#### State on the relation of ABNER C. WILKERSON, Adm’r de bonis non of WINEFRED WILKERSON v. LEMUEL T. DUNN, and M. WHITEHURST, Ex’rs of B. M. WILKERSON.

Where an administrator holds a distributive share without closing up tire estate by a settlement and payment of the balance struck, the remedy of the distributee can only be barred by the common law presumption, arising from the lapse of twenty years.

Where an administrator files a settlement, setting out the admitted balance, and the matter is closed upon that footing, by a receipt in full of such balance, if the distributee afterwards seeks to impeach the settlement, he must do so within ten years, or he will be barred.

The common law presumption does not begin to run against one until he becomes of age.

Tins was an action of debt on an administrator’s bond, tried before Ellis, J., at Spring Term, 1858, of Edgecombe Superior Court.

The plaintiff declared on a bond executed by Benoni M. Wilkerson, the defendant’s testator, as administrator of one Winefred Wilkerson, in the sum of $500, dated in the year 1833, the execution of which is admitted.

*126Winefred Wilkerson resided in the county of Pitt, and died intestate in the year 1833, and at November Tefm, in the same year, of the County Court of that county, the said Benoni M. Wilkerson was duly appointed her administrator, and 'executed the bond declared on. The next of kin of the Said Winefred, were her four children, viz: the said Benoni M., the relator, Abner C., and Cockburn Wilkerson, and Nancy Brown, wife of one Lemmon Brown, and her three grand children, viz: John Wilkerson and Wm. Wilkerson, the only children of John Wilkerson, a deceased son, and William W. Stringer, an only child of-Stringer, daughter of the said Winefred. The said John, the elder, and Mrs. Stringer, both died in the life-time of their mother. All the next of kin lived in the State at the time of Mrs. Wilkerson’s death.

The said Cockburn Wilkerson, Lemmoin Brown and wife, and William W. Stringer, afterwards left the State, in, or before the year, 1837, and have remained away ever since; the latter was a minor when he left the State, and has not been heard of in twenty years.

John and William Wilkerson both died intestate during their infancy, and at November Term, 1843, of Edgecombe County Court, the said Abner C. Wilkerson was duly appointed administrator on their respective estates. #

The said Benoni returned an inventory and an account stated to February Term, 1834 of Pitt County Court, also an account current to February Term, 1836, of said County Court.

The account current exhibits a balance in his hands for distribution of $206.86, principal, and interest to .the first of February, 1836, after retaining for commissions the sum of $32.80 as charged therein.

The inventory omits the sum of $80 in money received by him from one Nancy Brown on the 30th of November, 1833, as of the estate of his intestate; also, a bed and furniture belonging thereto, worth $25, which he purchased at his own ■sale, nor did he charge himself with either in the account current.

Said Benoni M. paid Lemmon Brown and wife $34.00 on *127the 7th of January, 1837, and took from them a receipt of which the following is a copy:

“Rec’d January the 7th, 1837, of Benoni M. Wilkerson, administrator of Winefred Wilkerson, $34.00 in full for our share of said estate as heirs at lawn Signed,

Lemmon Brown, Nancy Brown.

Test — Wm. C. Leigh.

On the same day, Brown and wife executed a refunding bond under their hands and seals, which recites that Benoni M. Wilkerson had paid them $34.00 as their distributive share of the estate of Winefred Wilkerson, and that the payment was in full of all demands against the said Benoni M. as administrator of Winefred Wilkerson. On the first day of April, he paid Abner C. Wilkerson $41.00 as his distributive share, and took a receipt from him, acknowledging the payment to be in full of all demands, and releasing all right, title and interest in and to said estate. This was signed Abner C. Wilkerson.

On the 24th of February, 1844, he paid him as administrator of John and William Wilkerson $55.90, and took from him a receipt acknowledging the payment, releasing and discharging the said Benoni M. from all claim on him as administrator, in respect of the distributive shares of the said William and John. (Signed) Abner Wilkerson.

Said Benoni M. Wilkerson died in the month of January, 1855, and the defendants are his executors.

The relator, Abner C. Wilkerson, became administrator de bonis non of the said Winefred Wilkerson, at May term, 1856, of Pitt County Court, and commenced this action on the 10th day of November, in the same year, in the County Court of Edgecombe. It was referred to a commissioner to state an account of the estate of Winefred Wilkerson, and he reported to May term, 1857, of said Court. The commissioner charges the said Benoni M., with every thing that came to his hands as administrator, and the interest thereon, to the 30th of May, 1857, and credits him with his disbursements made in dis*128charging the debts of his intestate, and interest on the same to the 30th of May, 1857, and with the necessary expenses of administration, including an allowance of commissions at the rate of 5 per cent, on his actual receipts and disbursements, such commissions amounting to the sum of $12,81, instead of $32,80, as charged in the account current filed by him, February, 1836, leaving a balance to his debit of $720,85, making a distributive share thereof $120,31. He then credits him with the several payments made to Lemmon Brown and wife, and to the relator, Abner C. Wilkerson, in his own right as above stated, and the interest on each to the 30th of May, 1857; with $120,31, the full share of John and William Wilkerson, deceased, treating the receipt of their administrator for $55,90, as a release ; also, with the like sum of $120,31, being the said Benoni’s owm distributive share, leaving still a balance to his debit of $307,50, of which sum $141,07 is principal money ; of which said balance of $307,50, the said Cockburn Wilkerson ’and William W. Stringer’s distributive shares are each $120,31,’ Lemmon Brown’s in right of his wife, Nancy, $44,70, for residue of his distributive share, and the relator’s, Abner C. Wilkinson, is $22,18, for residue of his distributive share.

