IN EQUITY.

#### Tate, administrator, &c. of John Bowman v. Greenlee’s administrators.

From Burke.

A bill was filed against executors, calling on them to account, after a lapse of thirty-five years. Motion to dismiss, on the ground of length of lime, refused ; because, though it would be the height of injustice to suffer dormant claims to be brought forward after an unrea« sonable length of time, when those, and those only, who could explain them, were no more, and no satisfactory reason could be assigned for the delay ; still, as in the case before the Court, the wife of the Complainant was the meritorious claimant; as she married in her minority, and immediat.-ly upon her husband’s death, made herself a party to the suit, the bill ought not to be dismissed, but should go on to a heaving.

The bill which was filed in 1815, by Tate, as administrator de bonis non, with the will annexed, of John Bowman, stated that John Bowman died in 1780, leaving James Greenlee, Charles McDowell, and John Greenlee, his executors •, that all were since dead intestate, and that administration had been committed to the Complainant ; that James Greenlee, one of the executors named in the will, took upon, himself the management of the estate of John Bowman, and had returned an inventory and account of sales, the amount of which was a large sum of money j that besides the property contained in this inventory, other property to a large amount same to the hands of Janies Greenlee, and had never been accounted for by him ; to-wit, a large number of cattle, indented certificates issued for property and services rendered the public by John Bowman during the war of the revolution, a quantity of tobacco, the rents and profits of certain lands belonging to John Bowman, and it was charged that several negroes bequeathed by the will of John Bowman to Mary Bowman, now th« wife of the Complainant Tate, were hired out by James *487Greenlee before bis assent to the legacy, and before they came into Complainant’s hands; that James Greenlee died in 1813, and the Defendants were Ids administrators, and possessed of assets sufficient to satisfy all demands ; that the Complainant had required of the Defendants to pay over to him the amount of Bowman’s estate which had come into the hands of their intestate, but that they had refused to do so. It was further charged, that the Defendants had in their possession all the hooks of accounts, and other evidences of John Bow - man ; also many memorandums and writings, which would disclose the certainty and amount of the several charges in the bill, and that the Defendants had refused to deliver them to Complainant, but fraudulently withheld them. The hill prayed particularly, that the Dc fendants might be compelled to disclose such facts connected with the charges of the bill as they had derived from papers in their possession, belonging to the esta*; of John Bowman, and also might be decreed to account

It was admitted by the Complainant, that for seven - teen years after his intermarriage with Mary Bowman, lie lived in the immediate neighborhood of James Green lee, and that Mary Bowman received the hire of the ne-groes mentioned in the bill — that Mary was the niece of James Greenlee, and married during her minority.

Wilson moved to dismiss the bill, on the ground of the great length of time which had elapsed, and stated it as the established doctrine, that where, a person sirens e-a his rights so long, that from human infirmity and (he dif ficulty of proof, the facts cannot be precisely ascertained, no recovery can be had, no matter what the length of time may be. This, he said, had been the settled rule for a century, and to shew its application in many cases, differing as to the length of time which had elapsed, he cited the following authorities — (JDeloraine v. Brown, S Uro, Cha. It 639- — Sturt v« Mellkh, ?, Mh La&m *488v. Briggs, 3 Mk. 1 05 — Mersey v. Uinwoodie, 2 Ves. jwu 92, et seq. — Pickering v. Stamford, ib. 582 — Morse v. Ry-all, 12 Ves. 374 — Thompson v. Blair, 3 Murph. 594 — Pre-Qrai~f g wheat. 498, 503 — Ellison v. Mobbit, Í Johns. Ch. Rep. 46 — Rap v. Bogart, 2 Johns. Cases, 432 — Raynor v. Pearsall, 3 Johns. Ch. Rep. 582.)

If it be said Complainant was an infant- — an infant suitor is bound by laches in a suit- — (13 Ves. 396.)

Gaston in answer, said, that length of time was not conclusive ; it was but evidence raising a presumption, and might be rebutted by proof — (Pickering v. Stamford, 3 Ves. 272, 582.) Length of time is not good, ipso jure, on a demurrer.

Hall, Judge.

Replication has been entered to the Defendant’s answer $ the parties have proceeded to take depositions. The cause has been set for hearing, and transferred to this Court for trial 5 and at this stage of it, a motion is made to dismiss the bill, on account of the length of time which has elapsed from the death of John Bowman, until the filing of this bill. This motion might as well have been made when the suit was first instituted, as at this time, because on such motion, the matter contained in the bill only can be examined. The Defendant’s answer cannot be taken into view, because it is replied to •, nor the depositions, because doubtful and disputed facts should be submitted to, and decided by a Jury. Notwithstanding this, if a sufficiency appears upon the face of the bill to warrant a dismission of it, it ought to be done.

The bill states that John Bowman departed this life in the year 1780, and this suit seems to have been brought In the year 1815, after a lapse of about thirty-five years. 3t would be the height of injustice to suffer dormant claims to be brought forward after an unreasonable length of time, when those and those only, who could *489explain them, were no more, and no satisfactory reason eou;d be assigned for such delay, in the spirit of this .remark, the conduct of Complainant’s husband in not sooner asserting the rights of his wife to the property claimed by tiie bill, (in case she had any,) cannot be viewed with an indulgent eye; because it seems, that after his intermarriage with Complainant, he lived thirteen years within two miles of Defendant’s testator, and did not commence this suit until about two years after Ms death, although he had as perfect a knowledge of all the transactions between them (except as to the cattle) as he had when this suit was instituted.

But we must keep it in vipw, that the wife was the meritorious claimant $ that she intermarried with William Tate in her minority, and that after the death of her husband, (the first moment she became a free agent) she made herself a party to this suit; for this reason, f think the suit ought not to be dismissed, but made de-pendant upon facts hereafter to be ascertained at the hearing.

It may be, as has been argued, that Defendants are ignorant of the manner in which their intestate managed the estate of his testator, and cannot give anything like a definite answer to the allegations contained in the bill. For that reason, it is to be regretted that lie had not guarded against the event that has taken place, by having made a settlement with Complainant and her husband during their lives, which he amply had it in his power to do.

For all these reasons, I think the bill should not ho dismissed, but should go on to a hearing.

Tavxor, Chief-Justice, and HuvueusoN, Judge, concurred.