dissenting said:
I dissent, wholly, from the opinion of the majority of the court in this case.
A statement of the facts, as they are disclosed by the record, will fully illustrate the justice and the reasons why I do not concur.
In the year 1855, Francis J. Thompson died intestate, in the county of Culpeper, leaving his widow, Martha H. Thompson, and two sons, George C. Thompson, who resided in the city of Baltimore, and Francis J. Thompson, Jr., who was also a non-resident of Virginia, as distributees of his personal estate and heirs-at-law of his realty.
He had been a retired merchant, living on the interest of his money, invested chiefly in the bonds and notes of his friends and neighbors in the county of Culpeper, aggregating about $21,000 of solvent interest-bearing principal,' which, with a house and lot in the town of Culpeper, and household and kitchen furniture, together with seven slaves, valued at about $5,000, constituted his estate, worth, at the least, $30,000.
Soon after his death, his son, George C. Thompson, living in Baltimore, qualified in the county court of Culpeper county, as administrator of the estate, and held the trust for about a year, when he resigned it. In 1856, John Cook Green, an attorney-at-law, qualified as administrator, d. b. n., upon the estate, and continued such until his death, which occurred in July, 1860.
In July, 1860, James W. Green, also an attorney-at-law, and brother and partner of John Cook Green, then qualified as administrator d. b. n., of said Francis J. Thompson, deceased, and held the trust till his death, which occurred in April, 1884.
Neither John Cook Green, nor James W. Green, adminis*402trators de bonis non as aforesaid, made or returned any appraisement or inventory of the estate; but among the assets which came successively into their hands as such administrators, were three large debts due to their intestate, the said Francis J. Thompson, in his lifetime, viz: one from R. II. Field for $4,000, principal; one from Robert Ward of $2,831, principal; and one from Ilenry Shackelford for $2,609. The field debtwas unsecured; though, in 1856, when John Cook Green qualified as administrator d. b. n. of the estate, R. H. Field, the debtor, was the owner of 60 or 75 slaves, much stock, and other personal property, and remaimed so possessed up to the beginning of the war in 1861, and died seized and possessed in 1864 or 1865, of 1,800 acres of land without judgment or incumbrance upon it.
The Ward or Uewby debt, and the Shackelford debt, were amply secured by deeds of trust upon land. In 1867, the deed of trust on the tract of land called “ Cleveland,” which secured the Shackelford debt, was foreclosed by James W. Green, the administrator d. b. n. of Francis J. Thompson, and M. G. Shackelford, (now Gibson, wife of J. 0. Gibson,) and her sister, Lucy Sinclair, became the purchasers at the sale, and executed their bond for $4,402, which bond was at once transferred or assigned by James W. Green, administrator d. b. n. of said Francis J. Thompson, to himself as executor of John C. Green, in payment of a debt alleged to be due from F. J. Thompson’s estate to John C. Green, a former administrator d. b. n. of the said Thompson’s estate, as of April 4th, 1860; as was made to appear by the ex parte settled account of the said John C. Green, administrator d. b. n., made by the said James W. Green, administrator d. b. n. of the said Thompson’s estate.
This said purchase money bond, so assigned, was secured by a deed of trust on the “Cleveland” tract of land, dated Hovember 21st, 1867. In September, 1884, (James W. Green having died in April, 1884,) at the request of J. Ambler *403Brooke, (who, after the death of James W. Green, executor, had qualified as administrator d. b. n. of John Cook Green,) James G. Field, the trustee in the deed of trust of November 21st, 1867, from M. G. and L. B. Shackelford, before recited, advertised the “Cleveland” land in said deed of trust conveyed, for sale at public auction, to pay the aforesaid purchase money bond of the said M. G. and. L. B. Shackelford for $4,402, which, as beforesaid, had been assigned and transferred by James W. Green, administrator d. b. n. of F. J. Thompson’s estate, to himself as executor of John Cook Green, deceased.
