
    John H. Colburn vs. P. J. Holland, Executor, and B. P. Colburn.
    
      Presumptions — Lapse of Time — Limitations, Statute of.
    
    A wife, residing in Boston, received and used the income, and had the control as apparent beneficial owner, for a number of years, of a trust fund, the legal title to which was in W., but by whom the trust, was created, what were its terms, and what quantity of interest she had, whether for life or absolutely, did not appear, and at the time of her death there were, also standing- in her name certain bank stocks of banks in Charleston, but by whom, and with whose funds the investments were made did not appear. The husband resided in Charleston, and on her death he received the trust fund from W., and converted the stocks to his own use — then and ever afterwards until his death, claiming both as his own property — and a few years afterwards, in order to clothe himself with the legal title to some of the stocks, he sued out letters of administration on her estate, at the same time declaring himself to be the owner. On bill filed by a distributee of the wife against the executor of the husband, more than twenty years after the husband had received the trust fund and converted the stocks: — Held, that the principles declared in Riddlehoover vs. Kinard, 1 Hill Oh. 370, applied, and that defendant was protected from liability to account by the presumptions arising from the lapse of time.
    A husband who had administered on his deceased wife’s estate, made a final return to the Ordinary in which he declared, in effect, that the estate was wound up, and that he had transferred all the assets to himself as sole owner, and the Ordinary certified to the return as a final settlement: — Held that, as against a distributee who was of full age, this transaction in a public office, and remaining there as of record, gave currency to the statute of limitations, and that a bill for account filed more than four years afterwards was barred.
    BEFORE LESESNE, OH., AT CHARLESTON, FEBRUARY, 1867.
    This case came before the Court on exceptions to the Master’s report, which is as follows:
    
      This case was referred to me, by consent, “ to take the testimony and report upon the facts and the questions arising thereon, with leave to report any special matter.”
    James Smith Colburn made his will on the 20th of February, 1856, and thereby, after bequeathing certain inconsiderable portions of his estate, gave all his interest in the partnership assets of Colburn & Holland, to Parker J. Holland absolutely, and all the rest and residue of his estate to the said Parker J. Holland, in trust for the sole and separate use of Susan C.pwife of the said Parker J., for her life, and after her death, to other uses. He appointed Parker J. Holland and J. Harleston Read, Jr, executors of his will. The testator died on the Mth July, 1859, and his will was proved by Parker J. Holland, who alone qualified as executor.
    Mr. Colburn left surviving him, three sons by his second wife, Sarah Dunn, namely: Frederick 0., Benjamin P,, and John Henry. Mrs. Holland is the daughter of James B., a son of testa-tor by his first wife.
    The bill was filed on the 7th of December,. 1859, by John Henry Colburn, one of the sons of the testator by his second marriage, against Parker J. Holland as executor, and prays that an account may be taken of the separate estate of Sarah Dunn Colburn, the mother of the plaintiff, which estate it is alleged, came to the hands of her husband after her death, and was by him converted to his own use, and that the plaintiff’s share of the said estate may be paid to him by the said executor, out of the estate of his testator. Frederick A. Colburn and Benjamin P. Colburn, the two other sons of the testator by his marriage with Sarah Dunn, are also made parties defendant. Frederick A. disclaims in his answer all interest in the subject matter of the bill. Benjamin P. claims the same interest as the plaintiff, and joins in the prayer for an account, and for payment of his share.
    
      The facts in the case are in some degree obscure, owing to the length of time over which they extend, and the anomalous character of the domestic history to which they refer.- In applying the facts to the questions upon which depend the rights of the claimants, I have been essentially aided by the elaborate and able discussion before me of these questions by the solicitors in the cause. To give as much perspicuity as may be in my power to the examination of the case, I shall arrange the facts derived from the pleadings, as well as from the testimony, together with what I have to say, under the following heads:
    1. Had Mrs. Sarah Dunn Colburn a separate estate, and if she had, upon whom did it devolve at her death ?
    2. If the plaintiff John Henry Colburn, and the defendant, Benjamin P. Colburn, were entitled upon the death of their mother to distributive shares of her estate, are they now precluded from asserting their claim by.lapse of time, or other matter subsequent thereto?
    3. Do the circumstances establish such a case of fraud as will avoid the bar of lapse of time, or other matter precluding the claimants from the relief which they now seek ?
    1. As to a separate estate, The bill states that James Smith Colburn, in the year 1808, intermarried with the late Sarah Dunn at Boston, in the State of Massachusetts, of which place they were both at that time residents, and so continued to be until the year 1818, when they removed to Charleston, South Carolina, where they permanently established themselves, and where James Smith Colburn continued to reside until his death in 1859, and where Sarah Dunn resided until 1819, when together with her husband, she visited the State of Massachusetts, where she remained until her death in 1836. That during the said marriage, the said Sarah Dunn, through her mother, the late Mary Prince, became entitled to a considerable estate which was disposed of by the said James Smith Colburn, who in substitution therefor, conveyed to Samuel D. Ward of Boston, certain real estate in that city, in trust for the separate use of the said Sarah Dunn. That afterwards, but during the marriage, at the instance of the said Sarah Dunn, this last mentioned property was sold, and the proceeds, to wit, $20,000, invested in securities for money for the use of the said Sarah Dunn. That the said Sarah Dunn was also entitled to a separate estate in certain shares, standing in her name in the capital stock of the following banks in the city of Charleston, viz.: 44 shares in the Planters’ and Mechanics’ Bank; 6 shares in the Bank of South Carolina; 9 shares in the Union Bank, and 3 shares in the State Bank.
    The plaintiff further states, that from his birth in 1816, he lived with his mother until her death, when, in 1836, he came to Charleston and took lodgings at the house of his father, and there continued until 1841. That after the death of Mrs. Colburn, her eldest son, Frederick A., who was then a resident of Boston, where Mrs. Colburn died, made a claim for his portion of her estate situated in said city, and that the plaintiff upon receiving information of said claim being made by bis brother, interposed his claim also, but under certain representations and influences mentioned in the bill, he abandoned the prosecution of his claim to the property in Boston.
    Parker J. Holland, executor of James S. Colburn, admits in his answer that his testator bequeathed the great bulk of his estate to him in trust, for the sole and separate use of his wife during her life, with certain subsequent limitations. He states that he has heard and believes, that Mrs. Colburn, the wife of his testator, became entitled some time after their marriage, to an undivided interest in certain lots of land in Boston belonging to the Prince estate, to which estate she was one of the heirs. That there had been no marriage settlement at tbe time of tbe said marriage, nor was there any settlement of any kind subsequent to that event. That some time in the year 1823, the said undived interest of Mrs. Colburn by the joint deed of herself and husband, was sold and converted into money, which by virtue of the marital rights of the- said James Smith Col-burn vested absolutely in him. He denies “that any act or arrangement was ever made or done by the said James Smith Colburn which altered the legal relations of the said property.” He also denies that his testator ever conveyed any property whatsoever in trust to Samuel D. Ward, of Boston, or to any other person by way of substitution for the property derived by the stud Sarah Dunn from the Prince estate; or that the said James S. Colburn ever covenanted to hold any property whatever in trust for the said Sarah as a substitute therefor. He further denies, that the said James S. Colburn was a trustee for his wife or his children, by any direct appointment, or by any act of his own whatsoever. He admits that at the time of the death of Mrs. Colburn, there stood in her name in the banks in Charleston, the shares mentioned in the bill, except as to the number alleged to have been so held in the Planters’ and Mechanics’ Bank, which he states to have been 24 instead, of 44, as charged. And he says that the said James Smith Colburn considered himself entitled to all of the above shares by virtue of his marital rights. That there was no trust whatsoever, either by anti-nuptial or post-nuptial settlement, or separate trust of any kind binding this property, “ even although the money which was invested in said shares of said banks, was a portion of the money realized from tbe sale of the property derived from the Prince estate, by the said Sarah Dunn Colburn.” He also denies that Frederick A. Colburn received any sums of money as his distributive share bf the estate of bis mother, and indirectly alleges that whatever he did receive was a gift by his father to advance him in life.
    The defendant,-Benjamin P. Colburn, states in his answer that James Smith Colburn left Boston and settled, in-Charleston in consequence of commercial misfortunes,. “That he had failed in Boston and came to Charleston to mend his fortunes.” That from his childhood he recollects that his mother had a separate estate in Boston, the income of which she received and enjoyed, and over which she appeared to have exclusive control. That Mr. S. D. Ward, of Boston, was her trustee, and had the management of said estate. I hat the history of his mother’s estate, derived from information obtained in Boston, in 1839, he believes to be as follows: Mary Prince, of Boston, defendant’s grandmother, was, during her life, possessed of a large tract of land situated in the western part of Boston, and known in early times as Prince’s Pasture. By bis grandmother’s death, his mother became entitled to a distributive share of her estate, wbicb bis father received as trustee or executor of Mrs. Prince, and having involved the same in some way in his business, and Ms circumstances being such as to make it improper for him longer to retain the, trust funds, he in substitution therefor, conveyed in 1819), a certain dwelling-house, situated on Beacon street, in, Boston, to S. D. Ward, Esq, of that city, to bold the same-in trust for the separate use of the said Sarab Dunn, as hen separate estate and inheritance. That several years before the death of the said Sarah, her trustee, at ber request and by her authority, sold the said house for $20,00-0,.received the money, and retained and managed it-in trust for tbe sole and separate use of the said Sarah Dunn until her death. That bis elder brother, Frederick A., did at the time of bis mother’s decease, insist upon his share of his mother’s estate, and that tbe same was by bis father allowed, and paid to him as bis right by law, and that he received the same as one of the heirs and distributees of his mother. As to the bank shares in Charleston, standing in the name of his mother, he says that he is not informed of the source whence the money thus invested came, but he does not doubt that i,t was a part of his mother’s patrimony and inheritance.
