The opinion of the court was delivered by: KEECH
This is an action by Robert E. Bevard, individually in his own right and as administrator c.t.a. of the estate of Ephriam H. Bevard, deceased, against Mrs. Grace Bevard, as executrix of the estate of Dr. William A. Bevard, deceased, and in her own right and as sole legatee and devisee of Doctor Bevard. The complaint and amended complaint are both termed complaints for 'moneys had and received by defendant's decedent to the use of, and belonging to the plaintiff,' but from the evidence adduced it is apparent that the plaintiff's cause of action, if any there be, is one for an accounting by Mrs. Bevard, as personal representative of Doctor Bevard, in the estate of Katherine Harper Bevard of which Doctor Bevard was sole executor.
The following facts are undisputed. Katherine Harper Bevard died September 25, 1927. Her will provided that the family home should not be sold as long as her brother Ephriam desired to live there, and that when the home was sold William, if living, should be paid $ 1,475 with interest from January 29, 1920, to reimburse him for the amount invested by him in the property. The will further provided that after payment of certain legacies totalling $ 500 and erection of a family memorial at the cost of about $ 2,500, the remaining estate should be divided equally between her brothers, William, Ephriam, and Robert. The will named William and Ephriam executors; and on Ephriam's refusal to act, William was appointed sole executor, under special bond. At the time William qualified, the estate included real property valued at $ 7,500 and personal property estimated at $ 27,500. No inventory of the estate was required to be filed and none was filed. However, it is apparent that the personal property consisted largely of mortgages, which were left by Ephriam and Robert with William for collection and reinvestment of the proceeds or part thereof. It is conceded that from time to time William made payments to Ephriam and Robert on account of the interest and principal of their shares. The last known payment to Ephriam was transmitted by letter of October 7, 1941, and the last payment to Robert was made August 11, 1943.
On November 22, 1941, Ephriam died. The executrix named in his will declined to serve; and on October 30, 1942, Robert filed a petition for letters of administration c.t.z. on Ephriam's estate, declaring that the estate consisted of personal property of the value of $ 300. On November 23, 1943, Ephriam's estate was appraised at $ 342.98.
Robert took over the family home after Ephriam's death.
On July 14, 1949, Dr. William A. Bevard died, and on November 22, 1949, Mrs. Grace Bevard was appointed executrix of his estate. At the time of William's death there was a balance of $ 10.78 in his account as executor of Katherine's estate at the National Savings and Trust Company.
On June 22, 1949, almost a month after the date by which claims against William's estate were required to be filed, the plaintiff filed two claims in his own name against the estate, one for $ 4,200 or 42 shares of common stock of Cities Service, and the other for $ 4,700 with interest at 5 1/2 % from October 7, 1941.
On October 27, 1950, Robert filed this suit against Mrs. Bevard, claiming that at the time of his death William was indebted to him in the sum of $ 4,700, representing monies held by William for the account of Robert plus interest thereon from October 7, 1941, and the sum of $ 4,200 representing the value of 42 shares of Cities Service common stock, plus accrued dividends since June 10, 1930. On December 14, 1951, plaintiff filed an amended complaint, claiming the sum of $ 4,700 plus interest due him as administrator c.t.a. of Ephriam's estate, and the 42 shares of Cities Service stock, or value thereof, plus accrued dividends due him in his own right.
The evidence at the trial showed that plaintiff charges failure of William, as executor of Katherine's estate, to make a full accounting to Ephriam and Robert for their respective shares. It is the plaintiff's contention that his establishment of the fact of the fiduciary position of William as executor of Katherine's estate and the fact that he received funds as such fiduciary, makes out a prima facie case justifying an order for an accounting, and that the burden is on the defendant to show either that an accounting has been made or that sufficient time has elapsed to warrant the presumption that an accounting was made. Plaintiff argues that there has not been such a lapse of time and, further, that any presumption of final accounting and distribution is rebutted by the fact that a balance remained in William's executor account at the time of his death.
The defendant, on the other hand, denies any liability and contends that full settlement and distribution were made by William to Ephriam and Robert in Katherine's estate; and that even if the court should find the evidence insufficient to support a finding that William made an accounting, the plaintiff's causes of action, both in his own right and as administrator, are stale and barred by the statute of limitations or laches.
At the hearing of this case, the court received on behalf of the plaintiff the testimony of the plaintiff, Robert E. Bevard, the defendant, Mrs. Grace Bevard, and a Mr. Risdon, representing the National Savings and Trust Company.
The plaintiff, Robert E. Bevard, who is now seventy-nine years of age, testified that his brother had never made a final accounting or distribution in the estate of Katherine, and that he made no demand for such an accounting because he trusted William. The plaintiff put in evidence a number of letters from William and Mrs. Bevard to Robert and Ephriam during the years 1929 to 1943, referring to Katherine's estate, and transmitting payments or discussing the investment or reinvestment of their shares.
In support of his claim in his own right, plaintiff relied to a great extent on a paper signed by William and dated June 10, 1930, certifying that as of that date he held in his own name 42 shares of Cities Service common stock purchased for Robert. The plaintiff admitted receiving payments on account of interest and also on the principal of his share from time to time when he needed money, and that the last payment to him was sent to William in a letter dated August 11, 1943, in which William stated Robert's money had been reinvested in debenture bonds, which he was forwarding by registered mail, and that he enclosed a check for interest 'to close you account with me.' This same letter shows that Robert had gotten the family home after Ephriam's death, and that William was then eighty-four years of age and having 'to dig along to make both ends meet.' Robert testified that this letter did not mean that his entire account was closed, but admitted that although he continued to correspond with William until his death in 1949 he never received any further payment from William on account of Katherine's estate and never made any written demand for further payment. There was testimony by Robert that on May 30, 1946, he met William at Brownsville, Pennsylvania, and asked that the Cities Service stock be sent to him, which William agreed to do as soon as he returned home, but the stock was not sent. This testimony was received over the objection of defendant's counsel, subject to a motion to strike on the ground that there was no corroboration as required by Sec. 14-302 of the District of Columbia Code.
Robert further testified that he came to the District of Columbia after William's death and saw Thomas B. Shoemaker, Esq., attorney for William's estate, who told him Mrs. Bevard had said the only thing William had that belonged to Robert was a few shares of Cities Service stock. If this be held to be credible testimony, it would corroborate the ...