Bruce v. Child

• Citation: 11 N.C. 372
• Court: North Carolina Supreme Court
• Decision Date: 30 June 1826
• Parties: BRUCE ET AL. v. CHILD ET AL.

11 N.C. 372

BRUCE ET AL.

v.CHILD ET AL.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1826.

1. When a bill is filed to surcharge and falsify an account stated nineteen years before, the delay must be well accounted for to repel the presumption arising from this acquiescence. For this purpose, it is not enough that the mistake sought to be rectified was discovered within a few months previous to exhibiting the bill, but it should appear why the discovery was not sooner made.

2. The bill alleged a certain sum received by the defendant, larger than that charged in the stated account. The defendant, in her answer, stated that her faculties were impaired by age and infirmities, and after so great a length of time since the transaction (about forty years) she could not speak with certainty to the matters charged in the bill, and said, in answer to the particular error alleged, that she believed the sum charged in the stated account to be the true one, and did "expressly aver that to be the sum she received from her attorney, J. N., and no other." The attorney, in his deposition, swore that he paid her the larger sum: Held, that the charge was sufficiently denied to bring the case within the rule, that a decree will not be made against a positive denial, on the unsupported testimony of a single witness.

FROM ORANGE. This was a bill filed 28 August, 1812, setting forth that the plaintiffs were heirs at law and distributees of John McKerall, late of Norfolk, Va., who died intestate, January, 1776, possessed of and entitled to a very considerable personal estate; that immediately upon his death the defendant, his widow, took possession of the personal estate, and on 21 October, 1784, took out letters of administration in Norfolk; that in 1785 the defendant intermarried with Child, who possessed himself of the estate of McKerall, and afterwards died, leaving the defendant his executrix.

That on or about 1 January, 1793, the plaintiffs, children of John McKerall, and William McKerall, another of the children who was made a defendant to the bill, and Mrs. Child, caused an account to be stated of the estate of John McKerall, whereby a balance of £2,057 6 7 was found to be due to the estate from Mrs. Child, and on 31 January, 1803, the plaintiffs received their shares under such settlement.

The bill then charged that in the settlement were divers errors, which were particularized. The only one material in the cause was that the executrix gave credit for the sum of £220 only, Virginia currency, as cash received by her from John Niveson, of Norfolk, when in truth she received £301 3 5.

It was further stated in the bill that the plaintiffs never discovered this error until six months before filing the bill; that letters of administration on the estate of John McKerall, within North Carolina, had been

granted to the plaintiffs, and that they had applied in vain to Mrs. Child to have the error rectified.

The prayer of the bill was that the defendant Mrs. Child might be decreed to rectify the settlement and account, and to supply and correct its errors and omissions, and pay to the plaintiffs what might be coming to them.

The account and settlement, which were made part of the bill, exhibited a balance due, as before stated, and contained also the following statement:

"We, Absalom Tatom and John Hogg, at the desire and request of the widow and heirs of John McKerall, heretofore of Norfolk, in Virginia, deceased, viz., Mrs. Frances Child, heretofore widow and administratrix of said John McKerall, deceased, but now widow of Francis Child, Esq., deceased, Miss Frances McKerall, daughter, and John McKerall and William McKerall, sons of the said John McKerall, deceased (the said William, who is a minor, appearing and consenting hereto by his brother John, as is suggested by said John), having proceeded to state and settle the account of Francis Child, Esq., deceased, who intermarried with Frances McKerall, widow and administratrix of said John McKerall, deceased, for his (the said Francis's) intromissions with the estate of said John McKerall, deceased, do, from the vouchers and statements handed to us by the parties, find the amount to stand as abovestated, by which it appears that the net amount of said estate in the hands of the executrix of the said Francis Child, deceased, on 1 January, 1793, was, etc. [Then follows a statement of the gross amount, and the share of each.] In which account we have not included or taken into view any charge the said Frances may have against the said children for boarding, clothing, and schooling, previous to and during her intermarriage with the said Francis Child, Esq. The said parties having, in our presence, assented to and signified their approbation to this statement and settlement."

This Was signed by Messrs. Tatom and Hogg, and bore date 13 August, 1793.

A receipt for their shares, signed by plaintiffs, and dated 1 January, 1803, followed.

Mrs. Child, by her answer (so far as it is here material), insisted on the great length of time which had elapsed since the accounts were settled by referees chosen by all parties; and as to the error in the sum received from Nevison, she stated that Nevison was her agent and attorney to settle and collect an account due from one Sheddon in Norfolk; that Sheddon had an account against her husband, McKerall, and that on the adjustment of these accounts by Mr. Nevison the balance due her husband's estate, as she believed, was £220, for which she had once accounted

to plaintiffs, and she expressly averred that, and no other, to be the sum received by her from Mr. Nevison.

As to the discovery of errors in the account by plaintiffs, but six months before the bill was filed, she denied it.

At March Term, 1824, of Orange Court of Equity, on motion of complainant's solicitor, the cause was referred to the clerk and master of that court to take the account and report to the next term of the court. At the following term the clerk and master reported that Mrs. Child had fully accounted for the estate of John McKerall, except as to the sum of £81 3 6,...