dissenting. — In my judgment, the complainant is entitled to all the relief sought by his bill, so far as he claims as a distributee of his father’s estate ; and he would also be entitled to distribution for his share of his deceased brother’s portion, by taking out administration on that estate. I also consider that both these accounts should be stated upon the most rigorous principles known to courts of equity. I shall endeavor, as briefly as possible, to give the reasons which lead me to these conclusions.
The defendant is not to bo considered merely as the administrator of the estate committed to his charge, because, in addition to the duties imposed by this office, there was the superadded obligation arising out of his relation to the complainant. The defendant, after his intermarriage with the complainant’s mother, stood to him ha loco parentis; yet we find every obligation violated, and the child that should have been cherished and kindly treated, banished from the house of his mother, and brought up *106almost'as a slave ; and this, notwithstanding he was entitled to an estate amply sufficient for his support. For eight years the complainant is suffered to remain in this condition, and when on the eve of his majority, but yet during his actual minority, the defendant makes a pretended settlement, and takes from him a conveyance of all his rights for a grossly inadequate consideration. This transaction is considered by all the members of the court as fraudulent, but a majority of the judges hold that the laches of the complainant has been such, as, in connection with the subsequent transactions between these parties, to debar a court of equity from listening to Ins complaint.
I apprehend that no case whatever can be found whei’e such a transaction as this has been sustained by a court of equity. The universal rule is, that if a trustee will deal with his cestui que trust he must always be prepared to shew that the dealing is entirely fair, made upon the fullest communication of all the facts and circumstances connected with the trust property, and upon the payment of a consideration fully adequate. It does not rest with the cestui que trust to shew by evidence that the dealing is unfair, or that an advantage has been taken of him ; but the onus is cast on the trustee to support it. A multitude of cases might be cited in support of this principle, but one of recent date will be sufficient for reference, [Hunter v. Atkyns, 1 Coop. S. C. 464. See 8 Cond. E. C. 497.]
I presume the same principle applies to any pretended confirmation of any such dealing subject to impeachment, that is, that there must be full and complete information of all the circumstances of the trust estate; but beyond this, the act which is relied on as a confirmation, must be done with the intention of confirming the previous act, and with the knowledge that it might be so impeached in a court of equity. [Murray v. Palmer, 2 Sch. & Lef. 474, see 486; Morse v. Royal, 12 Vesey, 355, see 494; Cockerell v. Chalmeley, 1 R. & M. 425, see 4 Cond. E. C. 494.]
What then are those acts which are supposed to be confirmatory of the fraudulent settlement ? In 1825 the defendant paid the residue of a note which was given when the former transaction was consummated, and he then procured ihe complainant to endorse on the note, or to sign an endorsement so made, that the payment was in full of the balance due him of negro property •belonging to the estate of his father, and of other things of a per*107sonal nature. Now this seems to me to be nothing but a contrivance, as is said in Wiseman v. Beake, [2 Vernon, 121,] to double hatch the cheat. This note bears the same date, and evidently was given when the settlement was made, and I have no doubt, was a part of the consideration given for it, though the defendant asserts that it was the consideration for the return of the complainant’s interest in the slaves Charles and Sue, and her issue, without paying for which the complainant would come to no final settlement. This assertion is utterly inconsistent with the return exhibited, for by that it appears these slaves were expressly excepted from the settlement, as they were then involved in a chancery suit. A previous part of the answer asserts, that after this suit was disposed of, the defendant settled with the complainant for his share of these slaves. The receipt made on the back of the note, is a release in its terms, not only for all the negro property, but is also for all other things of a personal nature; the former release too, contains the same general expressions, yet it is entirely evident that the cattle belonging to the estate were net then divided. Certainly this mode of taking releases on the back of notes, is a very suspicious way of confirming a fraudulent transaction, or of conveying the necessary information to enable one to act advisedly. When the defendant is pressed, as I infer, for a division of the cattle, he makes the opportunity to involve the complainant in another writing, by which he agrees to bear his proportion of any debts which may subsequently come against the estate. This is more than ten years after the grant of administration, and I have much difficulty in conceiving what claims could then exist for which the defendant, as administrator, could then be made liable. But however this may be, the paper carries intrinsic evidence that its execution was induced by the idea that otherwise no division could be had. The declarations made by the complainant, subsequently to the settlement, that he considered it as fair, and that his uncle had dealt justly by him, are consistent with his want of information with respect to the true condition of the estate, but are utterly inconsistent with the feelings which he must have entertained, if he had known its true value. Nothing, in my opinion, is more clear from the evidence, than that he had no suspicion that he had been defrauded, until the period when the defendant settled with the husbands of his two nieces. This was in 1830; but even at *108that time the complainant had not the necessaryinformationto enable him to ascertain the extent to which he had been defrauded.