    The answer of Frederick A. Colburn states, that he knows his mother had a separate estate which she enjoyed during her life, independent of his father, and that it consisted in part and chiefly of the sum of $20,000, held in trust for her by Samuel D. Ward, Esq., of Boston, which was the sales-money of her house on Beacon street, in said city, held by Mr. Ward for her use, and sold by him to Augustus Thorndike. That after his mother’s death his father claimed to have the fund in Mr. Ward’s hands paid over to himself, but this defendant objected, and claimed his distributive share of the same as of his mother’s separate estate, to be divided among her heirs, according to law. That after considerable delay, and under the pressure of impending or threatened legal proceedings, bis claim was allowed, and by direction of his father, Mr. Ward transferred to him the sum of $5,000, as bis share of his mother’s estate, and which was received by him in full of his share therein, and that the residue of said estate in Boston was paid over to his father by Mr. Ward. He states distinctly that his father finally yielded to his claim, and consented that he should be paid the said sum of $5,000, which he received without further contention or inquiry, in full satisfaction of his interest in his mother’s estate.
    Much testimony, oral and documentary, has been introduced. So much only as refers to the question of the separate estate of Mrs. Colburn will be here stated.
    ■ Frederick A. Colburn having disclaimed all interest in the suit, was examined by commission as a witness on the part of the plaintiff, and of the defendant, B. P. Colburn. Much of his testimony is a repetition of the statements of bis answer, which have been already given. The additional facts brought out by his examination are, that his mother had a separate estate which she held and controlled as her own during her life independent of his father. It consisted of real estate which descended to her. Samuel D. Ward acted as her agent in the management of her property until her death. He states that he does not know whether his father consented or not to his receiving $5,000 from Mr. Ward as his share of his mother’s estate. Upon this last point the evidence of this witness seems to conflict with the statement of his answer. He says he claimed $8,000, but received only $5,000. He received it about two years after his mother’s death. That previous to her death the real estate had been sold by her consent and direction.
    In reply to the cross-examination, this witness says, that the propert3r of his mother was received by her in real estate which was sold after her marriage and during her life, and went into the hands of herself and her agent. That his father and mother lived apart from the year 1822 to the year 1836, when she died. His father lived and did business in Charleston, and his mother resided part of the time in Boston, and part of the time in Roxbury, near Boston. As far as the witness knows, she supported herself out of her own money; he never knew of his father remitting any money to her, or leaving any funds in Rox-bury or Boston for her maintenance and support. That his father did not have any property at that time, or at any other time after 1822 in Boston or its vicinity. 'The property and funds of his mother in the hands of Mr. S. D. Ward, as her agent, were not under the ultimate control or power of his father, nor did she hold them subject to his control as his agent. Mr. Ward was Mr. Colburn’s legal adviser while he lived in Boston up to 1822. Mrs. Colburn had no other propertjr left with or for her except that referred, to. Does not know whether his father admitted his claim or not. His claim was not against his father, it Was against his mother’s estate. At the time his father left Boston, which was in 1822, or soon thereafter, he became bankrupt, and had he owned or left any property in Boston at that time, it would have been taken by his creditors.
    This witness annexes to bis testimony a paper signed by S. D. Ward, dated the 8th of September, 1859, which paper he states was furnished to him by Mr. Ward, but of the contents of which he has no personal knowledge. The admission of the paper as evidence is objected to on the part of the defendant Holland. A statement of the contents is here made subject to the objection. The paper states, that in the year 1819, James Smith Colburn conveyed to Mr. Ward a certain dwelling-house and appurtenances in Beacon street, in Boston. The conveyance, though made to him, was understood to be in trust for his wife, Sarah D. Colburn, and was received by Mr. Ward with that understanding. Mr. Colburn, at the time of the conveyance, stated as the consideration of the conveyance, that he had received moneys belonging to Mrs. Colburn as her share of her mother’s estate, which he had applied to his own use, and never accounted for to her. That the property was managed by Mr. Ward, as the trustee of Mrs. Colburn, and the income was applied by him for her sole and separate use. That the house in Beacon street was sold by him at her request for $20,000, and the money invested in personal securities, and the interest paid to her until her death. That after the conveyance by Colburn to Ward, the latter considered-the property as belonging to Mrs. Colburn, and recognized his responsibility to her for its management.
    This paper cannot, I think, be received as a part of the testimony of Frederick A. Colburn the witness who produces it, inasmuch as he states that he has no personal knowledge of the facts stated in it. Nor can it be admitted as the testimony of Mr. Ward, who for some reason not appearing, has not been examined on either side. At first I was inclined to think that the paper might be admitted as a declaration of trust on the part of Mr. Ward, the grantee of the real estate in Boston, alleged to have been conveyed in fee to him. But the deed of conveyance from Colburn referred to in this paper, has not been produced, nor has its non-production been accounted for in any way. There is nothing upon which a declaration of trust is to operate, and no legal evidence to show that Mr. Ward was seized of the legal estate, which he declares was subject to the trust in favor of Mrs. Colburn. I therefore consider the objection well taken, and the paper signed by Mr. Ward is not admitted as a part of the testimony in the cause.
    Certain letters have been introduced on the part of the defendant, Parker J. Holland, from which the following extracts are taken : '
    Letter from Mrs. Sarah Dunn Colburn to Mr. James S. Colburn.
    Boston, February 16, 1835.
    “I notice what you say respecting the new Charleston Bank, which you say is about to be established there, and that Mr. Mordecai and Benjamin wishes me to take from two to five thousand dollars, and let it stand in their name. It may be excellent property, but I do not think it would be as safe as it now is. T should not like to do it. If I did, I should never expecr to see either interest or principal. But if you choose it must be done, I must consent. You always told me to take care of it myself, and I think it will be muob more safe with me than in Charleston.” “ I should have sent you an exact memorandum how my property is placed, but Mr. Ward is out of town. I hold all the papers, etc. I wish you would give me some paper so I could hold all the furniture.”
    Letter from Mrs. Colburn to Mr. Colburn.
    Boston, 16¿/i May, 1835.
    “I have been thinking that if I could find a good house in the country, I would give up my house in Boston.”
    “You still wish me to purchase some shares in the new bank, but I would rather not. If you were in want of the money I would let you have it. I know you have got more than I have, and I think the little I have I had better take care of myself. It will be better for both of us for me to keep what I have got under my own control. At any rate, I could not do it without I sold bank stock, as the other money is loaned for one year from this time. Mr. Ward has no money of mine, and I have not any. I know that there will be a time that you will thank me for wishing to keep the money myself. I shall never touch one cent of the principal without your advice. I shall keep it in such a way that no one can get it, let what might occur, but you. If I should die to morrow, the children could not get one cent of it. It would belong to you.”
    Letter from Frederick A. Colburn to his father.
    Boston, December 31, 1836.
    Expresses an intention to enforce his claim for a share of his mother’s estate by suit. States that he is informed by Mr. Ward, that bis brothers, Ben. and Henry, had written him concerning their share of their mother’s estate. Refuses to consent to certain payments, out of his mother’s estate to Mrs. Howard and the Turner children. Offers to take $8,000 for his claim, to be paid partly in cash, and part on credit, and the balance in a pew. Says he cannot make arrangements with Mr. Ward.
    Letter from Frederick A. Colburn to his father.
    Boston, February 1, 1837.
    Acknowledges a receipt of a letter from his father, and says he has written to Mr. Ward and will look to him for a speedy settlement. Says that his father values the pew too high, etc. Adds, that he has seen the letter to Mr. Ward from Ben. and Henry, and expresses pleasure at their having written, and his hope that they will be settled with.
    Edward Winslow, a witness for plaintiff, says, that he has known Mr. and Mrs. Colburn for many years, but does not know of Mrs. Colburn having any estate except what by reputation she derived through her family, and had in what was known as the Prince estate in Boston, consisting of a dwelling-house and an extensive pasture ground. Her mother and herself lived on the place. Witness was very intimate with Mr. and Mrs. Colburn. Never heard a word from either of them, showing-a want of affection. Mrs. Colburn lived in much comfort in a fine dwelling-house in Boston, indicating an annual income of $3,000. He visited her at Jamaica Plains, a resort near Boston, suitable for a person in comfortable circumstances. Mr. Colburn left Boston without satisfying his creditors. Is of the impression that Mr. Colburn told him that he was willing to pay them twenty cents on the dollar, and thinks whatever settlement he did make was made on that basis. Mr. Colburn was not in good credit with the Boston merchants after he left. Is satisfied that he did not regain his credit there. Mr. Samuel D. Ward is a Boston lawyer of respectability and position.