It is agreed that if the plaintiff is entitled to judgment at all, and there is no presumption of satisfaction, or that presumption is rebutted, then that said report correctly states the amount due, the several parties.

The defendants rely on the pleas of release — payment and accord and satisfaction, and contend that a presumption of a satisfaction arises from the lapse of time and other circumstances.

If the Court shall be of opinion with the plaintiff, judgment is to be rendered in his favor for $500,00, the penalty of the bond declared on, to be discharged upon the payment of $307,50 to the relator as damages for the breaches assigned, of which sum, $141,17 is principal, and to carry interest from the 30th of May, 1857, or for as much as the Court shall think the relator entitled to recover by reason of the breaches *129of the condition of the bond, and for the costs of suit, including $15,00 to the commissioner for taking account and making report — otherwise judgment to be entered for the defendants.

The Court adjudged on the foregoing ease agreed, that the plaintiff do recover the sum of $500, the penalty of the bond declared on, of the goods and chattels of the said testator, Benoni M. Wilkerson, in the hands of the defendants as his executors, and further, that the relator recover his costs of suit, to be taxed by the clerk, includingan allowance of $15,00 to the commissioner for taking account and making report— the whole to be discharged, however, upon the payment to the relator of $300,57, as damages, for the breaches assigned, of which sum, $111,07 is principal money, and to. carry interest from the 30th May, 1857, and his costs of suit. From this judgment defendants appealed..

Moore, for the plaintiff;

Rodman, for the defendants;.

Pearson, C. J.

The bond of an administrator is a security for the performance- of the trust reposed in. him, for and on behalf of the distributees; it follows that there can be no presumption of the payment or satisfaction of the bond, unless there is a presumption that the trust has been performed by payment of the distributive share, or that the right has been abandoned.

It is settled that the act of 1826, raising a presumption in ten years, does not apply to legacies and distributive shares, while the trust remains unclosed, aud the relation of trustee and cestui qui trust, by agreement of the parties, continues to exist; Salter v. Blount, 2 Dev. and Bat. Eq. Rep. 218; McLean v. Fleming, 5 Ired. Eq. Rep. 348; Cotten v. Davis, 2 Jones’ Eq. Rep. 430.

In the latter case, a distinction is-taken between an estate and a right in equity, and it is held that where an administrator holds a distributive share, without closing up the estate *130by a settlement and payment of the balance struck, the distributee has an estate in the fund, and his remedy can only be defeated by the common law presumption, i. e. the lapse of twenty years. But where an administrator files a settlement, setting out the admitted balance, and the matter is closed upon that footing, by a receipt in full of such balance, if the distributee afterwards seeks to impeach the settlement, on an allegation of fraud, or to surcharge and falsify the account, he is not considered as having an estate, but a mere right, which falls within the opei’ation of the act of 1826, and will be presumed to have been abandoned or satisfied, if nothing has been said or done in regard to it for ten years.

These cases, and those referred to in this discussion, put the subject of presumption from lapse of time on its true ground, and no further elaboration is called for.

In the application of the principles thus settled, to the case under consideration, there is error in the judgment rendered by the Court below, in several particulars.

1st. Benoni M. Wilkerson, as administrator, filed his account in February, 1836, showing a balance of $206.86, and upon the footing of that account, Brown and wife, and Abner C. Wilkerson, two of the distributees, settled and received their respective shares, and executed receipts and refunding bonds. This was done more than ten years before the commencement of the present action; consequently, there was a presumption of an abandonment of their right to surcharge and falsify the account, and the distributive share of each is presumed to have been satisfied under the act of 1826.

2d. Cockburn Wilkerson removed from this State about the year 1837; there is no evidence that he received the share apparently due to him, by the account rendered by the administrator; but it was rendered in February, 1836, and the writ in this case issued November, 1856, so, more than twenty years had elapsed, and the common law raised a presumption that his distributive share had been paid or satisfied in some way, or was abandoned; which presumption is made for the sake of repose, and to discourage “ stale claims.”

*1313rd. The only distributive share not disposed of is that of William Stringer. He left the State in 1837, and was then under age, and the presumption did not begin to run as to him until he arrived at age, consequently, the plaintiff was entitled to recover in respect to his share; Secrndl v. Bunch, 6 Jones’ Eep. 195.

Hpon the case agreed, the judgment in the Court must be reversed, and judgment entered for the penalty of the bond; the execution to be discharged by the payment of the amount of one distributive share, to wit, $120.31, with interest and the costs of the Court below. Judgment for the costs of. this Court in favor of defendants.

Per Curiam,

Judgment reversed.