Summary
In Bailey v. Sayle, 206 Miss. 757, 40 So.2d 618 (1949), accounting and reports had been waived by the will involved, but the Supreme Court, on showing in the record warranting an accounting, remanded the case for accounting by the executor.
Summary of this case from Lambdin v. LambdinOpinion
May 23, 1949.
1. Executors and administrators — limitation of actions.
No statute of limitations runs against a legatee or the distributee of an estate pending the administration of the estate, that is, until there has been a final settlement by the administrator or executor or else a disavowal of the trust by him.
2. Executors and administrators — control of court until.
Until the estate has been closed and the administrator or executor has been finally discharged, he is regarded as an officer of the court and is subject to the control and direction of the court, and he is not entitled to invoke the statute of limitations as to any claim against him arising out of and during the course of the official relationship.
3. Equity — laches.
In legal significance laches is not mere delay, but is such delay as puts the opposite party at a disadvantage or hardship in making his defense, such as from the loss of evidence, change of title, intervention of equities and other causes, each case being governed chiefly by its own circumstances.
4. Executors and administrators — suit against — laches.
Although a suit by a legatee against the executor was not instituted until the elapse of nearly 28 years, yet if the only disadvantage claimed by the executor because of the delay was that one of his bookkeepers had died and that he, the executor, could not remember details so far back, the defense of laches was not available when the testimony which the deceased bookkeeper would have given could be supplied by other witnesses and when it was shown that the memory of the executor was good as to all items to his advantage to remember, and bad only as to those which he wished to forget.
5. Appeal — reversal — amount to be decreed uncertain — remand.
When it has been determined on appeal that appellant is entitled to a monetary decree but the data supplied by the record is in some respects uncertain, the cause will be remanded in order that the trial court may fix the amount after a full hearing on that issue.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Yalobusha County, HERBERT HOLMES, Chancellor.
Stone Stone and Creekmore Creekmore, for appellant.
The general rule with reference to limitations is well stated in 21 American Jurisprudence, page 658, as follows: "Section 495. In the absence of statute fixing the term of an administration, an executor or administrator is not generally relieved from being called to account in the probate court by the mere lapse of time without any action by the court. Even after the lapse of many years, the beneficiaries are entitled to an accounting. Statutes of limitation do not ordinarily run in favor of a personal representative so as to bar an action for an accounting. Before he can claim the benefit of the statute, the continuance or continuity of his office must in some way be interrupted, as by judicial discharge, disclaimer or breach of trust. The reason for this doctrine is that his trust is a continuing one. He has many duties to perform in administering the estate and is presumed to be engaged in performing them in subordination of his trust, and not to be maintaining an attitude hostile to his cestui que trust. . . . It seems that the statutory period is to be computed from the time when an action for an accounting might have been brought." The Mississippi cases sustain the rule announced in American Jurisprudence. Edwards v. Kelly, 83 Miss. 144, 35 So. 418; Peebles, et al, v. Acker, 70 Miss. 356, 12 So. 248; Cooper v. Cooper, 61 Miss. 676.
In this case the evidence shows that D.B. Sayle was named as executor in the will of Mrs. Lucy A. Sayle and after her death he assumed to act as executor and attempted to have the will probated. The testimony shows he made a settlement with two of the legatees and by mutual agreement with his sister, Mrs. Bailey, he continued in possession of the estate and was to handle his sister's one-third interest therein. It was not until 1946 that Mrs. Bailey first called upon her brother for a settlement of her share in the estate. The evidence is clear that not until 1946 when D.B. Sayle forced an administration of the estate of Mrs. Bailey's husband for the purpose of collecting a note against said estate did Mrs. Bailey lose faith and confidence in her brother. The evidence shows that she then called upon him for an accounting of the estate, and later employed attorneys who made written demand for an accounting and settlement. We say in all earnestness that the cause of action accrued in the year 1946, when for the first time, demand was made for a settlement. These facts are not contradicted by Mr. Sayles but instead are corroborated by him.
34 American Jurisprudence — Limitation of Actions, Section 176, states the rule as follows: "Various classes of persons have been held to be trustees within the meaning of the rule that the statute of limitations ordinarily runs against a trust only from the time of its repudiation or termination. Thus, it has been held that an executor or administrator is the trustee of an express trust in whose favor the statute of limitations against an action by the beneficiaries will not run until there has been an accounting or repudiation of the trust by him."
