It should have been further stated on the original hearing that respondents, by way of answer setting up the facts, charged:
That complainant "is guilty of laches and is estopped from having any claim against respondents"; that "J. H. Patterson was the husband of Laura A. Patterson, mentioned in the complaint, and acted as her agent and attended to all of her business; that from time to time your respondent, L. A. Weaver, paid to J. H. Patterson certain sums of money for Laura A. Patterson, up to the time of her death in 1915, and that after her death the said J. H. Patterson continued to act as agent and representative of her estate and of her children; that finally in 1919 there was a final settlement of said legacy by respondent L. A. Weaver with the said J. H. Patterson, and that respondent L. A. Weaver has the receipt in full for said legacy.
"That the last payment in 1919 was by check for three hundred ($300.00) dollars as settlement in full, and was accepted by J. H. Patterson as settlement in full of the claim of Laura A. Patterson to said legacy; that since the payment of said sum of three hundred ($300.00) dollars, the balance due of said legacy, there has been no demand on behalf of any of the heirs of said Laura A. Patterson for any sum of money due from said L. A. Weaver, and said L. A. Weaver was unadvised that there was a claim for any sum until the filing of this suit."
Among other things the decree recited:
"* * * That the husband, J. H. Patterson, inherited the legacy provided by the will of Sarah J. Weaver to Laura A. Patterson from Laura A. Patterson upon her death, and that the estate of Laura A. Patterson has no interest in said legacy, and cannot recover the legacy if it has not been paid by Dr. Weaver to J. H. Patterson.
"The court is further of the opinion, by a check offered in evidence in this cause for three hundred dollars, of date December 22, 1922, payable to J. H. Patterson, which check reads, 'Settlement in full of S. J. Weaver will,' that said legacy to Laura A. Patterson was settled by check to J. H. Patterson, her husband, who inherited said legacy from his wife under the laws of Tennessee."
And the appropriate judgment was entered dismissing the bill.
Speaking generally, a personal representative is not authorized to take possession of any property of which the title and right of possession is not in the estate of decedent. Crescent City Ice Co. v. Stafford, Fed. Cas. No. 3,387, 3 Woods, 94. And this rule obtains to the time of a final judgment rendered in the cause.
There is a well-recognized distinction between laches and estoppel, which need not be defined at this time. In the general sense, laches is the neglect for an unreasonable and unexplained time, under circumstances permitting diligence, to do what in law should have been done under the circumstances. It is an implied waiver, so to speak, that arises from such acquiescence with a full knowledge of the facts. In this jurisdiction it is said that laches exists when the neglect *Page 690 and delay in assertion of the right is such that, under the lapse of time and recognized circumstances, has caused prejudice to the adversary and held to operate as a bar in a court of equity. Montgomery, etc., v. Lahey, 121 Ala. 131,25 So. 1006; Rives v. Morris, 108 Ala. 527, 18 So. 743; Hauser v. Foley Co., 190 Ala. 437, 67 So. 252; Wooddy v. Matthews,194 Ala. 390, 401, 69 So. 607, 5 Pomeroy Eq. Jur. 321.
The rule is thus declared in Rives v. Morris, supra:
"Where, from delay, any conclusion the court may arrive at must at best be conjectural, and the original transactions have become so obscured by lapse of time, loss of evidence, and death of parties as to render it difficult if not impossible to do justice, the complainant will by his laches be precluded from relief; and it is not even necessary that the court should be satisfied that the original claim was unjust, or has been satisfied. And this is true, even though the demand is not barred by the statute of limitations, nor under the ban of the doctrine of prescription."
Nothing can call forth a chancery court into activity but conscience, good faith, and reasonable diligence, and under circumstances consistent with fair dealing with an adversary, as to the property in question. And when, because of the lapse of time, death of interested parties or witnesses, the loss or destruction of papers, or other causes making it no longer safe or free from danger of doing injustice to proceed with a determination of the controversy, laches will be held to have intervened staying the proceeding to judgment as inequitable. Meeks v. Miller, 214 Ala. 684, 686, 108 So. 864; Copeland v. Warren, 214 Ala. 150, 153, 107 So. 94; Hope of Ala. Lodge v. Chambless, 212 Ala. 444, 448, 103 So. 54; Moore v. Moore,212 Ala. 685, 103 So. 892; Sweeney v. Sweeney, 210 Ala. 593,98 So. 883; Heflin v. Heflin, 208 Ala. 69, 93 So. 719; Corley v. Vizard, 203 Ala. 564, 84 So. 299; Scott v. Scott, 202 Ala. 244,80 So. 82; Sims v. Riggins, 201 Ala. 99, 77 So. 393; Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124.
