William Davis, deceased ; the conversations related by these witnesses, were expressed in such terms as one who was not very precise in the use of language, or watchful of his rights, might be expected to employ.
The competency of the executors as witnesses, is not explicitly brought to the view of the Court by the assignment of errors, and if it were, we do not think that the admission of their testimony taken after the bill was dismissed as to them, could affect the decree. The statute of limitations operating as a bar in their favour, they could not be charged by the plaintiff, by a suit at law or in equity, for a devastavit or other cause:— Again, no objection was made to their evidence in the Court of Chancery, and on writ of error, it must be understood to have been admitted with the plaintiff’s assent: And lastly, independent of their testimony, the proof in the cause is entirely sufficient to sustain the decree.
In neither of the points raised; is there any error, and the decree of the Court of Chancery is consequently affirmed with costs.