Harrison v. Gibson

• Decision Date: 12 March 1873
• Citation: 64 Va. 212
• Court: Virginia Supreme Court
• Parties: HARRISON & als. v. GIBSON & als.

64 Va. 212

HARRISON & als. v. GIBSON & als.

Supreme Court of Appeals of Virginia.

March 12, 1873

1. The decided cases do not fix any period as limiting the demand for an account. If from the delay which has taken place, it is manifest that no correct account can be rendered, that any conclusion to which the court can arrive, must, at best, be conjectural, and that the original transactions have become so obscured by time and the loss of evidence and the death of parparties, as to render it difficult to do justice, the court will not relieve the plaintiff. If under the circumstances of the case it is too late to ascertain the merits of the controversy, the court will not interfere whatever may have been the original justice of the claim.

2. A bill by husband and wife, in right of the wife, is the bill of the husband; and the wife is only joined for conformity. The coverture of the wife is not, therefore, an excuse for delay in bringing the suit.

3. Though a delay of fourteen years after a right has accrued does not create a statutory bar, it will, in connection with other circumstances, be very persuasive against the justice of the claim. Relief refused in this case.

By deed bearing date the 7th day of April 1808, and duly admitted to record in the clerk's office of the County court of Prince William county, Beverly R. Wagoner, of said county and Margaret S. his wife, conveyed to John Gibson of Orange county, four tracts of land in Prince William and Fauquier counties, and eight slaves by name, two of them men, three women, and the three children of one of them, and all his other personal property, upon trust, that Gibson shall in the first place, proceed to sell so much of the said estate, real and personal, as will be sufficient to discharge all just debts due from the said B. R. Wagoner, and that are due and recoverable from the estate of Benjamin Harrison, deceased and shall allow unto him, during his natural life, a genteel support out of the proceeds of said estate; and the residue of the proceeds of said estate shall, during the life of the said Margaret S. Wagoner, be paid unto her yearly, and every year, for her use; and upon the death of the said Margaret S Wagoner, the said Gibson, his heirs, & c., shall convey to the child or children she may leave, in fee simple, all the before mentioned estate, interest and property of every description, which may be living at the time of the death of the said Margaret S. Wagoner, by even or equal portions; or in case of the death of any child or children of said Margaret S. Wagoner, during her life, such child or children leaving issue, then on the death of the said Margaret S., to convey to such grand-child or grand-children the portion of said estate to which the father or mother of such grand-child or grand-children would have been entitled to under this instrument, had he or she survived the said Margaret S. Wagoner; reserving to the said B. R. Wagoner, in case of his surviving the said Margaret S., during his life, the support before mentioned.

Beverly R. Wagoner died in 1809. Gibson undertook the trust, and seems to have sold before 1816 three of the tracts of land and one of the male slaves. In April 1816 the County court of Prince William made an order by which J. Lawson, commissioner of the court, was directed to settle and report the account of John Gibson, as trustee under the deed from B. R. Wagoner; and in May of the same year the commissioner returned his report. In this report Gibson is charged with the price of the slave and the price of the three tracts of land; though the deeds for the land are dated after the return of the commissioner's report, and express only the consideration of five shillings. Upon this settlement, Gibson is found to be in advance to the trust fund on the 31st of December 1815 $267 39-100. The commissioner also reports a debt due to John Gibson, jr., of $1,080.70, as of the 3d of April 1816. John Gibson, jr., was a lawyer, and the son of John Gibson, and he was employed by John Gibson, at a salary of $100 a year, to attend to the business in the courts, in which there were suits pending against Harrison's estate, and he was also to attend to the management and sale of the trust property; and his debt consisted of charges for services rendered to B. R. Wagoner before the creation of the trust, a debt due by judgment against said Wagoner, and for his salary of $100 a year for seven years, with interest. The commissioner states in his report that he submitted it and the statement of the account to Mrs. Wagoner and her son-in-law, Mr. Russell Harrison, as the present representatives of B. R. Wagoner, deceased, for their inspection and examination. No particular exception was by them taken thereto, except as relates to the salary of $100 per an num allowed by the trustee to John Gibson, jr.; to which allowance they decidedly object.

