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[[Left column of page]] to his two sons to be fairly, impartially and equally divided between them, to be held by them and their respective heirs forever; and he nominates and appoints his two sons, James and John Fox, executors. John Fox alone qualified on the day the will was admitted to probate; 22nd Oct. 1804, in the county court of Fauquier. An inventory and appraisement of the personal estate, amounting to nearly £5000, was returned to the county court of Fauquier on the 25th Jan'y 1805 and ordered to be recorded; and on the 12th July 1805 Commissioners, by virtue of an order of the said court, proceed to divide the estate of Samuel Fox agreeably to his will (except the part allotted to his widow as dower as may be reasonably inferred from the papers,) into two parts, allotting one as the property of James and the other of John. This division was returned and recorded at July Court 1805. Following in chronological order we have next what purports to be a settlement of John Fox's transactions as executor of the estate, returned to the Sept. Court 1806, and this settlement shows an indebtedness of £155. 3s. 4 1/4d. It next appears that prior to that settlement, to wit, on the 27th May, 1806, Jas. Fox, by a deed of that date, purports to convey to William Ferguson, and Dolly his wife, for the consideration therein mentioned, of the good will and affection which he bears to the said Dolly Ferguson, as also towards her children, as well as for his future maintenance, all the property, real and personal, wherever situate, with all the rents, issues and profits and hires, due or to become due, which accrued to him, the said James Fox, under the last will and testament of his father Samuel. This deed was admitted to record in the County Court of Orange on the 22nd Dec. 1806. On the 25th of August 1806, some four months before it was admitted to record and in one month after it was proven before the County Court of Fauquier, William Ferguson and wife institute a suit in the Superior Court of Chancery in the city of Richmond, in which they allege, that after the grant of the executorship upon Samuel's estate, John Fox took possession of the whole estate, of the real, as tenant in common with James, and of the personal, as such executor; and demanding by virtue of said deed their proportionable part of said estate, and requiring a division and partition thereof. John Fox, the executor, answering the bill, admits his qualification and the possession of the property; but denies their right to any portion of said estate by virtue of the deed aforesaid; for that James, for several years past and even prior to the death of their father, discovered, at time, symptoms of derangement of mind, (this however he believes was unknown to the father,) and since that period it continued to increased, until for the last four or five years, his mental derangement has been complete, uniform, and unceasing; and at no time has the said James, for the last three years at least, been sufficiently compos mentis to do any act which should be the result of thought or mental presence; and he therefore insists that the said complaints cannot claim any right to the estate therein mentioned, or any part thereof; that the said James was deranged at the time he executed the said deed, as he believes, from circumstances, &c. ; and that he was possessed of such entire imbecility of mind that any person might, for a consideration of no importance, obtain from him a conveyance for any of his property or the whole of it; and he therefore concludes, that the said deed was obtained by fraud, and is void in law and equity. This answer was filed by John Fox in Dec. 1806. At that time he was the acting committee of said James' estate, he and Armistead Blackwell having been appointed at the October Court 1806, and as such the said John Fox was, or claimed to be, in the possession of said estate. Yet this fact is entirely omitted in the answer. Possibly he thought it unnecessary, and failed to mention it to the draftsman of his answer. That there could have been no design is shown from the fact, that the three Justices, who sat upon the examination of the lunacy of the said James, are examined as witnesses, and their depositions taken to prove the fact. This suit was never brought to an issue. [[Middle column of page]] warrant and defend. And the said Ferguson and wife for themselves, their heirs, &c., do release, acquit, and forever quit-claim to all, and all manner of estate of which the said James shall die seized, possessed of, or entitled to; and they covenant, that they will make any further conveyance necessary to convey to them all the right, title, interest and claim of them the said Ferguson and wife to any estate which the said James may have at his death; provided, that it shall not bar them of any claim to any property which James Fox shall or may hereafter acquire over and above the estate which he now hath and is entitled to, and the increase and profits of the same. To this deed there is a memorandum annexed, executed at the same time, attested by the same witnesses, and to be incorporated as part thereof, to the effect that said Ferguson and wife were not to be responsible in any way in the event that if the title of the said Fox and Blackwell and wife should be disturbed by any person whatever, not claiming under the said Ferguson and wife, they are not to be responsible for the consideration (the word not being evidently omitted in the original) within mentioned, nor for damages in any manner whatever. This deed with its covenants and provisos, and more especially with the memorandum annexed, enables us to penetrate the whole scheme. His brother James was hopelessly non compos. If he died in the condition he and his sister, Blackwell and his half sister Dolly, would inherit his estate; and he calculated the chances of survivorship. By the purchase of Mr. Blackwell's interest (which he subsequently effected) and the chance of James dying prior to Mrs. Ferguson, he would take James' estate, and hold it as he had done through the long series of years he was insane, with none to question it. I think it evident that Ferguson and wife doubted the sufficiency of James' deed to them; hence we find them providing that in no event are they to be held responsible for the consideration received by them nor for damages in any manner whatever. Regarding the circumstances surrounding these transactions, and even admitting that by the deed of Sept. 1809 Fox and Blackwell acquired title to the estate of James, a question not necessary in my view of the merits of the case to pass upon, can it be supposed that those who stood in the relation they did can be allowed in a Court of Equity, under such circumstances, to become the purchasers of this estate and by such means to appropriate the whole to themselves. - Courts of Equity are not slow to imply a trust and to fasten upon the property for the benefit of those interested. This principle is so familiar that it needs only to be stated. It was well illustrated by one of the counsel in his argument. Suppose James had been restored to his senses; that he commenced the investigation as to the condition of his estate; that he called upon his brothers for the information, they being the persons clothed by the Courts under the authority of the law to manage and protect his estate during his long days of darkness and affliction, can the idea be tolerated for one moment that