Bull against Towson, 4 Watts & Serg. 557

The opinion of the Court was delivered by Huston, J. — This case presented the following facts. John Root died in Chester county about the year 1800, leaving issue Margaret, Samuel, John, William, Sarah and Elizabeth. Ephraim Allen and William Ross administered on his estate, and on the 17th of March 1801, Thomas Bull and Richard Templin were appointed guardians of his children, six in number. Sarah’s age was stated to be four years. The administrators settled several accounts at different times, from 1803 up to 1815.

Previous to the second settlement Allen had sold a tract of land to pay debts, and had been at prior settlements in advance to the estate. After the sale of the land, some of the heirs, who were of age, settled with the administrators and guardians. This was about 1811. An application was made to the Orphans’ Court to divide or appraise the remaining land. The inquest found it could not be divided, and appraised it. The heirs all refused to take it at th.e value put on it by the inquest, and it was in due form sold by the administrator and purchased by John Root, one of the heirs.

He had made a contract with a Mr Galt to be partner in the purchase, and he and Galt paid part of the first instalment. The deed, however, was made to John Root alone. This was about 1813. Galt was dissatisfied; .and in 1814 agreed to give up hi's interest, and John Root sold a part of the land and repaid to Galt ■what he had paid. We know no more about this, except that a few years after the land was sold from John Root by the sheriff, but whether for the remaining instalments or not does not appear on our paper-book.

The widow was alive, and one-third of the purchase money was left in the land to pay the intei’est to her during her life. She died about 1834 or 1835, and then this third became due and payable to the several heirs. In the mean time Thomas Bull and Richard Templin settled their account as guardians, on the 3d of May 1813. No exceptions were filed, and at August term 1813 it was confirmed. By this account a balance was found due the guardians of £117 19s. Id. This was the balance on their whole account.

They seem to have made a separate settlement with each as they came of age; for William Root swears they made a final settlement with him in 1811. Col. Bull, the surviving guardian, however, paid about $46 to each of the two youngest children in the spring of 1815, as was admitted and will appear. Sarah Towson was the youngest, and then single. , When land is appraised and sold on petition of the heirs, the ! sale is made by the administrator; and when the price comes into his hands, if any debt remains due by the estate, he pays it and divides the surplus among those entitled by law.

The administrator paid the guardians the sum due them, and some other small debts. It seems to be proved and conceded that the administrator paid the elder children, they being all of age, but Sarah and Elizabeth. Col. Bull had no right to interfere between them and the administrator ; and as there is no proof that Allen received any more than the first instalment until after Sarah was of age and married, he had no right to receive any for her after she was of age or married, for her husband had then the right to demand and receive it from the administrator.

She was probably of age in 1816, and certainly married in September of that year. Her husband lived until about 1832. Col. Bull, the surviving guardian, lived until 1838. And after his death his administrators were cited in the Orphans’ Court to settle an account by Sarah Towson, then a widow. As 22 years had elapsed since her coming of age and marriage, the Orphans’ Court, it would seem, hesitated to grant a citation against the representatives of a guardian who had not been called to account for 22 years.

That court would have done right in refusing the application, and probably would have refused it, but an affidavit of William Root, her brother, was made, stating that Col. Bull, as his guardian, had paid him $284 in 1826, and in 1835 had admitted there was money due to Sarah. After some discussion the court directed an issue “ to try the question whether Thomas Bull, as guardian of Sarah Towson, received .any part of the balance appearing to be due on the administration account settled by E.

Allen, administrator of the estate of John Root, deceased, on the 9th of May 1815, and confirmed by the Orphans’ Court of said county on the 3d of August in the same year, and if so, how much of the said balance beyond the sum appearing to be due by the guardians on the guardianship account settled by the said Orphans’Court in 1813?” This cause was the trial of that issue. By the direction of the court the plaintiff declared for money had and received, and the defendants pleaded the general issue. The plaintiff showed the four administration accounts of E.

Allen, the last of which, confirmed 3d of August 1815, showed a balance to be accounted for of $2079.81. In this account the price of the land sold on the petition for appraisement, valuation and sale, was included. The plaintiff also showed the account of T. Bull and R. Templin, the guardians, filed in May and passed and confirmed 2d of August 1813, by which it appeared they were in advance for the estate £117 19s. lei. (Here his Honour recapitulated the evidence already stated.) All these papers were offered together and rejected. I do not say this was wrong.

It is embarrassing to a court to offer a dozen or more papers having no immediate connection with each other. In this case they were all offered either to show that Col. Bull had settled many years ago for all he received, or to show that William Root’s memory was not to be relied on; and these papers were all testimony in this cause for one or the other purpose. They were afterwards offered singly, and some received and some rejected, and bills of exception sealed. I go back to the first bill of exception.

