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"When an executor undertakes to construe the provisions of a will or to make payments thereunder in anticipation of the decree of distribution he does so at his peril." While the facts herein distinguished this case from that, still it may be conceded that, if said Samuel Pratt made a settlement with his father without an order of court, he did so "at his peril," and that he could not thereby forestall an accounting in court, yet under the circumstances of this case we deem it not an unreasonable inference that he did make such settlement, believing that he was justified in so doing, and we think it cannot be said that thereby he violated his duty or transgressed any provision of the law.

The findings as to the staleness of the claim and the laches of plaintiff may be considered together, as they are closely related. [3] Appellant is clearly right in the contention that laches, unlike the statute of limitations, is not a mere matter of time. It involves and implies some other circumstance or circumstances that would render inequitable the enforcement of the claim. This may be a change in the relations of the parties or the condition of the property that is deemed a justification for the denial of any relief. It may be added, though, that the great lapse of time, especially if the claimant has knowledge of the existence of his right, is often held sufficient to create the presumption or implication of another fact of an equitable nature, and thus to justify a decision against the claimant. As to the character of this defense and the reasons for its recognition and enforcement, it is sufficient to refer to the carefully considered opinion written by Justice Hart and adopted by the supreme court in the case of Miller v. Ash, 156 Cal. 544, [105 Pac. 600].

To illustrate, however, the peculiar views of various courts concerning situations similar to the one before us, we may cite some instances of the application of the doctrine of "staleness" and "laches."

In Perkins v. Cartmell, 4 Harr. (Del.) 270, [42 Am. Dec. 753], a legacy was involved for which no demand had been made for thirty years and the court said: "This suit is barred by lapse of time independently of the statute of limitations, upon the presumption of payment and satisfaction, which presumption is not rebutted. The defense founded. upon mere lapse of time and the staleness of the claim, in cases where no statute of limitation directly governs the case,

is said by Judge Story (2 Com. on Eq. Jur., sec. 1520, p. 904), to be a defense peculiar to courts of equity. Upon general principles of their own, independently of the statutes of limitation, they have always discountenanced laches and neglect; and refused their aid to stale demands where the party has slept upon his right, or acquiesced for a great length of time. After a considerable lapse of time, they refuse to interfere, from considerations of public policy, and the difficulty of doing entire justice when the original transactions have become obscure by time and the evidence may be lost."

There was something like twenty years' delay in demanding an accounting in the case of Osborne v. O'Reilly, 43 N. J. Eq. 647, [12 Atl. 377], and the court said: "This great delay might have justified the court in dismissing the complainant's bill without looking at the merits. It certainly requires of the court to take care that the dangers of injustice, which always attend the investigation of facts long since transpired are not overlooked, and that before disturbing the status acquiesced in by both parties for so many years very convincing evidence of the propriety of a change shall be adduced."

In Le Roy v. Bayard, 3 Bradf. Sur. (N. Y.) 228, it was held that the lapse of twenty-nine years since the administration of the estate commenced is sufficient to excuse a formal inventory and account.

In Calhoune's Appeal, 39 Pa. St. 218, the court determined that since the devisee and her heirs knew for twenty-five years of the mismanagement of the estate but required no accounting nor sought any relief they were not entitled to the aid of a court of equity, after having so slept on their rights, the court saying, however: "Had there been ignorance of facts or legal disabilities to account for the extraordinary neglect of legal remedies on the part of the appellants, their inaction might have been excused, but nothing is shown or suggested by way of excuse."

In Gatewood v. Gatewood's Admx. (Ky.), 70 S. W. 284, ten years after the death of an administrator suit was brought against his estate for a sum claimed to have been retained by him belonging to plaintiff, the claim being thirty years old, and it was held that the claim was stale and not enforceable in equity.

In Hill v. Hill, 70 N. J. Eq. 107, [62 Atl. 385], the court of chancery held that the lapse of seventeen years was sufficient to bar an application for an accounting of an administrator. The court declared that the complainants were "chargeable with notice that they were entitled to a prompt accounting, which is precisely the remedy which they are here asking. Not only do they not allege their ignorance in these matters, but it is quite impossible to believe that they were so far indifferent to their pecuniary rights as not to be informed that the time had arrived when they were entitled to receive from their father's estate more than they did actually receive unless the same was absorbed in the payment of debts. The complainants, then, are chargeable with resting on their rights for about seventeen years without the least excuse whatever. In the meantime it is fair, I think, to infer that the vouchers and papers relating to the estate, which must have been in the hands of their uncle, John, have been lost or mislaid, and are not now available to the answering defendant."