they could have sheltered themselves behind such a frail bulwark as these deeds and transactions show, and coolly inform him that by force thereof his whole estate, large and valuable as it it is shown to be, was vested in them; that they had purchased it of his alienees for the consideration of £480; and that too but a small portion of his estate which they at that very time held in their hands? Would not a Court of Equity be prompt in restoring to him his rights and pronounce in foro conscientiae such a demand highly unconscientious and fraudulent? If the Court would have been thus ready to have reinstated James Fox, those who stand in his shoes are entitled to the same relief and the complainants, as his representatives, are entitled to that share of his estate which the law pronounces them entitled to. But this recovery is objected to by the defendants upon several grounds, and among others that they are concluded from any demand because since the death of James Fox they have released to John Fox all of their interest in said estate by their deeds executed and recorded with a full knowledge of all their right; and further, because that these arrangements were in the nature of a settlement of family diffi- [[Right column of page]] terpose and pronounce the transaction void. 1 Story, page 232, 3 leading cases, 395, 397. Let us apply these principles of law to the facts in this case. James Fox died about the 28th or 29th October, 1843. Dolly his half-sister some days prior. In the Spring of 1844, Mr. James Y. Horner (who had intermarried with a daughter of Mrs. Ferguson, but who at that time was dead), visits Fauquier, and Mr. Fox informs him that he understands some of the heirs of his sister talk of bringing suit against him, and desires him, Horner, to see the heirs and request them not to do so; that a suit would avail them nothing; and that if they would not do so, he could make them a handsome present of $8000, and that would be nothing to what he would do for them. The old gentleman declines the mission, but suggests his son, Frederick, as a competent business man, and as one who would be likely to take an interest, and thereupon he is duly appointed the agent to confer with the Ferguson heirs. It is worthy of the enquiry why John Fox was at this particular period so solicitous about the matter of James' estate and what was the prompting motive to these generous feelings for his distant relatives so suddenly aroused. Could it be that he began to have doubts of the propriety of the manner in which he had obtained possession of the whole of James' estate. Did he begin in his own mind to question, whether or no he had secured title thereto under the deeds from Ferguson and wife, and Blackwell and wife, and that now, James being dead, this title, under which he had so long held unquestioned this property, might become the subject of investigation? Let the sequel answer. -- The agent proceeds upon his mission; he visits the heirs, and urges upon them a compliance with the old gentleman's wishes; that he was actuated by pure motives of generosity, and what he designed doing was intended purely as a gratuity; that if they had any claims, what he wished them to do would not affect it; and if they would act kindly towards him, he was of the opinion that they would at his death get the whole of his estate. These are the declarations of John Fox's agent, made within the scope of his authority, and these declarations, are the declarations of John Fox himself: See Story on agency page 153. In response to these requests we have a letter from some of these heirs to John Fox, No. 1, informing him that this news of their intention to bring suit is a fabrication, for "we consider that the deed of release from Wm. Ferguson and wife, dated 30th September, 1809, to you and Blackwell did fully and to all intents and purposes convey the entire interest of the said Ferguson and wife, with all the interest of their children. We wish you therefore to understand that we set up no claim, and that we will sign any paper your agent may present more fully to convince you, and we assure you, that any donation your generous disposition and noble heart may prompt you to make will be received by your relations with a feeling of profound gratitude." Can there be fuller evidence that at that time these parties supposed they had no interest in James Fox's estate; that they were bound by the stipulations, as they express, contained in the deed from their ancestors. Upon the reception of this letter what was John Fox's obvious duty? Was it, by those simulated acts of generosity of conferring a bounty upon these heirs, to endeavor to shield himself in the possession of this estate? Or should he not rather, finding them thus ignorant of their rights, have informed them, and then fairly and generously have sought to purchase their interest? On the contrary, however, we find him, through his agent, doling out sums of money not as a consideration for anything bestowed; but in every instance with perhaps a solitary exception, expressing that it is intended as a gift. Under these influences and induced thereto doubtless by the representations made to the the deeds of 19th June, 1844, and of January, 1846, are executed by a part of these heirs, conveying to him as heirs of Wm. and Dolly Ferguson, their interest in the property conveyed by the deed of September, 1809, by Ferguson and wife to Fox and Blackwell; and although a consideration of $8000 is named yet it is declared that this is a mere nominal sum not contended for as a matter of right, and if he does not give that amount for distribution, they bind themselves to receive a smaller sum as a just and valid consideration. I regard these deeds, upon their face, as evincing that these parties were ignorant of their rights, as the representatives of James Fox, and in any aspect as only conveying the interest which they supposed was transmitted to them as the heirs of their mother, and present no barrier to the assertion of their claims as heirs of James Fox; and that throughout the whole negotiation there was not that good faith necessary. But on the contrary just suspicion of that artifice and undue influence which will justify a Court of Equity in pronouncing the transaction, even if transferring any right, as void. The defendants also rely upon the statute of limitations as a bar to the recovery. I do not think the statute of limitations applicable. John Fox remained in possession of the whole estate. His account as committee settled in 1809, fixes the character in which he held the property; and he will not be permitted to say that he could avoid, at his will, that relation and claim to hold adversely. It is also contended that these parties are not entitled to relief by the lapse of time, and their laches in the prosecution of their claim, &c. Laches in the assertion of prosecution of a claim, is not always enough, say the authorities, to defeat it. It must be such as to afford a reasonable presumption of the satisfaction or abandonment of the claim, or such as to present a proper defence by reason of the death of the parties, loss of evidence, or otherwise; and I am of the opinion, that under the circumstances of this case, the ignorance of the parties as to their rights, the inducements held out by Fox through his agent, the situation of the parties, the distance at which they live, the disabilities under which some of complainants labored, they are not
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