Ephriam's condition and the expense of his illness it is equally reasonable to infer that if anything was due him it was paid to him during this period.
Color is given to the position that William held no funds due Ephriam at the time of his death by the testimony of Robert that he and William paid Ephriam's funeral expenses out of their own funds. Significant, too, is Mrs. Bevard's statement at the reading of Ephriam's will that Ephriam did not have enough to pay the legacies. There is also corroboration in the fact that when Robert applied for letters of administration c.t.a. on Ephriam's estate he listed assets of only $ 300 and gave no indication that any property might be due from Katherine's estate, notwithstanding the fact that he must be presumed to have had in his possession at that time the letter of October 7, 1941, which he introduced in evidence in this case and which forms the basis of his claim as administrator. Further, this record shows no demand on William for payment or any indication that further sums were due Ephriam, either by Ephriam or by Robert as his administrator. The first time any mention was made of a claim on behalf of Ephriam's estate, notwithstanding the frequent correspondence of Robert with William and his wife, was after William's death. At that time plaintiff stated he believed Ephriam had received his share of Katherine's estate and merely inquired whether there were any cancelled checks. No claim was filed against William's estate by the plaintiff as administrator for Ephriam's estate; the original complaint in this action contained no such claim; and for the first time, in the pre-trial order signed December 10, 1951, it is stated that plaintiff asserts a claim as administrator c.t.a. for Ephriam's estate.
There are indications in the record that Ephriam was dissatisfied long before 1941 with William's handling of his share. On January 2, 1930, Mrs. Bevard wrote Robert's wife, 'Wm. says tell Rob he is going to settle Eph's portion when the notes come due in Jan. & Feb. Eph wrote Wm. a rotten letter and is dissatisfied with the whole business.' On April 20, 1931, Ephriam wrote the Register of Wills asking for a statement of receipts and expenditures to date and other information with respect to the Katherine Bevard estate, and also to the bank with reference to the mortgages held by them for the estate. On February 11, 1939, William wrote to Ephriam, 'You seem to have no Idea of banking in your letter.' In January and February, 1939, William sent Ephriam at least $ 2,000 of his share.
As to the plaintiff's claim on behalf of Ephriam's estate, in addition to the direct testimony that the account had been settled, the circumstances disclosed by the record form a reasonable basis for a finding that prior to Ephriam's death William had made settlement with him of his share in Katherine's estate.
As to both claims, I find that the existence of a balance of $ 10.78 in William's executor account at the time of his death is not sufficient to override all the other circumstances which point to final settlement.
I further hold that, even had I concluded that the record did not show a final settlement was made, to order an accounting at this date would be inadequate. An accounting would not be susceptible of any accurate determination, since the only records available which have any continuity are those of the bank, and they, according to plaintiff's own witness, the bank representative, are not conclusive and would give an incomplete picture. William was appointed executor in 1927. Many years have passed, and the lips of three persons who could have shed light on the administration of Katherine's estate- William, the executor, Mr. Stetson, his attorney, and Ephriam- are sealed by death. Since diligent search has not discovered the records of William or of his attorney, Mr. Stetson, the plaintiff kept no account of amounts received by him, and the correspondence introduced in evidence by him is fragmentary, any accounting which might have been ordered in this case would have been conjectural and based on admittedly incomplete and inconclusive data.
Having so held, it is unnecessary to deal with the question of the statute of limitations or laches; but it should be pointed out that it is apparent from the record that both Ephriam and Robert had considerably less than implicit confidence in William's handling of the estate, and on the showing made by the plaintiff this is not a case for application of the utmost leniency in applying the doctrine of laches.
For the foregoing reasons, I find that the complaint must be dismissed as to both claims.