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held that, when an executor is called to account for moneys which were bequeathed to him upon certain trusts, and which have been severed

paid, and also offered to read the evidence of some bond creditors, that the debts due to them were not paid. All the other evidence was hearsay. They excused the length of time, by alleging several infancies in those who had possession of the estate. LORD COMMISSIONER EYRE remarked, that it was a presumption of fact in legal proceedings before juries that claims the most solemnly established upon the face of them, would be presumed to be satisfied after a certain length of time. He doubted as to the relevancy of the evidence, and concurred with LORD COMMISSIONER ASHHURST in thinking that the court could not entertain their suit, which was brought forty years after the right had accrued; but that since the original demand was plain, and there was no positive evidence that it was paid, though the presumption was that way, yet there was such foundation for the bill as to make it not a case for costs.

In the case of Pickering v. Stamford, 2 Ves. Jr. 272, decided by LORD ALVANLEY, M. R., upon a claim made by the representative of one of the testator's next of kin, after a lapse of thirty-five years, to such parts of the testator's residuary estate as were secured upon real property, upon the ground that the disposition was void by the statutes of mortmain, his Lordship acknowledged the propriety of the decision of the Lords Commissioners, in the case last stated, and said, if the case before him had been that of a legacy, he would have been of opinion that a bar had arisen from the length of time which had elapsed, upon the ground of presumptive satisfaction.

In the case of Montresor v. Williams, MSS. 1823, March 3, April 16, and May 7, which came before Sir JOHN LEACH, V. C., upon exceptions to the Master's report, one Duval a lessee under a lease from the Portland family for ninety-nine years from 1765, by his will dated December, 1789, proved 3d May, 1794, charged his general estate with legacies, subject to which the lease passed to his son as executor and residuary legatee. Duval, the son, in 1808, granted an underlease, which, after

various mesne assignments, came to Wigan, who obtained a further term of fourteen years from Duval, and then assigned the underlease to the defendant, who contracted with General Montresor, the plaintiff, for the sale of the leasehold premises and the furniture. Among other objections to the title referred to the Master, it was insisted that the lease being charged with the legacies, demands in respect of these might be made upon the purchaser. Releases were subsequently procured. When the cause came on upon the exceptions to the Master's report, his Honor said: "These releases are unnecessary. The vendor has no right to them. Even without them, I should have held that, where an executor, twenty years after the death of the testator, sells a leasehold charged by the will with legacies, and no demand has during all that time been made upon it, there was evidence that the charges had been paid."

In Campbell v. Graham, 1 Russ. & Myl. 453, aff'd on appeal, 2 Cl. & Fin. 429, legacies of £500 were given to two legatees, who do not appear to have claimed their legacies during the period between the testator's death in 1790 and 1818, when they assigned their legacies to their nephew John Graham Campbell, who in 1821 filed his bill against the personal representative of the testator. One of the questions in the cause was, whether these legacies were not to be presumed satisfied. The Master reported that he did not find they were satisfied, and objections being taken to his report, Sir JOHN LEACH, M. R., under the circumstances of the case, considered that the Master in that report had adopted the safer course, and overruled the exception. The circumstances alluded to were, that the legatees had left Jamaica previously to the testator's death, where the assets were to be administered, and never returned there, and that there were not assets forthcoming, part of the assets being a bond due to the testator by John Campbell, a brother of the legatees, and out of which their legacies were directed to be paid. From this judgment an appeal was made, and Lord Brougham, C., de

by the executor from the testator's personal estate, and the interest of which has been for a time applied upon the trusts of the will, so that the fund has ceased to bear the character of a legacy, and has assumed that of a trust fund, the action to compel an account is treated as a suit for a breach of trust, and not as a suit for a legacy, and consequently is not within the statute,' as it is held that that statute does not apply to cases of express trust.2