Section 177 states: "Where it is contended that the statute of limitations was set in motion by the repudiation of a trust, it is essential in order that he may claim the benefit of the statute for the trustee to show a plain, strong and unequivocal renunciation."
The chancellor in rendering his opinion seemed to base his ruling that the statute of limitations applied, upon the fact that Mr. Sayle had furnished to Mrs. Bailey a list of the assets of the estate. This could amount to no more than the filing of an inventory showing the assets of the estate. It could in no circumstance be construed as a final account, or a repudiation of the trust. We think the giving of the list of the assets to Mrs. Bailey was for her information and amounted to an acknowledgement that these assets had come into the hands of the executor, and for which he would be responsible upon a final settlement. Moreover, the evidence shows that Mrs. Bailey a few days after the death of her mother in a meeting with Mr. Sayle and other heirs agreed that she would leave her one-third interest in the estate as it was, or in the hands of her brother for handling. Mrs. Bailey said she had read the will and knew that her brother was the executor and it seems to us that this is a case where both parties knew that Mr. Sayle was named as executor; that he took charge of the estate with the consent of both parties and held same in trust as to Mrs. Bailey's interest for a long number of years. It seems clear that this was an open, acknowledged and subsisting trust, as to which the statute of limitations would commence to run only, upon its positive repudiation by the trustee, or upon a settlement with the beneficiary of the trust.
The case of Hook v. Bank of Leland, et al, 134 Miss. 185, 98 So. 594, is in point.
In Stanton v. Helm, 87 Miss. 287, 39 So. 457, the court recognized the rule that limitations do not run against an express trust so long as the trust is acknowledged or the trust agreement subsists. It further held that in order to set the statute in motion there must be some express declaration or act adverse to the recognition and existence of the trust, and the beneficiary actually advised of the repudiation of the trust.
In Cooper v. Cooper, 61 Miss. 676, the court said: "The statute never runs except against a cause of action, and a cause of action implies not only the existence of a right but such denial of it, either actual or constructive as puts the party entitled under a necessity to act if he would preserve it. An open, subsisting, and acknowledged trust is not within the operation of the statute. . . ."
The defense of laches seems to be the main argument advanced by appellee. If the mere lapse of time were sufficient to invoke this doctrine, we might have a more serious question of law. This, however, is not the rule for the mere lapse of time, no matter how long continued, will not constitute laches unless conditions have so changed that it would be inequitable to permit the suit to be maintained. Laches amounts to an estoppel and there must be some facts which estop a person from prosecuting a suit before laches can be invoked as a defense.
According to Mr. Sayle's own testimony, a few days after the death of Mrs. Lucy A. Sayle he met with Mrs. Minnie S. Bailey, David Moore and Emily Moore and at that time, and at that meeting, he made a complete settlement with these three named legatees. Mr. Sayle claims that this was the time and place when the settlement was made. He said: "Minnie, Emily Moore and David and myself met over here and divided this thing up. They took all the tangible assets and I took the balance of the estate." He said that this was done a few days after death of his mother. That this settlement was made with the three legatees and the facts show that he took receipts from Emily and David Moore, but he did not claim to have taken any receipt from Mrs. Bailey. The important thing here is to remember that Emily Moore and David Moore were present at this meeting when he claims to have settled with Mrs. Bailey. In other words the only witnesses present at the meeting were living at the time of the trial and available as witnesses. If the record showed that these witnesses were dead and their evidence not available, then the question of laches would be serious, but when the only witnesses to the transaction are living and available, we fail to see how laches can be seriously considered by the court.
The evidence further shows that Mr. Sayle admitted that he hasn't paid his sister anything. The books introduced in the evidence are of no help in this law suit. They were kept in such a manner that no one could tell what they meant. As said by the learned chancellor in his opinion these books "are so confusing you cannot tell whether it is Mr. Sayle's books, or whether it is Sayle Bryant Co. books, or whether it is Mrs. Bailey's he is dealing with. In fact he has covered up all the way through and the court only wishes there was some way we could reach him." Sayle, however, did give direct and positive testimony that these books had nothing to do with the alleged settlement made by him with his sister.
The leading case on laches is Comans v. Tapley, 101 Miss. 203, 57 So. 567. The court said: "Its object is to exact of the complainant fair dealing with his adversary. According to Mr. Pomeroy, with whom we fully agree, this doctrine cannot be more concisely and accurately stated than in the language of Stiness, J. in Chase v. Chase, 20 R.I. 202, 37 A. 804: `Laches, in legal significance, is not mere delay but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side and injury therefrom on the other it is a ground for denial of relief.'"