    Two letters from James S. Colburn to S. D. Ward are introduced by the plaintiff. The first dated Charleston, August 14, 1837, acknowledges- receipt of letter from Mr. Ward enclosing forty-five shares in Bank of United States, with power of transfer. Cost of shares $5,332.50, for which sum a receipt is annexed for so much paid by S. I). Ward, “ on account of money in his hands, intrusted to him by the late Mrs. S. D. Colburn.” The letter directs other funds invested in the same way. Gives notice that Mr. Mordecai is authorized to draw on Mr. Ward for $1,500, and says, “ this business was done exactly right and to please me.”
    The second letter is dated Charleston-,■ October 31, 1837, and acknowledges receipt of certificates of fifty-three shares in the United States Bank, costing $6,380.25, for which a receipt is given for so much paid by Mr. Ward “ on account of money in your hands, intrusted to you by the late Mrs. Colburn.”
    A petition was filed by James Smith Colburn, in the Court of Ordinary for this District, some time in 1843, in which application was mad- for letters of administration on the estate of his wife. The petition states that at the time of her death “ there stood on the books of the Planters’ and Mechanics’ Bank, twenty-four shares in the capital stock of said bank, and also three (or six) shares in the capital stock of the Bank of South Carolina.” That he was desirous of having the said shares “ transferred to him with all the dividends due thereon; but the directors of the said banks refuse to transfer the said shares without administration is taken out on the estate and effects of the said Mrs. Sarah Dunn Colburn.” He therefore prays letters of administration on the said estate. On the 28th December, 1843, the said letters were granted by the Ordi.nary. On the 80th of October, 1844, Mr. Colburn, upon receipt of a circular from the Ordinary, requiring a return, filed an inventory in which the shares in the Planters’ and Mechanics’ Bank and in the Bank of South Carolina, mentioned in his petition are set down, and the following statement made in respect to other stocks: “ There was also standing in the name of Mrs. Sarah D. Colburn, at the time of her death, nine shares in the Union Bank, and three shares in the State Bank, which were transferred to me by order of the solicitors of said banks, as they were my property by right, as there was no marriage settlement. There is no other property to my knowledge.” From a memorandum submitted to the Ordinary at the time the inventory was filed, it appears that the value of the shares in the four banks was estimated at $1,645.
    in considering whether the facts presented in the foregoing statement, establish the proposition contended for by the plaintiff and by the defendant, Benjamin P. Colburn, that their mother was possessed at the time of her death, of a separate estate in Boston, there are certain facts derivable from the pleadings which may be considered as admitted by the parties to this controversy. These facts are, that Mrs. Colburn after her marriage with the testator, inherited through her mother, a considerable real estate in Boston, and that she was entitled to no other property in her own right. That the said estate of inheritance was sold during the coverture, and the proceeds appropriated by her husband to his own use. That he was insolvent at or about the time' of the said sale and conversion, and thereafter lived separate and apart from his wife in another State. That notwithstanding this conversion, insolvency, and removal, Mrs. Colburn continued for thirteen years to enjoy in the State where her inheritance was acquired, a considerable-property undisturbed by her husband’s creditors, and independent of his dominion and control. The natural presumption arising from these facts alone is, that the property enjoyed by Mrs. Colburn in Boston, from the time her husband removed from that city in 1819, to the time of her death in 1836, was in some way connected with her inheritance derived through her mother. It is not claimed that the property so enjoyed by her, was a part of her original inherited estate, and excluding the written declaration of Mr. Ward, there is no direct competent testimony which shows from whom the said property was immediately derived. But notwithstanding this uncertainty, as to the origin of the alleged separate estate, I think it may be assumed from the facts admitted, that the relinquishment by Mrs. Colburn of her inheritance, was not voluntary, but for a valuable consideration, and that the property which she enjoyed from 1819 to 1836, was that consideration. By the laws of Massachusetts, the real estate of the wife can only be conveyed by the joint deed of the husband and wife, (Rev. Stat. of Mass. Part 2, ch. 59, Sec. 2,) duly acknowledged and recorded. {Fowler vs. Shearor, 7 Mass. R. 14.) And it has been held in that State, that the relinquishment by a wife during her husband’s life of her estate in lands, is a good and valuable consideration for a conveyance by the husband to the wife, of property which may be considered but a fair equivalent, and such conveyance if not fraudulent, will be valid as against the creditors of the husband. {Ballard vs. Briggs, 7 Pick. 533.) As a general proposition it cannot be doubted, that a wife by means of property which she acquires in her own right, may become a purchaser from her husband, and that a post-nuptial settlement of a husband’s property upon his wife and children, based upon an actual purchase made in good faith, or for a valuable consideration, will be good against prior as well as subsequent creditors. It would be a violent presumption that Mrs. Colburn without consideration parted with her entire estate at a time when the insolvency of her husband, and his residence apart from her, rendered it almost certain that she had nothing to expect from him in the way of maintenance. Under the circumstances in which she was placed, she was entitled to a settlement out of her property, and the Courts of Massachusetts would have enforced her equity to such settlement, her husband being bankrupt, out of the real property which came to her by inheritance, and such settlement would be valid against her husband and all claiming under him.
    In the answer of the defendant Holland, it is stated, that the undivided interest of Mrs. Colburn in the Prince estate, was by the joint deed of husband and wife, sold in 1823. It appears from the testimony that Mr. Colburn had no property in Boston after 1822. The allegation of the answer, therefore, may be strictly correct, that Mr. Col-burn never conveyed any property whatsoever in trust by way of substitution for the lands inherited by his wife. This is not directly inconsistent with the presumption that in 1819 he purchased and settled for the interest of his wife in his mother’s lands, though the latter was not sold until four years thereafter. Frederick A. Colburn in his testimony says, “at the time myfather left Boston, or soon after he left there, which was in 1822, he was deeply indebted and bankrupt.” There may have been a reason for securing the purchase by paying the consideration before public insolvency, and for postponing the sale to a period subsequent to his removal from Boston. As long as the interest of Mrs. Colburn in her inherited estate was an undivided one, the legal estate of the husband in his wife’s real estate, had not so vested as to be subject by the laws of Massachusetts to the claim of his creditors.
    The answer of the executor states, that the proceeds of the sale of Mrs. Colburn’s lands by virtue of the marital rights, vested absolutely in his testator. This being in 1823, a year after Mr. Colburn’s permanent settlement in Charleston, it may be that the postponement of the sale of the Prince Pasture, and the vesting of the marital rights in the proceeds, had some connection with the purpose of his removal to Charleston, which (according to the statement of Benjamin P. Colburn) was “ to mend his fortunes.”
    The presumption that the property, enjoyed by Mrs. Colburn was the consideration for the release of her inheritance,-is also consistent with the declaration of her husband, who received the benefit of that release, that he had made provision for the support of his wife and children, “in some way,” as expressed in one of the answers, “ out of the wreck of his business.” I am disinclined to believe that the testator appropriated to his own use the proceeds of his wife’s estate, and left her and her children to depend for subsistence on the bounty of strangers; and even if this were possible, it would be scarcely conceivable, that when she had acquired a second estate, he would claim that also, to the exclusion of bis children. It is much more probable that Mr. Colburn did make provision out of his embarrassed estate for his family in Boston, and as an equivalent for said provision, received subsequently, and when it could most effectually aid him, the proceeds of his wife’s inherited estate. It may be, as suggested by Benjamin P. Colburn in his answer, that his father had “ involved in some way, the estate of his mother in his business,” and that this was the consideration for the provision made for her. This is perfectly consistent with the presumption, that the property she enjoyed was the consideration for her parting with her estate of inheritance, and with the fact of her enjoyment of said property unmolested by her husband’s creditors. In the case last put, Mrs. Colburn would be regarded as a purchaser from her husband, by applying her estate to the payment of his debts,' which would be upheld in equity against the claims of his creditors. The interest of Mrs. Colburn in the Prince estate, although not converted by her husband in 1819, Avhen she acquired the property, Avhich she enjoyed during her life, may have been then pledged for the debts of her husband, and if so, it was a present, and consequently, a valid consideration, or inducement for the provision made for her in 1819. And this view is further consistent with the connection of Mr. Ward, either as trustee or agent, in the transactions relating to the property of Mrs. Colburn. He is represented by the testimony as a lawyer of position and respectability, and as such,, cannot be supposed to have participated in the transfer of property by Mr. Colburn to his wife, which Avould be in fraud of the rights of his creditors. Excluding the paper signed by Mr. Ward, and also the answer of Benjamin P. Colburn, Avhich as to matters in which he- has an interest, is not evidence against his co-defendant Holland, and there is no direct evidence as already stated, on the point we are considering. Frederick A. Colburn says in his testimony, that his mother received her share of the Prince estate in real property, and in his answer referring to her separate estate, he says that it consisted chiefly of the sum of $20,000, which was the proceeds of the sale of her Beacon street house. But he does not state how the latter property A\7as-acquired, or in what way it was connected with his mother’s share of the Prince estate. If the Beacon street house could be regarded as the inherited real property of Mrs. Colburn, then her husband’s estate in said property terminated with his life, and his wife’s inheritable issue, including the present claimants, would take by' direct descent from their mother. But it is admitted that the Beacon street- house was sold in the life of Mrs. Colburn, and sold without her husband joining in the conveyance. He therefore could have had no legal estate of any kind in the property at the time of its sale. If he ever did have such an estate he had divested himself of it, and in so doing, parted with his right to control its disposition, or to subject the proceed of its sale to any trust, either for himself or for another.
