58 N.C. 392 | N.C. | 1860
The bill was brought against the executrix of James P. Whedbee, as guardian of the plaintiff, for an account and settlement. The defendant's testator entered in as plaintiff's guardian in 1831 and continued in the office until 1845, when the plaintiff, having lately become of age, he surrendered the estate to him. At the time of delivering up the property, the guardian took from the plaintiff a written instrument, which is as follows:
"I, James N. Whedbee, have this day settled with James P. (393) Whedbee, my guardian, and have received from him all the funds that he has received for me as my guardian, and I do hereby release the said James P. Whedbee from all claims and demands arising from any obligation he may have incurred as my guardian. In testimony whereof, I have hereunto set my hand and seal." Signed and sealed by the plaintiff in the presence of witnesses.
The plaintiff alleges that he was very young when this instrument was given; that it was not done upon a full settlement and examination of the state of the business; that the guardian was a relation, and, being childless, he had often promised he would make him the sole heir of his estate, and had a will prepared to that effect, by which promises and by other means he acquired much influence over the plaintiff and induced him to receive, without question or examination, his account of the state of the guardianship and to give the instrument above set forth; but that the same is delusive — made without a fair exhibit of his liability and drawn from the plaintiff by the unfair influence which the guardian exerted over him. The bill goes on to specify many particulars in which the guardian rendered him no account, and others wherein the account rendered him was false, being made too small, and prays that, notwithstanding such partial settlement and release, his guardian may be forced to come to a fair account with him and pay over the funds in full.
The defendant answered, and also pleaded the release and the length of time between the settlement and the bringing of this suit (which was in the spring of 1853), and insists upon it as a bar in analogy to the statute of limitations for a money demand at law. *310 This is a bill filed by the complainant against the executrix and executor of his former guardian for an account and (394) settlement of the guardianship. It was filed nine years after the ward had arrived at full age and eight years after he had had a settlement with his guardian, payment in full, according to the account then rendered, and a release.
We think it was too late to demand a readjustment of the guardian accounts.
A release taken by a guardian from his ward upon a settlement soon after the ward's arrival at age is looked upon with some suspicion in a court of equity, and would not be regarded as conclusive, provided the ward make his appeal to the courts in proper time. The parties to such a settlement bear relation to one another of control and dependence, respectively, which make it unfit that it should be conclusive. But it would be equally hard, on the other hand, after the guardian had tendered and made a prompt settlement, that there should be a right in equity indefinite in time, to call him into court and reopen the accounts. We think that time must be limited, and as a bill for an account is similar to, and in many respects a substitute for, the old action of account, we limit the time to three years from the period when the trust was closed.
So much has been said recently in our reported cases upon the effect of time on closed and unclosed trusts, respectively, that I deem it unnecessary to repeat it here further than to say it may now be considered as a settled general rule with respect to closed trusts, that they are subject to the statutory and common-law presumptions and the statute of limitations, which the class of unclosed trusts is not. Falls v. Torrence,
We are of opinion, therefore, that the equitable right remaining in complainant after the settlement in 1845 was barred by the lapse of threeyears in analogy to the bar to the action of account.
PER CURIAM. Bill dismissed with costs.
Cited: Barham v. Lomax,