Being satisfied that the supposed confirmatory acts and declarations have no weight in this case, I will proceed to consider the lapse of time. The complainant was bom in July, 1803, and consequently came of age in that month, in 1824. This bill was filed, as I infer from its first continuance, in the summer vacation of 1835; therefore, eleven years had elapsed from the period of his majority, and a few days beyond that from the time of the settlement, that having been made the 18th of June, 1824.
I think there has sometimes been a great misapprehension of the celebrated decisions of Lord Camden, in Smith v. Clay, [Amb. 645,] but better reported in 3 Bro. C. C. 639; and of Lord Redesdale, in Hovenden v Lord Annesley, [2 Sch. & Lef. 633.] Neither of these most eminent men intended to be considered as saying that all cases were within the influence of time, for the judgment of the first is given with reference to a bill of review, and the case of a concealed deed, is by him expressly excepted; and in the opinion of the last, it is conceded, [see page 633,] that a trustee in possession of the trust estate can never avail himself of the lapse of time as against his cestui que trust. The same admission is made by Sir William Grant, in Beckford v. Wade, [17 Vesey, 88 — see 97.] It is only cases of constructive, and not of direct trust, in which time operates as a liar. 'It is true that even in cases of direct trust, time has its influence, but it is only by way of evidence, in the same maimer as length of time would create the presumption of payment of a bond at common law. [Morse v. Royal, 12 Vesey, 355 — see 377.] Doubtless, there was a period in the court of chancery of England, when the notion of trust and fraud was carried to a very improper extent, but the doctrines promulgated by Lords Camden and Redesdale, were not new even in that court; for Lord Macclesfield, in Lockey v. Locky, [Free, in Chan. 518] had long before recognized and acted on the true rule. That was the case of a constructive trust, one having secured the profits of an infant’s estate, after six years, was held, entitled to the protection of the statute of limitations. Whether the same rule could be applied to an actual guardian, I need not consider, further than to say, that in my opinion, it could not, at any rate, until the relation was dissolved, and the estate surrendered. I admit that the effort of courts of equity, ought al*109ways to be to bring all cases within general rules, so fhat as little may be left to individual discretion as may be, and that such is the constant course ol'judicial decision; but I apprehend there is, or can be no middle ground, between bringing every case within the analogy of the statutes of limitation, and the similar analogy of common law presumption, or leaving it to the broad discretion of each individual judge. I think the English chancellors, (and I do not speak of them as differing from American judges, but because an examination of the whole number of cases on this subject would make a volume) have placed this subject on its true foundation; and when they speak of each case, resting on its own circumstances, to let in or exclude the bar of time, when the case is not controlled by the statute, they are to be understood as speaking of the circumstances as matter of evidence, from which a satisfaction might be presumed, a confirmation inferred of an impeachable settlement, or if necessary, a release. [Morse v. Royal, supra; Hillary v. Waller, 12 Vesey, 239; Hercy v. Dinwoody, 2 Vesey, jr. 87.] I think it very clear that such was the opinion of Lord Redesdale, as he gave the decree in the case of Murry v. Palmer, [2 S. & Lef. 474,] only a very few months hr advance of that in Hovenden v. Lord Annesley, and then granted relief after a lapse of 12 years, and when the plaintiff had each year, received the interest of the purchase money of a sale made by her trustee in violation of her rights.
In the very recent case of Bennet v. Colley [2 M. & R. 225. See 7 Cond. E. C. 342,] it was held that thirty years acquiescencé of a party ignorant of his rights, was neither a waiver, or a confirmation of any thing done against him. The object of the suit was to obtain compensation out of the trustee’s estate for a breach of duty.
The case of Alden v. Gregory, [2 Eden, 280,] is in all material features, precisely similar to this, and there a conveyance was set aside, and account decreed after a lapse of more than 40 years.
Cases are very numerous álso, in which accounts have been unravelled as between trustee and cestui que trust, after great lapse of time, upon allegation of fraud or mistake. [Whatton v. Toone, 5 Madd. 53, alter sixteen years; Vernon v. Vawdry, 2 Atk. 119, twenty-three years; Pickering v. Stamford, 2 Vesey, jr. 272, an account decreed in favor of next of kin, against executors after forty-one years; Lewis v. Morgan, 5 Price, 42, *110accounts of thirty years, were unravelled; Purcell v. Mcnamara, 14 Vesey, 91, & Pickett v. Logan, ib. 285, deeds were set aside after fifteen years.] In Whalley v. Whalley, [1 Merrivale, 436,] it is admitted that time is not a bar when the cestui que trust seeks to set aside a deed for the fraud of his trustee and against him.
This recital of cases might be greatly extended, but I consider them as sufficient to show that time is no bar whatever to such a suit as this, and that unless a satisfaction can fairly be presumed, an account must be allowed.
Independent of any decision upon this subject, it seems to .me, that when it is conceded that the mere delay of a distributee to call for an account, will not impair his claim upon the administrator, it would be monstrous to suppose he could effect his discharge by a fraudulent settlement, for that would be giving premiums for fraud.