From the probate of the will in 1908 to the date of her death, Mrs. Patterson was well aware of her right to the legacy, and authorized and ratified the act of her husband in managing her business affairs (and in making installment collection on the legacy). Such a relation and authority extended to the date of her death in 1915. Thereupon the legacy became the property of the husband under the laws of Tennessee, subject to due administration. No administration was had in either state before July 16, 1924, when letters issued in Alabama to complainant. No debts of her estate are shown to exist during all this time. With a full knowledge of the facts, no affirmative action was taken for a final settlement of the legacy before the death of Mrs. Patterson. Thereafter further installments were collected in money or in the discharge of Mr. Patterson's obligations to 1918, when the latter, with Mr. Weaver, had what purported to fully settle the family affair by giving the $300 check (adverted to in the opinion of the learned trial judge), and it recited "For settlement in full of S. J. Weaver's will." If in fact that sum was less than the unpaid balance due on the legacy, with interest, no one knew the fact better than Mr. Patterson, and his delay until 1924 (just before his death), is binding on this administrator as laches. Family settlements are to be encouraged. Betts v. Ward,196 Ala. 248, 72 So. 110. And this settlement of 1918 will not be reopened, after the death of Mr. Patterson, on the ground that the recital in the receipt did not state the true facts, and that the collection of that check was not binding, for the reason that it was not on an adequate consideration.
The justness of the conclusion of the trial court is emphasized by Mr. Patterson's letter to Weaver of June 19, 1916, saying, among other things:
"I have only paid $100 so far on Laura's [Mrs. Patterson's, we interpolate] monument, and if you can see Mr. Ira and pay that note off right away it would be highly appreciated. I hate to have to ask for a loan here among strangers; so please do your best and I will certainly appreciate it,"
— and that by him from Greenville, Tex., of July 23, 1916:
"I have just received word that you had paid the $150 note, and I want to thank you for it. You have done the best that you could, and I am satisfied, and shall never say anything more to you about it. If you are prosperous, and should want to give some of my children something some time in life, then, very well; otherwise, I shall be satisfied," followed by the $300 check of 1918.
The foregoing, taken with the evidence of complainant challenging the purported indorsement on the cheek by J. H Patterson, and that of Weaver presenting the view that it was given and intended as a settlement indorsed and returned in due course, and the tendencies of evidence, that Mr. Patterson asserted that he had not been paid in full (that respondent had made such admission to the administrator), and the denials of Weaver of such admission, the asserted admissions by the administrator of the genuineness of Mr. Patterson's signature, and the explanation as to the payment of the $150 note of July 15, 1916, of Weaver to Mr. Patterson, the indorsement thereon, "In settlement of S. J. Weaver's will to Laura A. Patterson," and Weaver's explanation that this was only intended as a credit on said legacy, and was not considered "as a settlement in full," shows the futility of now ascertaining the exact facts, in the absence of the testimony of Mr. Patterson. It was he who accepted the check *Page 691 and delayed pressing the matter under such a set of circumstances and conflicting tendency of evidence, until the son qualified as administrator within a year from the date of the father's death. The letters were issued July 16, 1924, and Mr. Patterson died on May 14, 1925. The son stated that the father acquiesced in his action in taking letters of administration and signed his bond as such personal representative. Weaver told of his friendly or pleasant associations with Mr. Patterson after 1918, that no dissatisfaction was expressed or assertion of a balance due on the legacy, or that he desired or would seek disaffirmance of his act in apparently closing the matter by the acceptance of the $300 check paid through the Bank of Rogersville. This silence in assertion of the right, and his delay in instituting action, on the part of Mr. Patterson, from 1918 to 1924, and the further fact of his death before his evidence was taken in the clause, makes it necessary that the litigation be ended, and this family settlement be not reopened.
The bill was properly dismissed, and the judgment is affirmed.
ANDERSON, C. J, and BOULDIN, J., concur in the opinion on rehearing.
BROWN, J., states his limited concurrence, and SOMERVILLE and GARDNER, JJ., join therein.
SAYRE, J., concurs in the result.