cided that the legatees were barred. In the conclusion of his judgment, after discussing the authorities bearing upon the question, he observed, “A party buying a legacy of £500 for £25, after seven and twenty years have elapsed, and then allow ing four years more to pass before filing his bill, making altogether a laches of more than thirty years, in my apprehension has himself to blame, if he finds, when he comes into this court, that his remedy is gone. 4 Burr. 1962; Oswald v. Leigh, 1 T. R. 270; Fladong v. Winter, 19 Ves. 196; Wynne v. Waring, cited in previous case; Hercy v. Dinwoody, 4 Bro. C. C. 257; Smith v. Clay, 3 id. 639, n.; Jones v. Turbeville, and Pickering v. Stamford, ante. Upon the principle of some of these case, therefore, and upon the authority of others, admitting nevertheless that no one has gone so far as to say that mere lapse of time can be pleaded as a bar, and stating also that I can find no case in which the precise period of seven and twenty years has been held sufficient to shut the doors of a court of equity against such a demand as too stale to be enforced, upon the reasoning and principle of some of these cases, and the actual decision in others, I am disposed to hold that the plaintiff has come too late, and that the doors of this court ought not now to be thrown open to him, inasmuch as, to use LORD CAMDEN's

2 Watson v. Saul, 1 Giff. 188; King v. Dennison, 1 V. & B. 260; Dix v. Burford, 19 Beav. 409; Butler v. Carter, L. R. 5 Eq. Cas. 276; Edmunds v. Waugh, L. R. 1 Eq. Cas. 418; Dinsdale v. Dudding, 1 Y. & C. 265; Brougham v. Paulett, 19 Beav. 119; Commissioners v. Wybrants, 2 Jones & L. 182; Jacquet v. Jacquet, 27 Beav. 332; Playfair v. Cooper, 17 id. 187; Mason v. Broadbent, 33 id. 296; Tyoon v. Jackson, 30 id. 384; Hodgson v. Bibby, 33 id. 221; Dickinson v. Teasdale, 31 id.

expression, the court cannot be called into activity to aid a demand, be it for a legacy or for a debt, unless with good faith and with good conscience a reasonable degree of diligence shall have been used." Pre sumptions of payment of legacies will not be made from mere lapse of time, where payment by the executor would be out of the ordinary course. Lee v. Brown, 4 Ves. 362; Prior v. Horniblow, 2 Y. & C. 200.

1 Estate of Brown, 8 Phila. (Penn.) 197; Marshfield v. Cheever, 3 Dane Abr. 503; Sawyer v. Smith, 5 id. 405; Pedrick v. Saunderson, 5 id. 403; Bass v. Bass, 8 Pick. (Mass.) 187; Denny v. Eddy, 22 id. 533; Ravenscroft v. Frisby, 1 Coll. 16; Phillips v. Munnings, 2 My. & Cr. 309.

In re Powers, 124 N. Y. 361, it was held that to render a provision in a will effectual to furnish a greater security than that given by law for the payment of debts in due course of administration, by charg ing them upon the real estate of the testator, the purpose must quite clearly appear; a mere direction to pay debts out of the property will not suffice.

Under the act of 1837, concerning executors and administrators, and under the code, the running of the statute of limitations against a debt due an executor or administrator from, or any cause of action in his favor against, the decedent, is suspended from the time of the death of

511; Round v. Bell, 30 id. 121; Davenport v. Stafford, 14 id. 319; Downes v. Bullock, 25 id. 54; Smith v. Acton, 26 id. 210: Proud v. Proud, 32 id. 234; Gough v. Butt, 16 Sim. 323; Francis v. Grover, 5 Hare, 39; Roch v. Callen, 6 id. 531; Lewis v. Duncombe, 28 Beav. 175; Hunter v. Nickolds, 1 Mac. & G. 683; Snow v. Booth, 2 K. & J. 132; Cox v. Dolman, 2 De G. M. & G. 532; Burrows v. Gore, 6 H. L. Cas. 907; Young v. Waterpark, 13 Sim. 199.

the latter until the first judicial settlement of the accounts of the executor or administrator, and this without regard to the number of years embraced in that period.