In the late case of Sample v. Romine, 193 Miss. 706, 8 So.2d 257, the court said: "Appellants say appellee is barred by laches in asserting his rights. Aside from statutes of limitations, laches, in a legal sense, is not merely delay, but delay that results in injustice or disadvantage to another. Time is only one element. There must be some other element than mere passage of time, some element of estoppel or change in conditions or relations of the parties, or intervention of rights of third persons, so that it would be inequitable to permit the party to then assert his rights. There is no absolute rule as to what constitutes laches or staleness of demand. Each case must be determined under its own peculiar circumstances." The above statement is quoted with approval in the case of Hudson v. Belzoni Equipment Co., et al, 33 So.2d 796.
The facts in Peebles v. Acker, 70 Miss. 356 are somewhat similar to the facts in the case at bar.
It is respectfully submitted that neither the statute of limitations nor laches barred the cause of action brought by Mrs. Bailey. It is true that she placed too much trust and confidence in her brother, but she did rely upon his honesty and faithfulness to his duty, and not until 1946 or 1947 did she call upon him for an accounting. The chancellor found upon the facts that Sayle had never made a settlement with his sister. He further found that Sayle had been dealing falsely with those who trusted him and had covered up his course of business operations so that no one could tell what the records meant. We respectfully submit that the decision of the lower court should be reversed and decree entered here for the appellant.
Cowles Horton, for appellee.
Most wisely we think the statute of limitations has become and is, for many reasons, a real favorite of the law. No principle of the law is better settled. Young v. Cook, 30 Miss. 320; Cooper v. Cooper, 61 Miss. 676.
There have been, of course, exceptions applied in cases in this court in matters of administration. The exceptions, however, have never been applied, we submit, under a will like the one at bar where the executor was never required to report or account in any court.
When we come to the exceptions and consider, with deference, the authorities cited by distinguished counsel we will find invariably that the parties sued early enough to avoid the statute of limitations after they had the right to sue at all. These authorities deal, of course, with their own peculiar facts in ordinary administration wherein reports and accounting had to be made to the court.
Distinguished counsel say that the outstanding case on which they rely is the case of Edwards v. Kelly, 83 Miss. 144.
21 American Jurisprudence, page 658, cited by counsel, deals with executors and administrators of the usual nature who are required to account and otherwise proceed as provided by law. The reason is that his duties are continuing and he is still in the course of administration and so regarded by all persons. Nevertheless, this very text is careful enough not only to limit what it says to ordinary cases but concludes as follows: "It seems that the statutory period is to be computed from the time when an action for an accounting might have been brought."
We, therefore, submit, with deference, that this authority squarely supports the learned chancellor for under it Mrs. Bailey was certainly barred after six years from 1920 or 1921.
Distinguished counsel say that the statute did not begin to run until Mrs. Bailey made this demand on Sayle. No statute of limitations so far as we know has ever made it material whether the person against whom it might be raised did or did not make demand for payment. As we understand limitations begin at the earliest time when the demand and suit may be made and we do not think there is any authority on which the person affected could avoid the statute on the ground that while he might have made his demand and bring his suit he actually did not do so.
Many cases, of course, may be found which declare that where a trust continues to be subsisting and acknowledge the statute does not run. Some of these authorities the learned counsel cite. With deference, however, such is not the case at bar and at no time after 1921, at least, could Sayle have defended any suit brought against him by Mrs. Bailey under any of the authority cited by distinguished counsel or involved in the class of cases referred to.
The court, we submit, should certainly consider here that no authority has been cited in a case like the one at bar nor which does not apply the usual and the general rule which pertains to trusts which are still in active operation. If this were not true the statute of limitations could never run in any case where the party sued was ever and at any time an executor, admistrator, guardian or trustee of any denomination. In other words they would all be placed in a class exempted from every limitation regardless of time, right to sue, laches, negligence and everything else. The learned counsel do not, of course, so argue but this, we think with deference, is exactly where their argument leads.
Every right entails, we think, a duty. Once a right to sue accrues there arises, we submit, a duty of the person who has the right to bring a suit within the time allowed. On no other basis could the law be fair to all parties. On this idea we have our doctrines of limitations, laches and requirements of diligence. In this case Mrs. Bailey, we submit, violated all of these requirements in waiting until 1948 to bring a suit which she might have brought in 1920 or 1921.