Samuel W. Thompson, the appellee, upon seeing or learning of the said advertisement, and thereby, for the first time, being informed of the existence of the Shackelford debt, filed the bill in this suit in his own right as distributee of the estate of his father, George C. Thompson, deceased, and as the sole owner of the estate of F. J. Thompson, deceased; and by assignments from his grandmother, M. H. Thompson, and his uncle, F. J. Thompson, Jr., and his mother, S. H..Thompson, who had been all the while ignorant of the Shackelford debt, against James G. Field, trustee; and the appellants, J. Ambler Brooke, administrator d. b. n. of John Cook Green, deceased, Ann8 S. Green, widow and executrix of James W. Green, deceased; and A. McD. Green, Francis J. Thompson, Jr., and others, defendants, praying for an injunction to restrain the advertised sale of the “Cleveland” land, and that the assignment of the Shackelford bond of $4,402 from said James W. Green, administrator d. b. n. of F. J. Thompson, to himself as executor of John C. Green, might be set aside and cancelled; and that the sale of complainant’s interest in the estate of F. J. Thompson, deceased, to said A. McD. Green, be also set aside; and that John C. Green’s estate and James W. Green’s estate be required to account for the many thousands of dollars of personal property of the estate of F. J. Thompson, deceased, which came into their hands, either as administrators, attorneys, or assignees; that the said Ann S. Green, executrix *404of James W. Green, be required to render an account of the administration of James "W. Green upon the estate of F. J. Thompson, deceased; and that the estate of the said Green be subjected to the payment of the Field and Newby debts, and the value of the slaves and other assets of the estate of F. J. Thompson which went into the hands of the said administrator, and were lost, wholly or in part, by the laches and negligence of the said administrator; and praying for general relief. Upon this bill, an injunction was awarded restraining the sale of the “Cleveland” land as advertised, until the further order of the court.
At the November term, 1884, of the said circuit court the defendants, Ann S. Green, executrix of James "W. Green, deceased, and J. Ambler Brooke, administrator d. b. n. of John C. Green, deceased, and A. McDonald Green, filed their general demurrers and answers to the hill. After the taking of a number of depositions as to the validity of the sale and assignment by S. W. Thompson of all his interest in the estate of his grandfather, S. J. Thompson, deceased, to A. McD. Green, that question was settled and eliminated from the case by the entry of an order of voluntary surrender and reassignment by the said A. McD. Green to the said S. "W. Thompson at the March term, 1885. On the 8th day of June, 1885, the court entered the decree complained of—“ On consideration whereof the court, declining at this time to dissolve said injunction, and being of the opinion that, under the circumstances of this case, lapse of time and death of parties do not bar the complainant from having ordered a settlement of the fiduciary accounts, mainly because the court does not consider that such an account has ever been properly settled, doth adjudge, order, and decree that it be referred to one of the master commissioners of this court to take, state and report an account of F. J. Thompson’s several administration' accounts by his several administrators, and also a distributee account of said F. J. Thompson’s estate, showing what sums are properly chargeable *405to each; in stating which accounts said, master commissioner is instructed to accept as true the items of payments to the widow and distributees, and to all the other items of the ex parte accounts settled by s.aid several administrators, except James "W. Green, and except such as appear on their face to be erroneous; the court being of opinion that, after the lapse of time, it would be improper to permit the distributees of Francis J. Thompson, deceased, to question the items of payments to them,” &c.
From this decree the defendants, J. Ambler Brooke, administrator d. b. n. of John C. Green, and Ann S. Green, executrix of James W. Green, deceased, appeal.
The decree complained of is not a final decree, and it decides no principle or question of fact controverted in the cause, or. put at issue by the pleadings, except to say, guardedly, in favor of the appellants, that the master commissioner is instructed to accept as true the items of payments to the widow and distributees, and all the other items in the ex parte accounts of the administrators; “ that, after the lapse of time, it would be improper to permit the distributees of F. J. Thompson, deceased, to question the items of payment to them.” The decree does not perpetuate the injunction; it only declines, for the time being, to dissolve it, and to dismiss the bill out and out for all its scope and purposes.