Where, therefore, fourteen years elapsed between the death of the decedent and the first judicial settlement of an executor's accounts, held, that debts due him from the decedent, which were not barred by the statute at the time of the death of the latter, were properly allowed the executor. The will of M. devised to her executor one-third of her residuary estate in trust, to receive the rents and income, and apply the net proceeds to the use of a beneficiary named during life, and on the death of the beneficiary gave the property to her children; each of the other two-thirds was The disposed of in a similar manner.


testatrix authorized her executor, at any
time before final division and settlement
of her estate, whenever he should deem
proper for any "purpose which in his dis-
cretion may render it advisable so to do,"
to sell any part or portion thereof. The
executor sold certain of the residuary real
estate. Upon settlement of his accounts,
certain claims presented by him against
the estate were proved and allowed, and
after applying the proceeds in his hands
of the residuary personal estate, there re-
mained a balance due him. Held, that
proceeds of the sales of the real estate were
properly treated as assets in his hands,
applicable to the payment pro tanto of his

In re McComb, 117 N. Y. 378, distinguished.

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SEC. 200. General Rule. It is well settled that a subsisting, recognized, and acknowledged trust, as between the trustee and cestui que trust, is not within the operation of the statute of limitations.1 But this

1 Bridgman v. Gill, 24 Beav. 302; Attorney-General v. Fishmongers' Co., 5 My. & Cr. 16; Wedderburn v. Wedderburn, 4 id. 41; Coate's Estate, 2 Pars. Sel. Cas. (Penn.) 258; Maury v. Mason, 8 Port. (Ala.) 211; Shibla v. Ely, 7 N. J. Eq. 181; Lyon v. Marclay, 1 Watts (Penn.), 271; Bertine v. Varian, 1 Edw. (N. Y.) Ch. 343; Redwood v. Reddick, 4 Munf. (Va.) 222; Evarts v. Nason, 11 Vt. 122; Lexington v. Lindsey, 2 A. K. Mar. (Ky.) 443; Chaplin v. Givens, 1 Rice (S. C.) Ch. 132; Pinson v. Ivey, 1 Yerg. (Tenn.) 296; Pinkerton v. Walker, 3 Hayw. (Tenn.)221; Kutz's Appeal, 40 Penn. St. 90; West v. Sloan, 3 Jones (N. C.) Eq. 102; Willard v. Willard, 56 Penn. St. 119; Bryant v. Puckett, 3 Hayw. (Tenn.) 252; Jones v. Person, 2 Hawks (N. C.), 269; State v. McGowen, 2 Ired. (N. C.) Eq. 9; Arm. strong v. Campbell, 3 Yerg. (Tenn.) 201;

Cook v. Williams, 2 N. J. Eq. 209; Pugh v. Bell, 1 J. J. Mar. (Ky.) 399; Oliver v. Piatt, 3 How. (U. S.) 333; Thomas v. Floyd, 3 Litt. (Ky.) 177; Prevost v. Gratz, 6 Wheat. (U. S.) 481; Hayne v. Hall, 5 Humph. (Tenn.) 290; Boone v. Chiles, 10 Pet. (U. S.) 177; Simms v. Smith, 11 Ga. 195; Decaucher v. Lavetier, 3 Johns. (N.Y.) Ch. 190; Wilmending v. Russ, 33 Conn. 67; Piatt v. Oliver, 2 McLean (U. S. C. C.) 267; Coster v. Murray, 5 Johns. (N. Y.) Ch. 522; Wood r. Wood, 3 Ala. 756. The statute cannot be pleaded to a remedy given by the legislature to enforce a trust. Bethune v. Dougherty, 30 Ga. 770.

It is equally true that fraud as well as trust is not within the statute. Kane v. Bloodgood, 7 Johns. (N. Y.) Ch. 122; Hunter v. Spotswood, 1 Wash. (Va.) 145.

A purchaser for a valuable consideration, if affected with notice, becomes a

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rule must be understood as applying only to those technical and con

trustee for the true owner, and will not be protected by the statute. Wamburzee v. Kennedy, 4 Desau. (S. C.) 479; Thayer v. Cramer, 1 McCord (S. C.), 395, 398.