    It has been already stated, that there is nothing in the answer of the executor which directly rebuts the presumption that Mrs. Colburn was entitled as purchaser from her husband, to the beneficial interest in the property now claimed to be her separate estate. In fact, the answer gives no information as to how it was derived or from whom derived. It however does distinctly deny that Mr. Colburn “ ever covenanted to hold any property whatsoever, in trust for the said Sarah, as a substitute ” for the Prince estate, or that he was “ trustee for his wife, or his children, by any direct appointment or acts of his own whatever.” This I think is true. It is certainly consistent with the allegation that he conveyed the fee in the Beacon street house to Mr. Ward, and left him to declare or act upon any trust that he might consider binding upon him iu respect to the said property. That Mr. Ward had the legal power to create a trust therein, for the sole and separate use of Mrs. Colburn, cannot be doubted. It is, however, contended that no such trust is evidenced by writing, and, therefore, none can be held to have been created in the Beacon street house. Excluding the paper of Mr. Ward, offered in evidence, it may be conceded that there is no writing by which such a trust is manifested in respect to the said real property. There is certainly nothing which shows that Mr. Ward held in trust for Mr. Colburn, after the termination of a beneficial life-estate for his wife. But there is evidence that the rents and profits of the said property up to the time of its sale, were applied by Mr. Ward to the separate use of Mrs. Colburn. This Mr. Ward had a right to do, considering the property as his own, unincumbered with any trust. He also had the right to dispose of the said house. The power to sell was an incident of his legal title, and Mr. Colburn having conferred the tide, those claiming under him cannot dispute the exercise of the power. The sale by Mr. Ward, and the investment by him of the proceeds in stocks and securities for money,' did not change the legal estate. It remained in Mr. Ward, and the question is, did he hold the said substituted personalty in trust for the sole and separate use of Mrs. Colburn ?
    I conceive it to be a well settled doctrine of this Court, that personal property of any description, may be limited to the use of a married woman. But “ whether that use shall be separate or not, and whether her husband shall be barred of the interest which the law gives to him in the possession of his wife, depends altogether on the intention of the donor.” When that intention is once ascertained to be, that the use is for the wife alone, and not for her husband, equity will give effect to it without any regard to the legal maxim, that “ the husband is the head of the wife, and therefore all she has belongs to him.” There is another rule equally well settled, that a valid trust of personalty to the separate use of a married woman, may not only be created but established, and proved by parol. Who, then, was the donor of the personal property which it is claimed constituted the separate estate of Mrs Col-burn ? Was it Mr. Ward ? Then his intention is a proper subject of inquiry — in view of the fact that the absolute legal title was in him, subject to a trust which has not been clearly established. It is certain that Mr. Ward claimed no beneficial interest for himself. This he has never claimed, and his management of the property rebuts any presumption of that kind. He may have continued to hold the legal estate in his own name, and probably did until her death; for upon the happening of that event, he was enabled, without administration, to transfer the property to another person, and to another State. But it is clear, that during the life of Mrs. Colburn, he managed the estate for her sole and exclusive benefit. He accounted to her for the income, and paid it over to her until her death for her separate support and maintenance. Upon her death he recognized the claim of one of her children, to a distributive share of the said property, and paid it over to him; and upon transferring the residue to her husband, required and obtained receipts from him which expr.essly declared that the fund had been “intrusted to him (Ward) by Mrs. Colburn.” The fact that Mr. Ward, after settling with Frederick A. Colburn, for his share in his mother’s estate, remitted the balance to Mr. James S. Colburn, at Charleston, is relied upon as showing that he did not consider himself as a trustee of Mrs. Colburn. But the answer to this is plain. Before sending the fund to South Carolina, he paid the claim of the only son of Mrs. Colburn, who was then residing in Massachusetts, and sent the balance to the father, with whom the two other sons were living, and to a State, the law of which was to govern the distribution. He knew that these sons were then claiming or had claimed, under the laws of South Carolina, their shares in their mother’s estate, and unless he distrusted the ability or integrity of their father, which there is nothing to show, he could in no way have so effectually aided the present claimants in the assertion and recovery of their rights, than by sending the fund out of a State, where the right of the husband to the entire personal estate of the wife is upheld, and by remitting it to a jurisdiction where the rights of the children, as distributees, would be recognized, and where they could most conveniently enforce their claim.
    If Mr. James S. Colburn is to be regarded as the donor of the property, the use of which his wife enjoyed in Boston, then the question as to his intention becomes a more important one than it would be if the trust had been created by a stranger. Eor it cannot be disputed that a husband may make a provision for the maintenance of his wife living apart from him, without relinquishing the title in his marital right to the property which is the subject of the provision. The rule seems to be, that if the husband, by his acts or his declarations, furnish clear and incontrovertible evidence that he intended to divest himself of the title to the property enjoyed by his wife, and that her right to a separate estate therein, was recognized by him in intention and fact, this will alone be held to vest in her as against him and all claiming under him as volunteers, an unimpeachable and exclusive right of property. (Roper on Husb. and W. p. 134-139.) We have indicated the opinion that the legal title of Mr. Colburn to the property enjoyed by his wife, was divested by his own act, not as a voluntary gift, but for a consideration, which was valid against him and against his creditors. In this view of the case, the question of intention is not material. But upon the supposition that it was a voluntary gift, the intention is a proper subject of inquiry. If it be plain that the husband intended to surrender his entire interest by a clear irrevocable gift, and allows his wife to apply the property to her own separate use, it will be considered in equity as her separate estate. (Story’s Eq. J. §§ 1374, 1375, and cases cited in notes.) It is certain that during the life of Mrs. Colburn, her husband asserted no claim to the funds in Boston, and exercised no act of dominion over them. It appears from the correspondence between himself and wife, that'the funds were invested in public stocks and securities for money. He did nothing to reduce these into possession, either by requiring a transfer into his own name or otherwise. He permitted her to enjoy them under circumstances which, by the laws of Massachusetts, sub-iected them, even if they stood in his own name, to her control and disposal, and to all the incidents of legal ownership in herself during his absence from that State. {Rev. Stat. of Mass. chap. 17, p. 485.) Ilis desire to call in these investments and substitute stocks in Charleston, for those held in Boston, was not accomplished, owing to her objection to the removal of the fund, and to her judgment being opposed to the change of investment proposed by her husband. In the letters of Mrs. Colburn, to which the above allusion refers, there are expressions which are supposed to be inconsistent with the fact of her having a separate estate, “ independent of the ultimate control and power of her husband.” In the letter to her husband, dated 16th May, 1885, referring to the proposed removal of a portion of the fund to Charleston, she uses this language : “ I know there will be a time that you will thank me for wishing to keep the money myself. I shall never touch one cent of the principal without your advice. I shall keep it in such a way that no one can get it, let what might occur, but you. If I should die to-morrow, the children could not get one cent of it. It would belong to you.” There seems to me to be necessarily involved in this language, the assumption on the part of Mrs. Colburn, that the property to which she refers, was her separate estate. If not, how could its removal from Boston to Charleston affect her husband’s right to it upon her death ? If the property was his and not hers, he would be entitled to it as well in the latter as in the former place. But if her separate estate, then, by the laws of Massachusetts, the husband alone is entitled in right of his wife, to her entire personal property; while in South Carolina, her children and her husband take as distributees. This she urges as a reason for not consenting to the removal of the fund, and the expression, “ I will hold it in such a way that no one can get it * * but you,” manifestly refers to her retaining it in Massachusetts, where she very naturally but erroneously supposed it would be subject upon her death to the laws of that State regulating the distribution of a wife’s separate estate. That Mr. Colburn consented to the payment, by Mr. Ward, to Frederick A. Colburn, of $5,000, as his share of his mother’s estate, is evidenced by the letters of the latter, in which he proposes terms of settlement to his father, and discusses with him the value of a pew in Boston, which was to be taken in the said settlement. The acquiescence of James S. Colburn in the payment of his son by Mr. Ward, is further manifested by his letter to the latter after said payment was made, in which he expresses his satisfaction in these words: “ this business you have done exactly right and to please me.” There is one other fact already referred to wrhich I think is conclusive on this point. The two receipts of Mr. Colburn, to Mr. Ward, for the surplus of the fund remitted to Charleston, expressly state that the amounts so remitted, were “on account of money in his (Ward’s) hands, intrusted to him by the late Mrs. Sarah D. Colburn.” It seems to me that all the acts of Mr. Colburn before, and immediately after the death of his wife, evinced his concurrence in her being sole owner of the property in Boston, and after a careful consideration of the testimony, the conclusion that it was, in some way, her separate estate, is to my mind irresistible. I find that the value of the said estate at the time of Mrs. Colburn’s death was $20,000.