If we put to one side all the statutes of limitations the learned chancellor could still have done nothing else than to dismiss this bill. Mrs. Bailey was never diligent and idly sat and saw the principle of her laches growing bigger and stronger throughout these 28 years. During that time memories were fading, witnesses were dying or moving away. Nothing was done until after the death of Mr. Bailey and Mr. Bryant and there was no one left except herself and Sayle who then actually knew anything about the matter. Both of these parties were growing older all the time and when the case was tried Sayle was an old man, sick, confused, forgetful and the way he testified, rather than what he said, made a bad impression on the learned chancellor on the trial.
The doctrine of laches is well considered in the leading case of Comans v. Tapley, 101 Miss. 203, and dealt with also in the cases of Lake v. Perry, 95 Miss. 574, and Cox v. Mortgage Co., 88 Miss. 88.
Even in the Cooper case, 61 Miss. 676, supra, this court was careful enough to remind us of the principle in all cases of this kind. It said here: "Nevertheless, we are not to be understood as saying that there may not be cases in which, after an actual suspension of the trust, there has been such long acquiescence or delay on the part of the cestui que trust as to require the court to deny him relief upon the ground of laches."
Later on in the case of Norris v. Burnett, 108 Miss. 407, 416, the late Chief Justice Smith quoted and applied again the language just referred to.
Judge Griffith dealt in his usual splendid way with this very principle and makes this applicable observation: "A long or protracted delay is presumed to put the other party in a situation where it would be unreasonable to place him and equity looks with so little favor thereon that it will not entertain suit." Griffith, Sec. 33.
He also says (Secs. 41, 538) if it works an injustice to the other party the delay itself is fatal and that even in cases of fraud (Sec. 182) no case is made unless diligence has been shown.
Even in a suit to cancel on the ground of fraud and duress after having received payment of some installments a delay of nearly seven years in bringing the suit raised the bar of laches. Horn v. Beatty, 85 Miss. 504, and see the Cross case, 66 Miss. 61.
Sayle has never made an accounting or rendered any report to any court. It was never his duty to do so. His failure in this respect, expressly warranted by the will, was not the reason and Mrs. Bailey has never claimed that it was the reason why she did not sue. The fact is that she did actually sue in 1948 and that Sayle has never rendered her any other statement than the one in 1920 and no statement whatever, except by his answer to this suit, to any court.
If, as the learned counsel argue, she could not sue within the time required by law how, we ask, could she have sued in 1948 with no change whatsoever in the situation?
It is true that she made no formal demand in the early part of the period involved but it was her own fault that she did not do so. Not one thing done or said by Sayle prevented her from doing within the time allowed just what she undertook to do after she was barred by all the principles referred to.
Mrs. Lucy A. Sayle died on February 17, 1920, leaving a last will and testament whereby she devised her home to her daughter, the appellant herein, and the remainder of her property to her said daughter and her son, the appellee herein, in the proportions of one-third to the daughter and two-thirds to the son with a statement, in the nature of a request, that the son deal fairly with the two children of a deceased daughter, but specifically providing that no trust is thereby intended to be created in favor of said grandchildren. By this will, the appellee was appointed executor without bond and without the requirement of making any report as such executor to any court in this State.
On February 19, 1920, the appellee obtained the statutory affidavit of one of the subscribing witnesses to the will, and delivered the will and affidavit to the Chancery Clerk of the county of the deceased's residence, and, without any petition to the court and without any decree admitting the will to probate, the will was duly recorded by the clerk in the will records of the county. No letters testamentary were issued, and no notice to creditors was published, but the appellee proceeded to take charge of the estate of the deceased and to act and serve as executor of the will. He has never filed any inventory, report, account or other paper or pleading in court, and has never been discharged from his trust.
After his mother's death, the appellee made up a list of the assets of his mother's estate, consisting principally of cash, bonds, notes and securities, but including two parcels of land valued at $950, which list shows a total estate of $21, 443.49 according to the values placed thereon by appellee. On June 8, 1920, the appellee delivered to the two grandchildren of the testatrix, bonds, notes, securities and cash to the total amount of $3,479.89 each, and each of them executed a receipt therefor.
In January 1948, the appellant filed a bill of complaint against appellee alleging that she has never received anything out of her mother's estate except the residence which was devised to her and a sum of money not exceeding $1,500; that the appellee took charge of the entire estate as executor de son tort, collected the notes and other securities as they became due, and has from time to time used the same for his own benefit and purposes; and that he has refused to pay appellant the balance of her one-third interest in the estate. The bill prayed for an accounting and for a money decree for her remaining interest in the estate, and for a lien upon any real property still owned by the estate to satisfy such decree.