As a rule, the statute does not operate in cases of fraud and of trusts; but as soon as the fraud is discovered it commences to run. Wamburzee v. Kennedy, 4 Desau. (S. C.) 479; Payne v. Hathaway, 3 Vt. 212; Sweat v. Arrington, 2 Hayw. (Tenn.) 129. The statute does not reach to matters of direct trust, as between trustee and cestui que trust, Coster v. Murray, 5 Johns. (N. Y.) Ch. 531; Turner v. Debell, 2 Marsh. (Ky.) 384 ; nor to parties standing in the relation of principal and agent, or factor, Murray v. Coster, ante. It may be said to be a well-settled rule that the statute cannot, either in a court of law or equity, protect a trustee against the demands of his cestui que trust, Thomas v. White, 3 Litt. (Ky.) 177; Lexington v. Lindsay, 2 Marsh. (Ky.) 445; or of persons claiming under him, Redwood v. Riddick, 4 Munf. (Va.) 222. So long as the trust subsists, so long it is impossible that the cestuis que trust can be barred. The cestuis que trust can only be barred by barring and excluding the estate of the trustee. Cholmondeley v. Clinton, 2 Meriv. 360. Land was devised to A., in trust to apply the rents and profits to the support of B. during his life; and in an action by the cestui que trust against the trustee, to recover the rents and profits, it was held that the general statute of limitations does not apply to trusts. Hemenway v. Gates, 5 Pick. (Mass.) 321.

"Length of time is no bar to a trust clearly established; and in a case where frand is imputed and proved, length of time ought not, upon principles of eternal justice, to be admitted to repel relief. On the contrary, it would seem that the length of time, during which the fraud has been successfully concealed and practised, is rather an aggravation of the offence, and calls more loudly upon a court of equity to grant ample and decisive relief. But length of time necessarily obscures all human evidence; and as it thus removes from the parties all the immediate means

VOL. II. -8

to verify the nature of the original transactions, it operates by way of presumption in favor of innocence, and against imputation of fraud." Per STORY, J., in Prevost v. Gratz, 6 Wheat. (U. S.) 497. A legacy or trust is not within the statute, but after a length of time payment will be presumed; yet such presumption may be rebutted by other circumstances; and what operation such presumption should have is for the consideration of the jury. Durdon v. Gaskill, 2 Yeates (Penn.), 268. In the case of Van Rhyn v. Vincent, 1 McCord (S. C.) Ch. 310, the court, per NOTT, J., said: "For although it is a rule in the court of equity that lapse of time will be no bar between a trustee and a cestui que trust, yet that doctrine applies only to technical equitable trusts, and not to those constructive trusts of which a court of law as well as a court of equity have jurisdiction."

If a bona fide purchaser without notice, but who is a trustee by implication, is to be affected by an equity, that equity must be pursued within a reasonable time. Shaver v. Radley, 4 Johns. (N. Y.) Ch. 310;. Thompson v. Blair, 3 Murph. (N.C.) 583.

A trustee cannot avail himself of the statute without plain, strong, and unequivocal proof of his renunciation of the trust to divest himself of it for the purpose of benefiting himself by the act of limitations, to destroy the rights and interests, of the cestui que trust, and a person who has taken a conveyance from the trustee cannot shelter himself under a plea of that statute. Boteler v. Allington, 3 Atk. 459. The possession of the cestui que trust is not adverse to the title of the trustee, nor is the possession of the trustee adverse to his cestuis. Smith v. King, 16 East, 283; Keene v. Deardon, 8 id. 248; Smith v. Wheeler, 1 Ventr. 129.

A cestui que trust is "tenant at will" to the trustee, and the possession of the cestui que trust is "the very possession in consideration of law of the trustees." Earl of Pomfret v. Lord Windsor, 2 Ves. 481; Leuthiellier v. Tracy, 3 Atk. 729; Dighton v. Greenvil, 2 Ventr. 329. And it is a maxim that no conveyance by cestui que

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