The facts of this case are so fully stated in Ragland's Ex'rs v. Morton, (41 Ala. 344,) its style when here before, that it is necessary only to recite such as have since been brought into issue. The bill was amended after its remandment, by the addition of three allegations in avoidance of the staleness of the demand t 1st. That Ragland in his will, made in 1859, admitted his administration of David Morton’s estate to be an unsettled and continuing trust. 2d. That in 1844 he made an annual settlement of the said estate, and executed an additional *537administration bond. 3. That he was absent from the State for seven years, between the years 1838 and 1869.

It is well settled in this State, that the lapse of twenty years from the time an administrator might have been called to a final settlement, creates the presumption of such a settlement, and a distribution of the estate. But this presumption may be rebutted by proof of a clear and unequivocal recognition, within the time, of a subsisting and continuous trust. — Johnson v. Johnson, 5 Ala. 90 ; McCartney’s Adm’r v. Bone, 40 Ala. 533. It is said in some of the authorities that this presumption is not avoided without proof of an effort within the time to compel a settlement. -- Austin v. Jordan, 35 Ala. 642 ; Rhodes v. Turner, 21 Ala. 210. "We do not regard these last authorities as affirming the necessity of action on the part of those claiming rights against the administrator, in contradistinction from his admission of a continuing trust. No such issue was made, and there seems to have been in those cases neither ad.mission on his part, nor action by the adverse party. The weight of authority is against such a construction. — 2 Williams on Ex’rs, § 1741 ; Ravenscroft v. Frisby, 1 Coll. 16, 23; Portlock v. Gardner, 1 Hare, 594.

Hoes the evidence establish any sufficient reason why the presumption should not prevail in this ease?

In 1844 Eagland made an annual settlement of his accounts, the result of which was a balance in his favor. A final settlement would not be so suggestive of a continuing trust as this. It might be made out of precaution simply, and long after the matters involved had been fully adjusted. But an annual settlement supposes another more complete to be afterwards necessary. It is an admission of a liability to account to others, in the character assumed, precluding the termination of both.

The provision made in Eagland’s will for "David 8. Morton, on the condition that he “ release my estate from all liability to him by reason of my being his guardian, and also by reason of my being administrator of his father’s estate,” should not be taken as a recognition of a subsist*538ing trust. It would be attaching to a single word, and even to its tense, a controlling influence inadmissible even in the construction of writings more formal and critical. It was, however, an admission that he had occupied such a relation towards his step-son, and that he had not properly accounted to him. Eagland died in 1859, and his wife in 1858. Though the record does not show his age definitely, David S. Morton was probably not more than twenty-five years of age when he filed this bill in 1860.

Eagland was absent from the State for about seven years immediately succeeding the year 1841. Section 2808 (2483) of the Eevised Code requires the time a person is absent from the State during which a suit might have been brought against him, to be deducted from the period necessary to create the bar of the statute of limitations. In the former decision of this case, (41 Ala. 344,) it was said that the removal of the slaves to Tennessee, and the keeping them there for several years, did not relieve the case from the rule of presumption. The court probably did not consider this statement equivalent to the averment now made of Eagland’s absence. It is true, we are not called on to apply a statute of limitations, but to determine the staleness of a demand. Nevertheless, equity applies the rules governing the one to the ascertainment of the other, in proper cases. In addition to the other evidences of a subsisting and continuing trust, is the testimony of Samuel J. Eagland, that George O. Eagland acted as the administrator of David Morton, deceased,, from 1838 to the time of. his death. This witness was his brother, and was engaged with him in business for several years of the time. He further says, that nearly or quite all of the slaves which George O. received as the property of his intestate, he still had in his possession at the date of his death. We think the evidence sustains the decision of the chancellor on this point.

The decree of 1844 ascertained a balance in favor of the administrator, Eagland. No evidence is given of any error in this settlement, but the chancellor ignored it, and. charged the administrator with the hire of the property *539from 1838. This was error. The annual settlement was prima fade correct. We discover no other errors in the record.

The decree is reversed, and the cause remanded.