The bill called upon J. Ambler Brooke, administrator d. b. n. of John C. Green, to show his title to the Shackelford bond, which was an asset belonging to the estate of F. J. Thompson, deceased, and to do this in his answer, he preferred the ex parte settled accounts of J. 0. Green, administrator d. b. n. of F. J. Thompson, deceased, (made by himself in his lifetime, and by James W. Green, his executor, many years after his death) by which it is made to appear that the estate of F. J. Thompson was indebted to the estate of J. C. Green; and then, to meet this indebtedness, he also preferred the assignment of the said bond *406by James ~W. Green, administrator d. b. n. of F. J. Thompson, deceased, to himself as executor of J. 0. Green.
The bill alleged that this assignment was invalid, not only because of the incompetency of J. W. Green, administrator d. b. n. of F. J. Thompson, deceased, to make the assignment to himself as executor of J. 0. Green, deceased, but also, because in fact, no debt existed as due from the estate of F. J. Thompson, decased, to the estate of J. C. Green, deceased. Upon the face of the accounts relied on by the appellants to maintain the existence of the debt, it is manifest that they are erroneous, and not what they purport on their face to be. All through the account, there is an improper and unlawful intermingling of the executorial and distributee accounts.
The settled accounts of J. 0. Green, administrator d. b. n. of F. J. Thompson, deceased, extending from 1855 to 1860, while they show the administration of assets to the amount of $10,000 or $11,000, embraced items amounting to less than $2,000, which are properly chargeable in an executorial account, and all the residue is on account of payments or advancements made to the respective distributees. An examination of the I settlement of J. O. Green, administrator d. b. n. of F. J. Thompson, shows on its face that during the year ending June 16th, 1856, he received in cash assets of the estate, $2,922 93, and paid out for the estate a few small bills, aggregating $243 44, leaving a balance due the estate, by him as administrator, of $2,679 49. All the other items of charges consist of advancements to the widow, or for her use and benefit, and to G. O. Thompson, a son and distributee of the decedent; and there is a mistake in adding the charges of a $1,000 against the estate, and in favor of the administrator d. b. n. The account settled for the year ending June 16th, 1857, shows receipts in cash by the administrator, assets of the estate amounting to $4,623 33, and paid during the time debts of the estate aggregating $322 40, (all the other payments were ad*407vancements to distributees) leaving a balance due the estate by the administrator, d. b. n., J. C. Green of $4,300 93.
The third settlement as administrator d. b. n. for the year ending June, 16th, 1859, shows that during that year he received in cash as assets of his decedent’s estate, $1,216 93, and paid out debts due by the estate aggregating $115 14, leaving a balance due the estate by the administrator of $1,201 79 for that year.
These are all the accounts which J. C. Green, as administrator d. b. n. of F. J. Thompson, laid before the fiduciary commissioner of Culpeper county. He died in 1859, and these accounts, ex parte, show that he was at his death, largely indebted as administrator to the estate of his intestate. It is admitted that F. J. Thompson, deceased, was not indebted at the time of his death, to J. C. Green; and the debt claimed against his estate is not by reason of any obligation incurred in his lifetime, but it is made to appear by an ex parte settlement of J. C. Green’s administration accounts, made by James W. Green, for the year ending June 16th, 1860, as executor of J. C. Green. It is alleged in the bill, that if this debt did exist at all, it was due from the distributees of the estate of F. J. Thompson for advancements made to them by J. C. Green, administrator d. b. n., and was not a debt due by the estate; and this is manifest from the face of the ex parte accounts upon which appellants rely. And it is further insisted in the bill that whatever debt did exist was paid off in full by the said distributees by the proceeds of the sale of the house and lot in the town of Culpeper, $4,000, received by J. C. Green, and no where accounted for by him or charged to him by James "W. Green, executor, in the account settled for him as aforesaid.