    It is alleged that Mrs. Colburn had a separate estate in Charleston as well as in Boston. This is based upon the fact that at the time of her death there was standing in her name certain stocks in several banks in this city. The answer admits the fact alleged in the bill, except as to an error in the statement by the plaintiff of the number of shares in the Planters’ and Mechanics’ Bank. The evidence sustains the answer, that there were only twenty-four shares in that bank, instead of forty-four as charged by mistake in the bill. The origin of these investments is involved in even more obscurity than that of the property in Boston. The pleadings give no information as to when or by whom the investments were made, nor .to whom the dividends were paid, and the testimony is entirely silent on the subject. But this, I conceive, is not important. The fact' that the stock was in Mrs. Colburn’s name, is prima facie evidence that they belonged to her, and this has been held sufficient to establish a separate estate in the wife. (Wildman vs. Wildman, 9 Yes. 134; Dunning vs. Pitcher, 5 Sim. 35.) There is no evidence that this stock was ever vested in Mr. Colburn, and it is clear that he did no act during the life of his wife to reduce it into possession. It is argued that the fact of Mr. Colburn taking out letters of administration, on the estate of his wife, amounts to an admission on his part, that the said stocks belonged exclusively to her. Whatever may be the legal consequences of an administration by the husband, I do not think that the grant to Mr. Colburn can, in itself, be regarded, under the circumstances of this case, as an admission by him that the stock was the separate estate of his wife. This presumption is rebutted by the fact that his petition for said letters in 184’3, states that his purpose in making the application was to have the stocks “transferred to him with all the dividends due thereon.” And his subsequent acts as administrator, show that his sole object in taking out administration, was to aid him in converting the stock to his own use as husband of the deceased. In the second petition of Mr. Colburn to the Ordinary, dated the 27th of March, 1858, he claims to be entitled to the entire estate as sole heir and distributee of his wife. It may be remarked in respect to this petition, that if Mrs. Colburn did not die seized of a separate estate, her husband could .not take as heir or distributee. Or if it be held as suggested in the answer of his executor, that by this language he intended to claim in his marital right, then this involves the admission that the stock was once hers, and no frauds against his rights as husband being alleged in respect to the investment in her name, the fact of his not having reduced them into possession during her life, is equally fatal to his claim. I find that Mrs. Sarah Uunn Colburn was entitled, as of her separate estate, at the time of her death, in addition- to the Boston fund of $20,000, to the following bank shares in Charleston: 24 shares in the Planters’ and Mechanics’ Bank; 6 shares in the Bank of South Carolina; 9 shares in the Union Bank; and 3 shares in the State Bank. And that the value of these shares, according to a memorandum furnished by the administrator to the Ordinary at the time of filing the inventory of the estate, was $1,645.
    Having thus affirmatively disposed of the question, whether Mrs. Colburn was possessed at her death of a separate estate, the next inquiry under our first head is: Upon whom did the said estate devolve upon her decease ? And this depends solely upon whether the State of Massa: chusetts or of South Carolina is to be regarded as the domicile of Mrs. Colburn. The bill alleges that Mrs. Col-burn in leaving the State of South Carolina, in 1819, had no intention of changing her domicile, nor did she ever abandon her intention of returning to that State. The answer of the defendant, B. P. Colburn, corroborates this statement of the bill. He says that his mother considered Boston as a temporary residence, for the education of her children, and looked forward to her return to Charleston, where she expected to pass her latter days. The answer of the executor denies that Mrs. Colburn ever intended to return to South Carolina, and states that she on the contrary frequently expressed her intention never to return, although frequently requested so to do by her husband. Whatever may have been the intention of Mrs. Colburn, it seems to me to be unimportant. It is tbe intention of the husband that governs. His domicile is the domicile of the wife. The fact that Mr. and Mrs. Colburn lived apart for fourteen years, did not make them any the less husband and wife. They were never loosed from the matrimonial bond. They might at any time again live together. The domicile of Mr. Colburn was undoubtedly Charleston, and though his wife may never have intended to return to that city after she left it, this could not change the legal relations growing out of the marital state. Another principle equally well established, is that the devolution of personal property, follows the law of the domicile, and South Carolina being in law the domicile of Mrs. Colburn, her estate was distributable according to the laws pf that State. Mrs. Colburn left surviving her a husband and three children. Two of the latter are the plaintiff and the defendant, B. P. Colburn, and I find that they were each entitled upon the death of their mother to two-nintbs of her estate.
    2. If the present claimants were entitled upon the death of their mother to distributive shares of her estate, are they now precluded from asserting their claim by lapse of time, or other matter subsequent thereto ?
    The bill states that after the death of Mrs. Colburn, her husband without administering upon her estate, received from Samuel I). Ward, directly or indirectly, the sum of fourteen or fifteen thousand dollars as a part of her estate. That a considerable portion of this sum was remitted to Mr. Colburn by his direction in scrip of the capital stock of the United States Bank at Philadelphia. That he further possessed himself without administration of certain bank stock in Charleston belonging to his wife. But the Planters’ and Mechanics’ Bank and the Bank of South Carolina, refusing to pay him the dividends arising from their stocks without administration on the estate of his wife, be some time in the year 1844, applied to the Ordinary of Charleston District, for letters of administration, to which application the plaintiff objected, but the Ordinary, notwithstanding said objection, granted the application. That on the 30th of October, 1844, an inventory was filed by the said administrator which made no reference to the moneys received from Samuel D. Ward. That three accounts were subsequently filed by him, one on the 30th of October, 1844, one on the 30th October, 1847, and the last on the 14th of July, 1853.’ These accounts disclosed no indebtedness whatever on the part of the intestate. At the time of making the last account the administrator made a declaration in writing, that the whole estate belonged to him, and that he in his own right had consented to receive the same from himself as administrator. Afterwards, on the 27th of March, 1858, he applied to the Bank of South Carolina and to the Planters’ and Mechanics’ Bank, to transfer to him the stock standing in the name of his intestate, but this the said banks refused to do without authority from the Court of Ordinary, and he then filed his petition to the said Court, stating such refusal, and-that he had rendered annual accounts, “ exhibiting a settlement of said estate with parties interested,” and of which estate he the petitioner “ was the sole heir and distributee,” and further stating that “ to complete a settlement of these assets with parties interested, it was necessary to make a sale and transfer of said shares.” The bill further states, that J. S. Colburn, on the 5th of May, 1859, executed a certain paper purporting to be a deed, which was never delivered, conveying to the plaintiff in consideration of the sum of five thousand dollars, which the said plaintiff never paid or promised to pay, certain land in the State of Massachusetts, to which the said J. S. Colburn never had a title. The only advantage which the plaintiff states he expects to reap from this writing, is what may result from an acknowledgment of indebtedness by the maker, to the extent of the consideration named therein.
    The executor, Parker J. Holland, states in his answer that he has heard that his testator was possessed of certain shares in the United States Bank, and that the whole of the money so invested was lost in the failure of that institution, but he does not admit that the money invested in said shares had any connection whatever with the supposed separate estate of Mrs. Colburn.. He admits that J. S. Colburn possessed himself of the shares in the Union Bank and State Bank before administration, and that the said banks made the transfer upon the following certificates of the solicitor of one of said banks, and of the defendant, B. P. Colburn:
    “ Mr. Colburn can have the shares transferred into his own name, he being legally as husband entitled to them.
    “(Signed) ¥i. Lance,
    “ Solicitor.”
    ■ “ I certify that there was no marriage settlement, either before or after marriage, between my father, James Smith Colburn, and my mother, Sarah Bunn Colburn, and that there is no claim on the part of myself or any other member of the family to prevent his marital rights attaching on certain shares in the Union Bank of South Carolina, standing in the name of my said mother, (now deceased,) which shares can be transferred to my father in his own name
    “(Signed) B. P.'Colburn.
    
      “Charleston, November 10, 1887.”