Appellee answered and denied the alleged value of the estate, as well as all the other material allegations of the bill except the execution and recordation of the will, and except that he admitted that he accepted his appointment as executor and averred that he assumed his duties as such with the knowledge and acquiescence of the parties. His answer further alleged that he had made a complete settlement with appellant shortly after the death of the testatrix, and that she was paid all that she was entitled to receive under the terms of the will. The answer also pleaded the bar of the statute of limitations and laches.
In an opinion appearing in the record, the chancellor found, at the conclusion of the evidence on the issues in the case, that the appellee has never made a settlement or accounting with his sister, the appellant; that the record is honeycombed with one transaction after another indicating that appellee was dealing falsely with those with whom he had business transactions; and "in fact, he has covered up all the way through and the Court only wishes there was some way we could reach him." The chancellor held that appellant had a good right of action many years ago, but that she is now barred by the statute of limitations, and that she has been guilty of laches. A decree was entered dismissing the bill upon the sole ground that the suit is barred by the statute of limitations and laches, and this appeal is prosecuted from that decree.
(Hn 1) In 24 C.J. p. 792, Executors and Administrators, Section 1972; 34 C.J.S. Executors and Administrators, § 733, it is said: "While it is held in some jurisdictions that the statute of limitations may avail to bar an action or suit by a legatee or distributee, against the personal representative for his share of the estate, the preponderance of authority supports the view that a statute of limitations, whether general or special, does not run in favor of an executor or administrator with respect to claims for legacies or distributive shares, for the reason that the relation of the personal representative and the legatee or distributee is that of trustee and cestui que trust, is a direct and continuing trust and therefore the personal representative's possession cannot be adverse so long as this relation exists; . . . To put the statute in operation, there must be a final settlement or at least a disavowal of the trust."
Substantially the same rule is announced in 21 Am. Jur. p. 658, Executors and Administrators, Section 495.
In the case of Cooper v. Cooper, 61 Miss. 676, 694, this Court said: "It is insisted for the appellee that the petitioners, or exceptors, are precluded by the statute of limitations from making any claim against the executor; that inasmuch as they were entitled to an action at law for the recovery of their legacy, which, as is claimed, they must have brought within six years, they must come within the same time, if they would call him to account in the court in which the trust is being administered, and ask payment there.
"We cannot assent to this view. Where a legacy is to be paid by an executor as such, and in the course of administration, it is a duty arising out of an expressed trust which the legatee is entitled to assume the trustee intends to execute. Until the trust is ended and the executor discharged from any further accounting, the beneficiaries have the right to consider the trust an active one, and mere delay on the part of the trustee in settling with the court, and through it with the beneficiaries, and obtaining his discharge, cannot be considered such a breach of the trust as to set the statute in motion in his favor. To so hold would be to offer a reward to executors and adminstrators to be dilatory instead of diligent in the performance of their duties. Nevertheless, we are not to be understood as saying that there may not be cases in which, after an actual suspension of the trust, there has been such long acquiescence or delay on the part of the cestui que trust as to require the court to deny him relief upon the ground of laches."
And in Peebles v. Acker, 70 Miss. 356, 359, 12 So. 248, 249, this Court again said: "Whatever may be the rule elsewhere, it is settled in this state that no statute of limitations runs against a legatee or the distributee of an estate pending the administration of the estate. Wren v. Gaydon, 1 How. (Miss.) 365; Jordon v. McKenzie, 30 Miss. 32; Young v. Cook, [30 Miss.] 320; Roberts v. Roberts, 34 Miss. 322; Cooper v. Cooper, 61 Miss. 676. "
See also Edwards v. Kelly, 83 Miss. 144, 35 So. 418. That case involved a will, wherein, as in the case at bar, the executor was relieved by the will from making any account or report to the court, and where he was further so relieved by the decree admitting the will to probate, yet this Court held that an action against the executor was not barred by the statute of limitations.
(Hn 2) In 33 C.J.S., Executors and Administrators, § 147, p. 1105, it is said "An executor or administrator is frequently regarded as a creature or officer of the court. He is subject to the direction, supervision, and control of the court until the estate is closed and he is finally discharged." In the instant case the estate has never been closed and the executor has never been discharged. Consequently, he is still subject to the direction and control of the court. Based upon the foregoing authorities, we are of the opinion that the chancellor was in error in holding that appellant's claim is barred by the statute of limitations.