At the May term of the court an order was made reciting that the account was returned to court and ordered to lay over; and at the June term, there was an entry, that the report, with the exceptions filed thereto, was taken up and argued by counsel; on consideration whereof the court doth overrule the exceptions, and confirm the report of the commissioner; and the report and account are ordered to be recorded.

Mrs. Wagoner had but one child, and she was married to Russell B. Harrison; and by deed bearing date the 16th day of February 1817, John Gibson, Mrs. Wagoner and Harrison and wife, for the consideration of $1,400 conveyed to John Gibson, jr., the remaining tract of land conveyed by the deed, which was called the Mansion house tract, and contained two hundred and eighty acres.

Both Mrs. Harrison and her husband died in the life time of her mother; the first dying in May 1823, and Mr. Harrison in November 1835; and they left four children, who were alive at the death of their grandmother, Mrs. Wagoner, in September 1840.

The only acts, so far as appears in this case, done by John Gibson, the trustee, after the settlement of his account in 1816, was that in December 1816 he enjoined the removal of the slaves out of the State by Mrs. Wagoner, and Harrison and wife. In this bill he charged that Russell Harrison had sold one of the slaves to a person who had removed her out of the State; and he said that Mrs. Wagoner was still young enough to have many other children. It was after this bill was filed that the deed last above mentioned was executed. And in 1830 Gibson sold eight of the slaves, one of them an old man purchased by Mrs. Wagoner for forty dollars. The slaves sold for $1,189 60-100, and of the proceeds $771 65 was applied to pay the amount of a decree recovered against Gibson as trustee; and of the balance all but $98 45 was paid to or for Mrs. Wagoner. Gibson died in 1833, without having settled any further account of his actings as trustee.

At the death of Mrs. Wagoner her grand-son, Wm. B. Harrison, was of the age of twenty-one years; one of the daughters was married in 1836, and another in 1838, both of them minors when they were married, but over twenty-one years in 1840; the youngest was married in September 1841, then a minor. After the death of Mrs. Wagoner these parties, or some of them, seem to have instituted actions at law against the persons in possession, to recover the land or some of it, sold by Gibson; and pending these suits, probably in 1846, John Gibson, jr., in a conversation with William F. Purcell, the husband of the oldest grand-daughter of Mrs. Wagoner, said to him--" I understand you intend to sue me or my father's estate, respecting these trust matters; if so, I wish you would do it at once, while I am alive and can defend it." He was dead when the suits were brought.

In April 1854 William B. Harrison, then living in the State of Ohio, William F. Purcell and wife and Bernard G. Hays and wife, then living in Washington city, filed their bill in the Circuit court of Prince William county, against the administratrix of John Gibson, jr., who had been one of the administrators of John Gibson, and the heirs of John Gibson, the elder, the administrator of J. C. Gibson, another administrator of John Gibson, the elder, and Thomas G Murray and Julia his wife, the said Julia being the youngest grand-daughter of Mrs. Wagoner, in which they set out the deed of trust and the settlement made by the commissioner in 1816, and the deeds made by John Gibson. They insist that the commissioner was not authorized, by the order of the County court of Prince William, to settle or state the claim of John Gibson, jr.; and the statement was therefore unauthorized and not evidence; and that the claim itself was utterly unjust and unfounded; that John Gibson was allowed by the commissioner 5 per cent. on his receipts; and to allow this charge would make the expense of administering the trust near twenty-five per cent. of the amount received; and they plead the statute of limitations to all but the four last items of the account. They refer to the three first deeds as stating only a nominal consideration, and made after the settlement of the account in 1816. They say that the price of only three of the tracts and one slave is charged in that settlement; and neither Gibson, in his life time, nor his administrators, having made any other settlement, the plaintiffs are left uninformed as to what became of the fourth tract or its proceeds of sale, and the other slaves. They therefore pray for a discovery from the defendants, and a proper settlement of the accounts of the trustee.

By an amended bill, they say that the plaintiff, Wm. B. Harrison resided in the State of Ohio in 1840, and had continued to reside in that state; and that at the death of Mrs. Wagoner the female plaintiffs were femes...