    The executor admits that Mr. Colburn filed his petition for administration in the latter part of 1848, in which he stated that certain shares stood in the name of his wife on the books of the said banks, and that he wished the shares transferred to him with all the dividends due thereon; and that the directors of the said banks refusing to transfer the same to him, unless he took out letters of administration, he applied for the same. That the application was opposed by the plaintiff', but the letters notwithstanding, were granted on the 28th of December, 1843. The answer states that on the 23d of January, 1844, James S. Colburn transferred the twenty-four shares in the Planters’ and Mechanics’ Bank into his own name, in which they continued until the 3d of September, 1851, when they were sold and the proceeds converted to the use of the said J. S. Colburn. On the 25th of October, 1844, the administrator was called upon by a circular from the Ordinary, to make a return of the said estate, and that in obedience to said mandate, he filed an inventory on the 30th of October, 1844, in which he states the fact of the transfer to him, without administration, of the stock in the Union and Stat: Banks, and alleges as the ground of said transfer that the said stocks were his property by right, there being no marriage settlement. He also returned the shares in the Planters’ and Mechanics’ Bank and the Bank of South Carolina, stating that the said banks would not transfer them without letters of administration. He further stated in this return that there was no other property to his knowledge. On the said 30th of October, 1844, the administrator rendered to the Ordinary his first account, in which he charges himself with the dividends received on the Planters’ and Mechanics’ Bank stock, and on the Bank of South Carolina stock, from July, 1834, and made oath “that he had received no other money on account of the estate of Sarah D. Colburn, than as therein credited.” Similar returns were made on the 7th of October, 1848, and on the 14th day of July, 1853, at which last date there was a balance in his hands of dividends amounting to $1,596.92. To his last return the administrator deposed that the entire assets of said estate had long since vested in and exclusively belonged to him, and that he as administrator had assented to and received the same in his own right, and “ that the accompanying certificates (referring to the certificates of Wm. Lance, Solicitor, and B. P. Colburn, already cited) will further confirm the above statement; that in all other respects the assets of said estate were fully administered and settled, and prays the same may be so declared.” Upon which affidavit and declaration the Ordinary made the following entry:
    
      “ I do hereby certify, that I have this day examined the foregoing account; that James Smith Colburn, administrator, upon his oath, declared that he had received no other moneys on account of the estate of Sarah D. Colburn, deceased; and as appears by annexed affidavit and certificate, that annexed account is a true statement of the actual condition of funds therein stated, and that the same be declared to be fully administered and settled, and that he acknowledges the receipt in his own right, of all the estate mentioned in the return.
    “ Final settlement.
    “ George Buist, O. O. D.
    
    “ lUh July, 1853.”
    On tbe 27th of March, 1858, J. S. Colburn presented in the Court of Ordinary a petition, in which he states that “ an inventory of said estate has been filed for record, and annual accounts rendered, exhibiting a settlement of said estate with parties interested, and in which your petitioner was the sole heir and distributee. That the assets of said estate consisted of six shares in the capital stock of the Bank of South Carolina, also, of forty-four shares in the Planters’ and Mechanics’ Bank, held in the name of the said intestate, Sarah D. Colburn; that to enable your petitioner to complete a settlement of the assets-with parties interested, it is necessary to make sale and transfer of said shares, but the said banks object and refuse so to transfer without the sanction and order of a competent Court, and he is advised, it is now required by law, to authorize a legal sale and transfer, and prays the grant of proper orders of sale.” Upon this petition, an order was made by the Ordinary, granting leave to the administrator to sell and transfer the six shares in the Bank of South Carolina, with directions that “ the account sales thereof be filed for record in said office.” No account was ever filed. The defendant, Holland, states, that under this order the said shares were sold by the administrator, who possessed himself of the proceeds thereof.
    The executor of James S. Colburn, submits as to the Boston property, that the lapse of time which has intervened between the death 'of Mrs. Colburn, (1836,) and the date of the present claim, (1859,) is amply sufficient to protect the estate of his testator, and is a complete bar to such antiquated claim. And he pleads the statute of limitations as to so much of the claim of the plaintiff as refers to the property which came into his, testator’s, hands as administrator.
    B. P. Colburn states in his answer, that the money received from Mr. Ward by his father, and the stocks in Charleston, of which he got possession, were applied by his father to his own use. He remembers there was some difficulty at one time about the stocks, and his father obtained from him his signature to some paper, but what said paper was, or its intent and purpose, “ he does not venture to answer from memory.” A letter from B P. Colburn to his father, dated July 29th, 1841, has been introduced, in which the writer says, Frederick has “ received his full proportion of my mother’s estate, when your investment of our proportion (referring to the shares of his brother John H., and himself) has allowed it to be swallowed up in the destruction of the United States Bank.”
    It is manifest that James Smith Colburn, from his wife’s death in 1836, to his own death in 1859, a period of twenty-three years, claimed the separate estate of his wife as his own. This is evidenced by his opposition to the claim of his son Frederick, for a distributive share of the said estate, and by his appropriation of a part of the said estate to the payment of a personal obligation to Mr. Mordecai, while tie property remained in Boston. After the fund was transmitted to Charleston, he asserted his right to it, by transferring into his own name, the United States Bank stock, in which form the remittances, by his direction, were made by Mr. Ward. As to the stock in the Charleston banks, standing in the name of his wife, he claimed title in himself when, in 1837, he asserted his right to the said shares, and caused a portion of them to be transferred into his own name. In short, he from the first, and during the whole period of twenty-three years, assumed to be the owner of, and acted upon the assumption that he was entitled to both the Boston and Charleston property. If Mr. Colburn can be considered as a mere stranger, occupying no fiduciary or other trust relation to the property or to his co-distributee, and if he had immediately upon the death of his wife, converted her entire estate to his own use, without seeking the aid of the law to effect said conversion, it seems scarcely to admit of doubt, that under such circumstances, his title, by lapse of time, would have been perfected against the present claimants, provided they were under no disability, and with full knowledge of their father’s claim had acquiesced in it up to the filing of the bill. In 1837, both the plaintiff and the defendant, Benjamin P. Colburn, were of full age, and knew that their father claimed to be entitled to the Boston estate-of their mother. The former states in his bill, that he discontinued the prosecution of his claim for a distributive share of said estate, upon being told by- his father that the same belonged to him. And as to the Charleston bank stock, he knew in 1843, when he opposed the application of his father for administration, that a portion of the shares had already been converted by him to his own use, and that the sole object of the application was to enable him to convert the rest. All this was stated in the petition for administration which the plaintiff was opposing, and which opposition he states in his bill was made, not expecting to derive therefrom any advantage, inasmuch as he then believed his father’s declarations that they belonged to him. As to Benjamin P. Colburn, the evidence of notice is, if possible, still more clear. He was of age at the time of his mother’s death, and, together with the plaintiff, asserted his claim to a distributive portion of the estate in Boston, and then abandoned it. He states in his answer, that upon the death of his mother, his father represented and claimed that the estate was his own. Acting upon this representation, the said defendant signed a certificate that the Union Bank stock belonged to his father in his marital right, and by said certificate he effectually aided in obtaining for him, both from the said bank and from the Ordinary, a recognition of that right. It seems to me to be incontrovertible that the present claimants have for twenty years slept upon their rights, and permitted the claim of their father to the entire estate to be asserted without protest or interference on their part, and his enjoyment of the property under said claim to continue undisputed up to the time of his death.
    Here, then, is a case, of persons of full age and under no legal disability, knowing that another held the possession and claimed to be the owner of their property, not only assenting to such possession, but aiding him in the assertion of the right of ownership. If the case rested upon these facts alone, it would fall within the rule of equity, as well as of law, that where one having interest or title, acquiesces knowingly and freely in the possession and beneficial enjoyment of his property by a person pretending to title, he shall be bound after the lapse of four years.
    But the plaintiff and defendant endeavor to withdraw themselves from the operation of this rule, by claiming as cestuis que trust, and relying upon the general doctrine of this Court, that an express trust will not be barred by any length of time, there being in such case no adverse possession in the trustee. And cases are cited in which accounts have been decreed against trustees, extending over periods of thirty and forty years. One of these cases, Wedderburn vs. Wedderburn, (2 Keen, 749,) is specially relied upon. But in that case the familiar distinction was clearly recognized both by the Master of the Bolls and the Lord Chancellor, that if the trustee, with the full knowledge and consent of the cestui que trust, has divested himself of that character, and the person beneficially interested was aware of his rights, and informed of all the particulars of the trust transactions, his acquiescence for twenty years will be a bar to his remedy in this Court for an account. Although Mr. Colburn can in no view of this case be regarded as charged with the execution of an express trust, but of one created by implication of law, in which the plea of lapse of time is more readily admitted, still applying the rule as applicable to express trusts, and it seems to me that in this view of the case the claimants have lost their right to the relief which they seek. We have already seen that from 1836, Mr. Colburn held adversely to his children, and that from 1837, they were both in a situation to become acquainted with their rights, and from that time to the filing of the bill in 1859, they acquiesced in being deprived of them by their father. It is said that here, as in the case of Wedderburn vs. Wedderburn, “ the title is still in dispute,” and that, therefore, there could have been no such acquiescence as would bar the claimants’ rights.