This brings us to a consideration of the finding that appellant is estopped under the doctrine of laches from prosecuting her claim. One of our leading cases on the subject of laches is Comans v. Tapley, 101 Miss. 203, 57 So. 567, 573, Ann Cas. 1914B, 307. In the opinion on Suggestion of Error in that case this Court said: "According to Mr. Pomeroy, with whom we fully agree, this doctrine cannot be more concisely and accurately stated than in the language of Stiness, J., in Chase v. Chase, 20 R.I. 202, 37 A. 804: (Hn 3) `Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side and injury therefrom on the other it is a ground for denial of relief.' I Pomeroy's Equitable Remedies, § 21, and authorities there cited, particularly Wilson v. Wilson, 41 Or. 459, 69 P. 923; Lindsey Petroleum Co. v. Hurd, L.R. 5, P.C. 221; Naddo v. Bardon, 51 F. 493, 2 C.C.A. 335; Ryason v. Dunten, 164 Ind. 85, 73 N.E. 74; Neppach v. Jones, 20 Or. 491, 26 P. 569, 849, 23 Am.St.Rep. 145.
"In Wilson v. Wilson, supra, 41 Or. 463, 69 P. 924, it was said: `Several conditions may combine to render a claim or demand stale in equity. If by the laches and delay of the complainant it has become doubtful whether adverse parties can command the evidence necessary to a fair presentation of the case on their part, or if it appears that they have been deprived of any such advantages they might have had if the claim had been seasonably insisted upon, or before it became antiquated, or if they be subjected to any hardship that might have been avoided by reasonably prompt proceedings, a court of equity will not interfere to give relief, but will remain passive. . . . If, however, upon the other hand, it clearly appears that lapse of time has not in fact changed the conditions and relative position of the parties, and that they are not materially impaired, and there are peculiar circumstances entitled to consideration as excusing the delay, the court will not deny the appropriate relief, although a strict and unqualified application of the rule of limitations would seem to require it. Every case is governed chiefly by its own circumstances.'"
It will be noted from the above that delay in the assertion of a right will not operate as an estoppel unless such delay puts the opposite party at a disadvantage or hardship in making his defense. (Hn 4) The appellee in this case contends that he is at a disadvantage because one of his bookkeepers employed from 1920 to about 1922 died in 1940, and he has been deprived of the evidence which this bookkeeper could give. The record shows that appellee was at that time the principal owner of a mercantile business which was operating as a corporation. He had two bookeepers at that time and offered one of them as a witness who testified not only with reference to the book entries made by her, but also identified the handwriting and testified as to the book entries made by the other one. Appellee does not claim that the deceased bookkeeper was a witness to any settlement which he alleges he made with appellant, and we are unable to see from the record here where the deceased bookkeeper could have testified to anything further than the evidence given by the bookkeeper who did testify. This is the only disadvantage claimed by appellee, except the further contention of his counsel that appellee's memory was not good at this time and he was unable to remember transactions which occurred back in 1920 and 1921. But the record shows that the appellee had a very good memory as to the details of everything that he wanted to remember and a very convenient lapse of memory on those items which he wished to forget, and we are of the opinion that there is no showing here of any substantial disadvantage or hardship upon appellee by the delay in appellant's assertion of her claim. As stated in Comans v. Tapley, supra, "every case is governed chiefly by its own circumstances", and we do not feel that the circumstances here are such as to shield the appellee behind the doctrine of laches.
From the foregoing views, it follows that the decree of the lower court should be reversed. (Hn 5) Appellant asks that we render a decree here for the amount claimed to be due her and bases this request upon a supplemental finding of the lower court, made at the instance of appellant after a decision of the case, to the effect that, if appellant were entitled to recover, the amount thereof would be one-third of $21,000 less $1,500 received. We cannot enter a decree here upon that finding for the reason that in his statement the chancellor failed to take into account the fact that a part of the statement of assets hereinabove mentioned consisted of estimated values on certain lands in which the appellant admittedly now owns an undivided one-third interest by virtue of the will. There are also other features of the record which prevent us from determining with accuracy the amount which would be due to appellant, and consequently the case will be remanded to the lower court for determination of the amount due upon an accounting at which either party may offer such further evidence on that question as may be desired.
Reversed and remanded.