The accounts, ex parte, brought forward by the appellants in their answer to show their title to the Shackelford debt, are plainly and undeniably erroneous on their face; showing that whatever indebtedness, if any existed, to the estate of J. C. *408Green, administrator d. b. v. of F. J. Thompson’s estate, arose not from payments or advancements made by him for or on account of the estate which ire represented, hut on account of advancements made to one or more of the distributees; and the court properly directs, in its decree, a restatement of the administration accounts in the mode required by law, keeping the executorial and distributee accounts separate, showing what fund was'in hand for distribution, and how the same had been distributed; and merely re-arranging the items and charges in the^account, (without falsifying or rejecting one of them) in their proper order, so as to enable the court to ascertain whether or not, in point of fact, the estate of F. J. Thompson, deceased, did owe anything to the estate of J. C. Green, at the time of the assignment of the Shackelford bond, by James W. Green, administrator d. b. n. of Thompson’s estate, to himself as executor of John C. Green, deceased.
The court below declared, what is palpable from the record, that no proper account of the administration of J. C. Green, administrator d. b. n. of F. J. Thompson’s estate, had ever been settled; and the order of reference was absolutely necessary in the interest of truth and justice.
Eo harm or prejudice can be done to the estate of John 0. Green, either by his death or by lapse of time, by this decree. ETot a single item is to be stricken from, or added to, the account; and by the terms of the decree itself, the distributees are forbidden to gainsay a single item of payments made to them, and the estate of J. C. Green cannot be deprived of a single item of credit which appears in the account.
It may be that J. 0. Green, the administrator d. b. n. of F. J. Thompson’s estate had overpaid or improvidently made advancements to the distributees; and it may-be, as charged in the bill, that J. C. Green had fully reimbursed himself for these advancements by the retention of the proceeds of sale of the town house and lot in Culpeper, for which it is alleged he has no where accounted; but whatever the fact as to this may *409be, these overpayments or advancements to the distributees could not be properly charged to, or paid- out of the general assets of the estate in the hands of the administrator.
In such case the debt is one against the distributees, personally, for which the administrator may retain the distributive ascertained share of the distributee so overpaid; but the executorial account and the distributee account, must by law and by necessity be kept, and stated, separate and distinct; and it was manifestly improper to apply the general assets of the estate in recoupment of a debt created by advancements to the distributees. And this is especially true, if as contended by the appellant, in his petition, that this Shackelford debt, an asset belonging to the estate of F. J. Thompson, deceased, had been set apart for the widow and distributee of the decedent.
If this Shackelford debt had been set apart for, and belonged to Mrs. M. II. Thompson, (as the appellants state and strenuously insist in their answer,) then by what authority did the administrator d. b. n. of F. J. Thompson’s estate, who held it in his representative character in trust for her, assign it in 1867 to himself as executor of J. C. Green, to pay a debt due (even if such were the admitted fact,) by Thompson’s estate to J. 0. Green’s estate? Appellee is the assignee of this debt, and he is entitled to have the estate of F. J. Thompson, deceased, properly settled, to ascertain whether his assignor, Mrs. M. H. Thompson, had received her proper distributive share of the estate of her husband, more or less. And the same may be said of the appellee, as assignee of F. H. Thompson, and distributee of his father, G. C. Thompson, deceased. And, if by the settlement of a separate and proper distributee account, it should appear that one of the distributees had been overpaid, then the appellee, as assignee of such a one, cannot be called on to refund such overpayment out of the funds which may be due him as assignee of another distributee. lie could only be called on to refund as distributee of his father, *410G. C. Thompson, deceased, and then only to the extent of assets descended.
The appellee, though sole owner of the estate of F. J. Thompson, deceased, yet holds the estate in different rights; and it is as much to his interest and his right, to have these administration accounts restated and reformed, by proper classification of separate executorial and distributee accounts, as if the several distributees were suing in their own right.
The appellants concede that the assets which went into the hands of the several administrators of the estate of F. J. Thompson, deceased, were at least $21,000, independent of the slaves. Mrs. M. H. Thompson, the assignor of appellee, was entitled to one-third of this $7,000, as of 1856; yet the accounts show that, during a period of nearly thirty years, she has received from her husband’s estate a sum less than $5,000. But it is strenuously urged by the appellants that the right of appellee to call in question the assignment of the Shackelford bond, as before said, or to reopen the settled accounts of J. O. Green and James W. Green, as representatives of the estate of F. J. Thompson, is now barred by statute of limitation, or lost by appellee’s laches or neglect.