    The title in the cestuis que trust in the case cited, depended upon the result of a complex partnership account, which had never been settled, and which they had never been in a situation to investigate, and therefore acquiescence on their part was impossible, and time as a bar, could only run from the commencement of such acquiescence. But in the present case, there never has been any such dispute as to the title. It depended on no account to be taken; and upon no state of facts the knowledge of which the present claimants did not possess. Upon the death of Mrs. Colburn, the means of ascertaining the value of her estate, and of what it consisted, were as available to them as to their father. They had an immediate possessory title to the same interest in her estate, and to the same extent as their brother in Boston had. They knew of his claim as a distributee, and of its recovery by him. They preferred their own claim in the same right as distributees, and with all the facts which were necessary for the assertion of that right within their reach, they voluntarily abandoned their claim. Assuming that Mr. Ward was the trustee of Mrs. Colburn, he must be'considered after her death as a mere dry trustee, Avitb the simple and obvious duty of making division himself among her distributees, or-of paying over the estate to her administrator to be distributed by him. Mr. Colburn in receiving the Boston fund from Mr. Ward without administration, became by construction of law a trustee for his co-distributees, and there was nothing to prevent the present claimants from requiring him to account in this Court for their shares in said estate. It is true that where there is no administration, suit can neither be maintained at law nor in equity against an estate. But the claimants had it in their power to require Mr. Colburn as next of kin of his wife to administer, and if he declined doing so, to administer themselves. The case then is simply this: one of several distributees takes and holds possession professedly for himself alone. His co-distributees are fully informed of their rights, and are under no disability, and failing to assert their claim within four years, the later authorities seem to hold that their remedy will be barred. And this appears to be the law applicable to constructive trustees, even when they obtain title in themselves through the practice of fraud. In a recent case decided in this Court, Bead vs. Bead, in which the representatives of a trustee are required to account after a lapse of over forty years, the. Chancellor who pronounced the Circuit decree cléarly maintains the doctrine which we have applied to this case. In commenting upon the plea of the statute of limitations as a bar to an account claimed against a constructive trustee, he says, “ where one gets the title of property in himself thrpugh the practice of fraud in any of its innumerable shapes, * * there is an open denial of the rights of the cesiui que trust, and an assertion of adverse title. And if in such cases the cestui que trust advertised that the security of his title is assailed, and being under no legal disability, fails to vindicate it with reasonable diligence, he cannot justly complain that the individual interest to which he is so indifferent, is made to yield to the demand of society, ui sit finis litium.”
    But it is contended that the administration granted to Mr. Colburn in 1843, related back to the death of the intestate, and that he is therefore to be considered as having taken the Boston fund, and the shares in the Union and State Banks, which he had converted ‘before the grant of administration, in his right as administrator, and that he incurred all the disabilities and responsibilities incident to that character, in respect to the said property. Assuming that the administration of Mr. Colburn in December, 1843, related back to the time of the death of his intestate in 1836, so as to impose upon him all the duties and responsibilities of a direct technical trustee, in respect to the assets received by him during the intervening period of seven years, it still seems to me that the principles which have been already stated, are applicable to the case of one against whom an account is claimed in his character as administrator. The rule seems to be, that as long as the relation of trustee and cestui que trust, or of administrator and distributee, is acknowledged to exist between the parties, and the trust is continued, lapse of time can constitute no bar to an account or other proper relief. But when either of these relations ceases to exist, or where the trustee or administrator does some act by which he renounces his trust character, of which the cestuis que trust have full notice, so as to put them on their remedies, and there is no disability or other impediment in the way of their enforcing their rights, in all such cases, this Court will act in obedience to the statute of limitations, and refuse relief after four years of delay wholly unaccounted for. In Spannvs. Stewart, (1 Hill Ch. Eep. 326,) the Chancellor says, “whether a husband who is also administrator, has effected a reduction, depends, I conceive, on this: Has he, by discharging or by throwing off his trust, freed himself from accountability under it for the property in question? Has he rendered the property no longer trust property ? Then he holds it in his own right. If he has openly denied his trust character, and openly asserted an adverse holding, and the Act of Limitations has barred the cestui que trust, he holds the property as his own.” Every circumstance here indicated as necessary to constitute a reduction into possession by a husband who is also administrator, -is to be found in this case. Mr. Colburn openly denied his trust character in respect to the Boston property, and the stock converted before administration, and by that conversion, rendered the property no longer trust property. He asserted publicly an adverse bolding by not including in' his inventory, the fund received from Mr. "Ward, and by declaring that he claimed as owner, and had transferred into his own name, the stocks of the Union and State Banks. And all this the present claimants knew at the time the administration was granted, and acquiesced therein for seventeen years after the said grant. But the doctrine that administrations relate back to the death of the testator, is a legal presumption in favor of creditors and distributees, and like other presumptions of this character, may be rebutted by proof. Such proof I think is furnished in this case. Although the letters of administration are in their terms general, it is manifest that the object of the application by Mr. Colburn was limited to certain specific effects of the deceased, and intended solely to effect a reduction into possession by the husband, of the choses in action of his wife. It has occurred to me, that the construction given to the Act of 1824, that an order from tbe Ordinary is necessary, to authorize a transfer or sale of bank stocks standing in the name of an intestate, may sometimes operate so as to do injustice to the true owner who, to secure his rights, is compelled to sue out letters of administration, and thus subject himself to the rule, that an administrator cannot set up an adverse title in himself against that of his intestate. But it is not necessary to consider whether this construction be correct or not. The claimants are not entitled to the benefit of this rule as applicable to the property converted by the administrator before the grant. They admitted the adverse title of their father, aided him in asserting it, and it would be most inequitable for them to claim the advantage of a rule after the death of the administrator, which they never asserted during his life. The inventory of Mr. Colburn, as administrator, contains no reference to the stock of the United States Bank,.in which the Boston fund was invested. That this had been lost in 1841, two years before the grant of administration, is evidenced by the letter of B. P. Colburn, in which he refers to the investment of his brothers’ and his own share in their mother’s estate, and their loss by said investment. Certificates of ninety-five shares in the said bank have been produced by the executor of Mr. Colburn, and they correspond in number and date with those transmitted by Mr. Ward, and are doubtless the same. Mr. Colburn might well have supposed that he was justified in excluding these from the inventory of his wife’s estate, as they had been lost, and the loss had been acquiesced in by the present claimants. They appear' to have relinquished their claim to the said shares, and to the extent of their interest therein, they were no longer the property of the estate. And so as to the stock in the banks of Charleston, sold in 1837. B. P. Colburn had assented in writing to his father’s claim, and the plaintiff had interposed no objection to the conversion by him, and he may well have regarded his title as unquestioned by them. Had Mr. Colburn been able without the authority of the law to reduce into possession, all the stock standing in the name of his wife, it is almost certain that he would have done so, and if no objection had been made by the claimants, their right would have been undoubtedly barred. He did succeed in reducing a large portion of the estate without that aid, and I think the claimants’, acquiescing in his doing so, are barred in respect to so much as was so converted, viz., the fund received from Boston, and the Union and State Bank shares — and I so find.
    It has not been seriously urged before me, that the quit' claim deed of Mr. Colburn to the plaintiff of certain lands in Massachusetts, is to be regarded as an acknowledgment of indebtedness in respect to the Boston estate. If it be true, as alleged, that Mr. Colburn had no title to the said land, it is not perceived how the assignment of all one’s right to a mere figment, can be regarded in law any more than in morals, as an adequate acknowledgment of an obligation of any kind.