In Re Henry's Estate, 198 Pa. 382, [48 Atl. 274], it was held that an application for an accounting of an administrator was barred by the lapse of eighteen years, the court saying that the case was "made much stronger by reason of the death of the person whose liability to account is now asserted." Therein the court cites with approval the case of Gress' Appeal, 14 Pa. St. 463, wherein an account was refused after the lapse of eighteen years "not because of either presumption of payment or settlement, but because it resulted altogether from the unwarrantable negligence of the party to call for an account without offering any sufficient reason accounting for the delay."

In Phillips v. Piney Coal Co., 53 W. Va. 543, [97 Am. St. Rep. 1040, 44 S. E. 774], a delay of ten years was held sufficient to bar an action to reform a deed, and the court declared that a party who seeks to avoid the charge of laches in such case "should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim, how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance; and how and when he first came to a knowledge of the matters alleged in his bill; otherwise the chancellor may justly refuse to consider his case, on his own showing without inquiring

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whether there is a demurrer or formal plea of the statute of limitations contained in the answer."

In Preston v. Preston, 95 U. S. 200, [24 L. Ed. 494, see, also, Rose's U. S. Notes], the suit was brought twenty-five years after the right accrued and the court said: "The delay of one to this extent in prosecuting his rights under a contract is, except under special circumstances not existing here, such laches as disentitled him to the aid of a court of equity."

In Pusey v. Gardner, 21 W. Va. 469, it was held that a court of equity will not set aside a deed, made by a daughter to her father immediately before her marriage, conveying her remainder in land, in which the father had a life estate, upon the ground of undue influence after an interval of thirty-five years and after the death of the father, though the claim of the daughter is not barred by the statute of limitations, where the case is not a clear one and there are no circumstances which sufficiently account for the delay. Therein was quoted the following statement from Kerr on Fraud and Mistake, section 305: "Lapse of time, when it does not operate as a positive statutory bar, operates in equity as an evidence of assent, acquiescence or waiver."

Other cases to the same effect are available, but they need not be cited.

Appellant finds comfort in certain other decisions, which he claims to be essentially in conflict with the cases upon which respondent relies. But it can hardly be said that they teach another doctrine, although some of them present a different view of the burden of proof. One of them is the carefully considered case of Depue v. Miller, 65 W. Va. 120, [23 L. R. A. (N. S.) 775, 64 S. E. 740], wherein the West Virginia supreme court of appeals declared it to be a sound doctrine that "mere forbearance to compel rendition of a just debt or other right, the existence of which is clear beyond doubt, does not prejudice the party from whom it is due, and it is not inequitable to enforce rendition thereof after long delay; but if the length of time be long enough in itself, or with the aid of circumstances and conduct to satisfy the chancellor that the plaintiff had abandoned his right before he brought suit to enforce it, his demand will be regarded as stale and lost by laches." However, the court held that the claim therein was fully proven by documentary evidence under circum

stances not in any way operating to the prejudice of the defendants and tending to negative the inference of intent on the part of plaintiff to abandon or relinquish his right, and concluded that the delay in the assertion of the right for a period of less than twenty years would not bar relief.

In Glen v. Kimbrough, 58 N. C. 173, the action was held not to be barred by the lapse of thirty-four years, but the decision was based upon the ground that there was no representative of the estate against which the action could be brought. The court, however, recognized the rule to be that after the lapse of a long period of time a presumption will arise "of payment or satisfaction or abandonment; but this presumption is one of fact, and is rebuttable, and where it appears it has not been settled, or where it appears there was no one with the legal power to make a settlement, the presumption is rebutted."

In the Estate of Fischer, 189 Pa. St. 179, [42 Atl. 8], the main question was as to the validity of a certain release, and it was justly held that the lapse of seventeen years did not bar the claimant from seeking to avoid the effect of said. release on the ground that she imperfectly understood English, did not comprehend the meaning of the terms employed, and was induced to execute it by reason of certain threats which were made. It was in view of these circumstances that the court said: "There is nothing, therefore, left to sustain the plea of laches but mere lapse of time; and that is clearly insufficient."

In Wilson v. McCarty, 55 Md. 277, it was held that the orphan's court had jurisdiction to compel a surviving executor to return assets of the estate or recover them where they could be recovered even where an account called final had been allowed and some fourteen years had elapsed since such account. The court said this could be done within a reasonable time, and "what is reasonable time depends upon the peculiar circumstances of each case, and the character of the correction to be made."

In Werborn v. Austin, 82 Ala. 498, [8 South. 280], the court recognized the presumption of payment from the lapse of twenty years in the case of a trust but held that it was overcome by evidence to the contrary.

In Branch v. Hanrick, 70 Tex. 731, [8 S. W. 539], suit was brought August 11, 1885, against one who had been appointed

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