We know of no statute of limitation that applies, in terms, to the circumstances of this case; and the equitable doctrine of laches is not an inexorable rule of law, but is governed by the special circumstances of each case. (Lamar v. Hale, 79 Va. (4 Hansbrough, pp. 148 and 164.)
In the case of Morrison’s executor v. Householder’s adm’r, 79 Va., (4 Hans.) p. 631, the defence was founded upon lapse of time and alleged laches of the appellees, and in that case the court said: “It is true that equity will not lend its aid to enforce stale demands when, by reason of the death of parties, or loss of papers, or from other circumstances, there can no longer be a safe determination of the controversy; but such circumstances do not exist in the present case. The transactions in question have not become obscured by lapse of *411time; * * * the evidence to enable the court to do justice between the parties has not been lost.”
Estoppel from acquiescence must rest upon actual knowledge of the wrongful act; its injurious effects, and unreasonable delay. (2 Pomeroy’s Equity, p. 817; 2 Perry on Trusts, § 849; Rowe v. Bentley, 29 Gratt., 763; Nelson v. Carrington, 4 Mun., 332-343. .
How, what are the facts of this case, as disclosed by the record, and what the direction and effect of the decree complained of? Erom 1855 down to 1883, all the parties interested in the estate were non-residents of the State of Virginia, and had not knowledge of what was going on in the administration of the estate, one of them, F. J. Thompson, residing in Africa; another, George C. Thompson, father of the appellee, residing in Maryland; and E. H. Thompson had not been in Virginia for twenty-seven years. George C. Thompson died iu 1874, and Mrs. M. H. Thompson became non compos mentis from age. As soon as S. W. Thompson, the child and heir of George 0. Thompson became of age, and became cognizant of his rights, he brought this suit. He is before the court not only as distributee of George 0. Thompson, but as assignee of E. J. Thompson and M. H. Thompson; and the evidence shows that none of the Thompsons knew of or suspected the assignment of the Shackelford debt by J. "W. Green, administrator d. b. n. of E. J. Thompson’s estate, to himself, as executor of 1. Cook Green, until the “Cleveland” farm was advertised for sale to pay a debt alleged to be due to the estate of J. C. Green, deceased, by the estate of his intestate, E. J. Thompson, deceased, by J. Ambler Brooke, administrator d. b. n. of said J. C. Green, deceased. Heither George C. Thompson, administrator, nor J. C. Green, administrator d. b. n., nor J. W. Green, administrator d. b. n. of the estate of E. J. Thompson, ever made or returned any inventory of the said estate by which the parties interested could know or find out what assets, dioses in action, or other property have come into their hands *412respectively; and when the appellee, S. W. Thompson, upon attaining to his majority came to Virginia and sought information from J. W. Green, administrator d. b. n. of F. J. Thompson’s estate, he was informed by the said J. W. Green, that all the estate of F. J. Thompson, deceased, consisted of two debts— the Field and the Newby debts—(and these subject to the debts due by the estate), while he was never informed, or in anyway advised of even the existence of the Shackelford debt as an asset of the said estate. John C. Green, an attorney-at-law at Culpeper, was the counsel of F. J. Thompson in his lifetime, and counsel for his estate and his personal representative, after the administrator, George C. Thompson resigned, and he had •charge of the real estate and paid taxes and insurance thereon. When he died in 1860, James W. Green, his brother and partner, qualified as his executor, and as administrator d. b. n. (in the third degree) of the estate of F. J. Thompson, deceased. He, in 1860, settles an ex parte account, not of his own administration, but of the administration of J. C. Green, the former administrator d. b. n. of F. J. Thompson’s estate; and then, in 1867, as administrator d. b. n. of F. J. Thompson’s estate, assigns to himself, as executor of J. C. Green, deceased, the Shackelford bond, an asset in his hands belonging to F. J. Thompson’s estate, to pay an alleged indebtedness from the estate of F. J. Thompson to the estate of J. C. Green, made, if made, by heavy over-payments advanced to the distributees of F. J. Thompson’s estate, after the death of the said F. J. Thompson, by the said J. C. Green, former administrator d. b. n. of the estate of the said decedent.
