Page:Federal Reporter, 1st Series, Volume 10.djvu/38

 26 FEDERAL REPORTER, �sons having declined. He took the oath required by the statute, and received letters testamentary on the sixth of December, 1865, flled Mb inventory on the nineteenth of January, 1866, and his first and. final settlement on the nineteenth day of July, 1872. �A decree for an accouht is a matter of course, and upon the single charge. ;thq,t an executor has proved the will may be founded every inquiry necessary to ascertain the amount of the esta te, its value and the disposition made of it, the situation of any part remaining un- disposed. of, the debts of the testator, and any other circumstances leading to the account rcquired. Desty, Fed. Proced. Eq. rule 73 and note, p. 303; Williams, Ex'ra, 1732; 2 Daniell, Ch. Pr, (4th Ed.) 857; Gresley, Eq. Ev. 168; Law y. Hunter, 1 Euss. 100; Walkerv^ Woodivard, la. 110. . And these authorities show that, as to the de- tails of the account, it is improper to introduce proof, except sueh as may'be liecessary to settle the principles whieh are to govem the master, uutil the cause is before him for that purpose. �In thus proceeding against an executor a court of equity treats "him as a trustee for the legateea and devisees to execute the trusts of the will. Williams, Ex'rs, 1717. Ile is an express trustee, and the stat- utes of limitation do not bar the remedy. Lafferty v. Turley, 3 Sneed, l^T; Givrr v. Lowe, 7 Heisk. 85 ; Decouche v. Savetier, 3 Johns. Ch. 190, 215, 222; Wallis v. Cowell, 3 Ired. L. 323; Taylar v. Benham, 5 How, 233, 276. Lapse of time, however, as in all other cases in equity, will, under certain circumstances, operate as a bar. Lupton v. Jan- ney, 13 Pet. 381; Burton v. Dickinson, 3 Yerg. 112; Piatt y. Vat- tier. 9 Pet. 416 ; McKnight v. Taylor, 1 How. 161 ; Maxwell v. Ken- nedy, 8 How. 210; Boone v. Ghiles, 10 Pet. 177. �Tbe common-law presumption of payment after 20 years furnishes the analogy most frequently applied: this bas been reduced to 16 years in Tennessee. Btackburn v. Squib, Peek, 60; Thompson v. Thompson, 2 Head. 404. But in Lafferty v. Turley, supra, 27 years was held not to defeat the right to an account in a case like this. In Burton v. Dickinson, supra, at the stating of the account between the parties those intefested were present, received their shares of the property, and executed receipts; and 12 years were, there fore, held to be a bar. So, in Lupton v. Janney, supra, there being no charge in the bill of any fraud againat the executor, it was dismissed, not hav- ing been filed until 12 years after the final settlement in the orphan's court. Here the executor made his first and only settlement on July 19, 1872, and this bill was filed July 7, 1876, less than four years after ; so that, if we adopt Mr. Justice Story's dictiim as announced ��� �