The refusal to permit the defendants to read that part of William Root’s deposition given in the Orphans’ Court in which he had stated that Col. Bull settled his account and paid him $284 in 1826. There is reason to believe that in the hurry of a trial this was stated and understood by the court to have come out on cross-examination. It was so stated here, and authorities were cited applying to it in that point of view. In fact, after defendants had cross-examined him, the plaintiff again re-examined him, and he stated as above.

Besides, the doctrine in 1 Stark. 134, 135, sect. 22, if correct, is not applicable to the case before us, which, after a witness had been sworn in court, was simply to show that by his own deposition filed in the Court by which this issue had been directed, he had given a statement of the facts inconsistent with and directly contrary to what he had just stated to the jury.

The doctrine in Starkie speaks of cross-examining as to other and similar transactions with other persons, and if such examination is permitted, says you shall not disprove the truth of witness’s statement, for it would make trials interminable; bat neither Starkie nor any other author or court of which I have read or heard, has ever said you may not prove that the witness, either under oath or not, has related the facts trying in a different manner. Among many other cases, see 8 Serg. & Rawle 325 expressly in point, and 12 Serg. & Rawle 325. There was error in this.

In order to judge of the other bills of exceptions, we must see what was in issue and what plaintiff had proved. The issue was to try whether Col. Bull had received (not whether he could and ought to have received) any part of the balance appearing on the account of E. Allen, administrator, filed and confirmed in 1815. Col. Bull had been appointed guardian of these children in 1801. In this petition, Sarah, the plaintiff, is called four years old. The age there stat.ed will go for little when we see the age of William there stated at six years; and yet he swears he was 21 in 1811.

After a ward came of age the guardian could not rightfully receive, nor the administrator rightfully pay him any money for such ward. William had sworn in the Orphans’ Court, to obtain this issue, that Col. Bull had got and retained $284 of his money until 1826. He had asserted the same thing during the week of this trial, and though contradicted as to the time, he still stuck to the sum. It was competent, and strange it would be if it were not, to show, that instead of Col.

Bull settling with him alone and paying or sending him to Allen for above $200, the settlement was made by arbitrators, and the sum due, £15 3s. 4d., and paid to him by Col. Bull, and his receipt given in 1814, three years after he was of age; and to prove that Allen paid to himself in 1817 the whole of what was due to him until the death of his mother, and that this sum was $173.87; and it was competent to show the-calculation made for E. Allen by the deputy register, overlooked by the register and endorsed by Allen as the last statement of the moneys of J. Root’s estate.

Even a calculation from documents in court, made at the bar, showing that the sum paid and for which he gave a refunding receipt, was the correct one, might have been shown. It was not conclusive, but it could be shown in such a case as this. It went directly to show that Col.

Bull never received nor paid any money for this witness after the last sale; and it went directly to show that this main and only witness for the plaintiff swore directly contrary to the truth — either that he was determined to gain the cause for his sister, or that he had no sense of the obligation of an oath, or that he was literally of nonsane memory, and swore as prompted by a deranged imagination. Sarah was of age or at all events married in 1816, and her husband had a right to this money.

Any money received, if any such could be received after this, was received net as guardian, but to be paid over: he could have been sued for it in a court of law and was barred in six years. But there was evidence to prove that he never received a cent for her after 1815, when he paid on her order all he had.

Nay, the proof was that Allen, the administrator of her father, never got any, except a small part of the last bond, and it must have been by some curious system of casuistry that a man who had ceased to be guardian could be made answerable for the neglect of an administrator on whom he had no right to call and could not sue; to say nothing of the limitation of six years, within which this claim clearly was, and by which it was barred; for after a ward comes of age the fiduciary relation of a guardian ceases, and they stand as debtor and creditor.

Even in Equity Courts, 20 years is a positive bar by repeated decisions, founded on sound principles. See Foulk v. Brown, (2 Watts 209). If this can be altered by an admission of the trustee or a promise, and I do not say it can, after the lapse of time has run, yet if this promise is disproved, or if the witness makes it one thing at one time, and a little stronger the next, and if every sentence in the testimony of the only witness is positively disproved by documents, by the oaths of others, or by his own oaths at different times, the admission or promise cannot be believed, and length of time bars the claim.

In such a case, after such lapse of. time, every paper, statement, account, receipt or anything in the handwriting of the administrator or guardian relative to the matter in issue, if proved to have been made in the course of settling the estate by those whose duty it was to watch and check each other, as administrator and guardian, is evidence to be received in judging of the case. The issue is correctly ordered; for if Col. Bull never received the money sued for, his promise, if he ever made one, would be void.

It could only be binding on proof that he had funds; and how it can be believed that he received money from Allen, who never collected it, but left the bond of John Root the younger, with only a receipt on it for one-fourth of the amount paid, is not easy to see. When a feigned issue is directed by a Court of Equity, that court may grant a new trial or not. It would seem the Orphans’ Court have the power to direct as to future proceedings. Judgment reversed, and a venire de novo awarded.'