An administrator d. b. n. is not responsible for the administration of a former administrator, nor of a fomier administrator d. b. n.; nor can he call him to account, or sue for a devastavit—there is no privity between them. (Rives v. Patty, 43 Miss., 388; Beall v. New Mexico, 16 Wall., 535; Carrick v. Carrick, 23 N. J. Equity R., 364.) And the reason and principle of this established rule of law would forbid James W. Green, as *413executor of John 0. Green, to settle the administration accounts of John 0. Green, a former administrator d. b. n. of F. J. Thompson’s estate, establish by this ex parte settlement an apparent indebtedness against Thompson’s estate in favor of J. 0. Green’s estate, arising out of alleged overpayments by said J. C. Green, administrator d. b. n. of the estate, to the distributees of the estate; and then by his own assignment, as administrator d. b. n. of Thompson’s estate, to himself as executor of J. 0. Green, former administrator d. b. n. of Thompson’s estate, undertake to recoup these asserted apparent overpayments to one or more of the distributees of the estate.
If an administrator make advances to the distributees of his decedent’s estate, he does so at his own risk; and if he have' not taken refunding bonds, no subsequent administrator can recoup for him out of the decedent’s estate. The only remedy in such case, would be a chancery suit against the heirs and distributees so overpaid.
The authorities relied on by counsel for appellants, (1 Lomax on Executors, p. 414; Morrow v. Peyton, 8 Leigh, 54; Harvey’s ex’or v. Steptoe, 17 Gratt., —; Caskie’s ex’or v. Harrison, 76 Va.,. 85;) sustain the proposition, that when the same person is representative of two persons, one of whom has died indebted to the other, he may retain out of the assets in his hands as representative of the estate of his debtor, to pay the debt due to the creditor estate; which debt was created, recognized, or established before the two estates came into the hands of the common administrator.
But this is not that case; and it would be carrying the doctrine of retainer very dangerously far to permit an administrator d. b. n. (in the third degree), as executor of an administrator d. b. n. in the second degree, to settle an ex parte account of the former administrator d. b. n. (in the second degree) and establish an indebtedness from the estate in the first degree to the estate of the former administrator d. b. n. in the second *414degree by settlements which, show on their face that the apparent indebtedness was not chargeable to the administration or executorial account, but to the distributee account, if at all; and then, as administrator d. b. n. of the estate in the first degree, to assign to himself the general assets of his estate in the first degree, to pay the estate of the administrator d. b. n. in the second degree. But be this as it may, the decree appealed from does not decide the question of the validity of the challenged assignment; the bill denies the existence of the alleged indebtedness of B. J. Thompson’s estate to the estate of J. 0. Green, and alleges that, if such debt exist at all, it was ■due from the distributees of the estate of B. J. Thompson for advancements made to them by J. 0. Green, the administrator cl. b. n., and to enable the court to decide this important issue ■of fact, the master commissioner is directed to reform the accounts, and, without altering or rej ecting a single item of credit to the estate of J. C. Green, to separate and properly classify the administration and the distributee accounts improperly intermingled and merged upon the face of the accounts preferred.
It is true that J. 0. Green and J. ~W. Green have both departed this life, but there is no suggestion of any loss of papers or other evidence; on the contrary, the record discloses the fact that they have been preserved and are filed as exhibits with the answers. Appellee accounts for the delay in bringing his suit by infancy, non-residence, and want of notice and knowledge; and the appellants have possession of all the papers throwing any light upon the subject of investigation. Bor the foregoing reasons, I think that the decree appealed from is right, and I am constrained to dissent from the opinion ■of the majority of the court.
Decree reversed.