US SUPREME COURT DECISIONS

The executor of L. filed his accounts in the Orphans Court of Alexandria in 1816 and 1818 and settled his final account in 1821. No exceptions were taken to the accounts. In November, 1831, a subpoena was issued against the executor, and in June, 1833, a bill was filed by the devisee and legatee against the executor the object of which was to surcharge and falsify the accounts filed and settled in the orphans court. The bill did not charge the executor with fraud, but imputed negligence, which was alleged to amount to a devastavit. No reason was given or facts stated to excuse the long delay and laches in bringing the bill. Held that the lapse of time from the settlement of the accounts of the executor was a bar to this proceeding.

Nothing is more clear than the general rule that ex parte settlements of accounts by executors in the orphans court, being matters within the acknowledged jurisdiction of the court in the administration of estates, are prima facie evidence of their correctness, and the onus probandi is upon those who seek to impeach them. If they seek to impeach them, it should be by a suit brought, recenti facto, within a reasonable time, and at farthest within the period prescribed by the statute of limitations for actions at law on matters of account, or else assign some ground of exception or disability within the analogy of the statute to justify or excuse the delay. Otherwise it will be imputed to their voluntary laches, and relief will not be given by a court of equity.

A bill was filed on a subpoena which had issued from the circuit court on the fifth day of November, 1831, by Ann Lupton, the sole devisee and legatee of David Lupton the younger for the purpose of surcharging and falsifying the accounts of the executor, Phineas Janney, which had been settled in three accounts rendered by him to and allowed by the Orphans' Court of Alexandria. The first account was rendered and was settled on 26 October, 1816. The second account was settled on 16 April, 1818, and on 5 January, 1821, the executor rendered and settled his final account. The bill of the complainant was filed on 4 June, 1833.

The complainant alleged that the executor was chargeable with certain debts due to the estate of the testator which he had failed to collect, and for goods of the estate sold by him, the amount of which sales had not been paid to him. Certain credits had been given in the accounts of the executor to parties not entitled to them, and in an amended bill facts are charged which amounted to a devastavit which it was alleged were not satisfactorily contradicted by an amended answer. There was no imputation or charge of fraud in the executor, but it was asserted that gross negligence was to be imputed to the executor for which he was answerable de bonis propriis.

The answers of the defendant denied all the allegations in the complainant's bill material to charge him as executor of David Lupton the younger. chanrobles.com-red

Page 38 U. S. 382

The defendant also pleaded in his answer an amended answer as follows:

"This respondent admits that the complainant was not present at nor summoned to attend the said settlements. But he is advised and avers that the said settlements were legally made before a court having full jurisdiction in the matter in the due and regular exercise of its jurisdiction, and the respondent relies on the said settlements in bar of the jurisdiction of this Court, as a court of original jurisdiction in the case stated by the complainant in the same manner as if the same were specially pleaded."

Also,

"This respondent is advised that an Act of the General Assembly of the State of Virginia, passed 8 March, 1826, entitled 'An act for the limitation of actions against persons acting in a fiduciary character, and their sureties, and other purposes,' is a complete bar to any proceedings against him in that state, and was so when the said amended bill was filed."

In November, 1838, the circuit court made a decree dismissing the complainant's bill, from which decree this appeal was prosecuted. chanrobles.com-red

Page 38 U. S. 385