    As to the bank stocks, which were the subject of the administration, there are principles which I conceive do not apply to the property previously converted, and which must be considered in determining the question of the bar of the statute in respect to the said stocks. Mr. Colburn applied for, and obtained the authority of the law to take the stock of the Planters’ and Mechanics’ Bank, and of the South Carolina Bank, as administrator of his wife. In this he admitted that they belonged to her, and consented to take as administrator, the title which the law conferred upon him as such. To enable him, therefore, to hold adversely, there were certain acts which as administrator, were necessary on his part, before the statute would begir to run in his favor. The inventory filed on the 30th October, 1844, acknowledges as then standing in the name of Mrs. Colburn, twenty-four shares in the Planters’ and Mechanics’ Bank, and six shares in the Bank of South Carolina. The accounts filed by the administrator up to 1st July, 1853, show the receipt of dividends on said stock, amounting to $1,596.92. But there is no admission in these accounts that the stocks themselves had been sold, ánd there does not appear to have been any order for their sale up to the time of the last account. The answer states that the stock in the Planters’ and Mechanics’ Bank was transferred into his own name by Mr. Colburn, in January, 1844, and was sold by him in September, 1851; but there is nothing in the accounts which sustains this allegation. On the 14th July, 1853, an affidavit was made by Mr. Colburn to the correctness of his accounts, and that the entire assets of the estate had long since vested in, and exclusively belonged to him ; and that he had assented to receive the same in his own right; and that in all respects-the assets of the estate were fully administer ed. In verification of this affidavit, he submits the certificates of the solicitor of the State Bank, and of B. P. Colburn, to the Union Bank, both given in November, 1837, and which had been obtained to effect the transfers then made of the stocks in said banks. Upon this evidence the Ordinary certifies to the following facts: That the said administrator had declared upon oath that he had received no other moneys on account of the estate of Sarah D. Colburn; that his accounts rendered contained a true statement of the actual condition of the funds therein stated; that the administrator had upon oath declared that the estate was fully settled, and that he acknowledged receipt in his own right, of all the estate mentioned in his return. To this certificate the Ordinary adds the words, “ final settlement.” It is evident that the affidavit of Mr. Colburn, upon which was based the certificate of the Ordinary, was inaccurate in several particulars. His accounts were not correct if he had sold at that time the Planters’ and Mechanics’ Bank stock, as alleged in the answer, and there was no entry in the accounts, showing that he had received the proceeds of sale from himself, or that the assets had vested in him. The certificates filed by him as verifying his statement, that the “ assets had long since vested in and exclusively belonged to him, and that he as administrator, had assented to and received the same in his own right,” do not confirm this statement. The certificates were given for a different purpose, and fifteen years before, when the stocks in the Union and State Banks were transferred. The certificate of the Ordinary settles nothing except the fact that the administrator declared that he had received no other moneys on account of the estate, and that the estate was finally closed. But it is manifest that the estate was not settled when the final account was rendered. No account had been then rendered of the sale of the Planters’ and Mechanics’ Bank stock; and on the 27th of March, 1858, a petition was filed by the administrator praying that the stock in that bank, and in the Bank of South Carolina, might be sold to complete a settlement with parties interested. And an order was thereupon made directing a sale of the shares in the Bank of South Carolina, and directing the account sales to be filed in said office. But no such account has ever been filed. Nor does anything appear in the Ordinary’s office that the Planters’ and Mechanics’ Bank stock, or Bank of South Carolina stock was ever sold. It is not sufficient that an administrator in claiming adversely to his testator, should simply declare his intention to do so. He must do some act by which the trust property is changed, and the evidence of such act must appear upon the records of the Court of Ordinary. And further, the act to effect a reduction must be such as to change the property in the choses in action, or in other words, it must be an act which divests the legal title of those claiming under the wife, and which makes that of the husband absolute. On this ground it has been held that “ where the subject of the assignment was stock, in the public funds, and the legal title was not completed by a transfer, or where it was India stock, or shares in an Insurance Company, the legal interest in which had not been transferred by the regular mode, the transaction was regarded as imperfect and incomplete.” (Note to Hill on Trustees, p. 85.) In the present case, excepting the declaration of the administrator that he had received the fund, there is nothing which shows that the Planters’ and Mechanics’ Bank stock, and the Bank of South Carolina stock, are not now standing in the name of Mrs. Colburn. There is certainly nothing in the Ordinary’s office, and there is no other evidence before me. In the language of this Court, in the case of Spann vs. Stewart, “ it is very little to require of a husband who wishes as administrator' to convert to his own use, the estate of his wife, that he should account on the estate first.” As to the capital of the stock in the Planters’ and Mechanics’ Bank, and the Bank of South Carolina, the administrator has not accounted, and, therefore, he has not ceased to be accountable. In 1858, the estate was not closed, so far as these stocks were concerned, and four years had not elapsed at the time of filing the bill. The accounts, however, show that at the. time of making his last return, the administrator had received dividends on the said shares amounting to $1,596.92. This sum he had already converted to his own use, and his declaration, in 1853, amounts to notice of the fact that he held the said dividends as his own, and that he had changed the trust character of the fund to this extent, and thereafter, he held adversely to the distributees. I am aware that this Court has recently expressed great reluctance to admit the ex parte accounts of administrators as evidence of a final settlement, so as to bar distributees; and the clearest and fullest statements on the part of the administrators, will, I suppose, be required hereafter, before the statute will be held to begin to run in their favor. In fact, I do not see why a public citation to all interested, may not be required in cases where administrators claim for their final account, the effect contended for in this case. But the rule seems to me to be clear that an account for rents and profits is limited in this Court to four years by analogy to legal limitation, and I therefore must hold that as to the dividends returned, the claimants are barred.
    I find that the plaintiff and the defendant, B. P. Colburn, are entitled to an account from the executor of the administrator, of the shares standing in the name of Mrs. Colburn in the Planters’ and Mechanics’ Bank, and in the Bank of South Carolina, with the dividends accruing thereon since July 1st, 1853, when the last account of the administrator was filed.
    
      3. The last question is, do the circumstances of the case establish such fraud against the rights of the present claimants as will avoid the bar of lapse of time in respect to so much of their claim as is affected thereby ?
    The plaintiff states that upon the death of his mother, he was led by his father to believe that the whole of her estate became vested and absolute in him. That at the time, he was living with his father; had just completed his twenty-first year; reposed implicit confidence in his word, and believed him to be deeply interested in his welfare. That during the breach of the family relations, in the indulgence of hostile feelings, he objected to the grant of letters of administration to his father, but was ignorant of the fact that such opposition might result in any substantial advantage to himself, for he still believed his father’s assertion that he was entitled to the whole estate of his mother. That some time in 1851, a reconciliation took place between himself and his father, and then and thereafter to the close of his life, his father declared that he would provide, and had by his will provided for him. That after his father’s death, and upon becoming acquainted with the contents of his will, the plaintiff was induced to make inquiries, upon the result of which he alleges that the facts upon which his rights depended as well as the nature of the property were by his father studiously withheld from him, and that it is only since his death that he was advised that he had a good claim to a distributive share in his mother’s estate, and that it is only “ within the same'time that he has discovered the fraud of which he now complains, and the facts whereby he can assert his claim, and establish the fraud.” The facts alleged by the plaintiff to have been discovered by him since the death oí his father are, that his mother was entitled to an inheritance through her mother in real estate, which was disposed of by his father, who in substitution therefor, conveyed to S. D. "Ward certain other real estate in trust for his mother, and which last estate was sold during the marriage, and the proceeds invested in securities for money, which were held for and enjoyed by her until her death.
    Benjamin P. Colburn states, that from his childhood he recollects that his mother had a separate estate in Boston, the income of which she received and enjoyed, and over which she appeared to have the exclusive control. That after his mother’s death, his father represented and claimed the said estate as his own, and from that fact the defendant understood that his father’s claim rested upon the ground that the fund in Boston was his own, though nominally the estate of his mother. His father made no positive statement that such was the case. This was the defendant’s impression derived from his father’s manner of speaking of the estate as his own. He says that he had no reason to doubt that even if he were entitled to a share, and allowed it to remain in his father’s possession, “ it would be a sacred trust, coming back to him in the course of time and nature.” That he was ignorant until after the death of his father, that the estate was derived from his mother’s landed inheritance, which had been sold by his father, and other property substituted for it, and that he would not have allowed the estate to go into his father’s possession if he had known the source whence it was derived.
    • The foregoing allegations, if fully established, would not, it seems to me, justify a charge of fraudulent misrepresentation. Upon the death of Mrs. Colburn, her husband declared that her estate belonged to him, and he continued to assert this until his own death. This was no more than the expression by Mr. Colburn, of a mere matter of opinion which, from the first, was open to the plaintiff and defendant for examination and inquiry. And although the result of this investigation may show that Mr. Colburn was not legally entitled to the property, his declaration, to the contrary, however solemnly and repeatedly made, cannot, I conceive, be relieved against in favor of parties who-bad equal means of information. It is intimated that the natural and just influence which a parent has over a child, operated in this case to induce the claimants to rely implicitly upon the opinion of their father without inquiry as to their own rights. But I have been unable to discover anything in the circumstances of this case which entitles the claimants to ask the protection of this Court against the effects of overweening confidence, or of an excessive sense of filial duty on their part. The fact that for ten years father and sons were alienated in feeling and in interest, rebuts any presumption of undue influences being exerted by the former during that period in restraining the latter from asserting their rights.
    The charge of fraudulent concealment is more distinctly made, but upon grounds which seem to me to be equally untenable. It is apparent that the only concealment of fact by Mr. Colburn of which the claimants directly complain, is as to the source whence the estate of their mother was derived. They knew that she had a separate estate, and that one of the distributees, claiming in the same right with themselves, had demanded and received his portion of the estate. This was all the information they required to assert and successfully prosecute their claim. Whether the separate estate was the inheritance of their mother, or had been created by their father for her benefit, was an immaterial fact, in no way important eitherto the knowledge or the recovery of their rights. A concealment by a parent, trustee, or administrator, to be fraudulent, must, I conceive, be of a matter of substance, of some fact important to the interests of the party to whom they sustain said relation or character. The claimants have not shown that any such fact has come to their knowledge for the first time within four years before the filing of their bill. The plaintiff alleges that his father studiously withheld from him the facts upon which his rights depended, but the evidence shows that he was, soon after his mother’s death, fully informed both as to his rights and as to the material facts upon which they depended; and even if it appeared that the information was withheld by their father, it was not a fraudulent concealment on his part, if the claimants derived their knowledge from other sources, and he was informed that they were acquainted with the facts. There can be no concealment in respect to facts already known. And no duty can arise to communicate information which is already possessed. But have the Colburns, who are now claiming, established the fact, which they say they have discovered, that the separate estate of their mother in Boston, was derived from her inheritance ? The personal representative of their father denies in his answer that such was the fact, and claims proof of the allegation. The former part of this report shows that the origin of the separate estate of Mrs. Colburn is still involved in uncertainty. And although the conclusion is reached, that the inheritance of Mrs. Colburn was in some way the consideration for the property she enjoyed up to the close of her life, the circumstances on which this conclusion rests, are such as give support to the declarations made by Mr. Colburn, and relied upon by the claimants up to the time of his death, that the property which Mrs. Colburn enjoyed, was originally her husband’s, and was by him devoted to her separate use and maintenance. If this be so, then there has been no new discovery of facts favorable to the claimants, and consequently nothing upon which a fraudulent concealment by Mr. Colburn can be predicated.
    It has been argued that the fact that the plaintiff and the defendant, Colburns, did not prosecute their claim to a share of their mother’s estate, during the ten years of their estrangement from their father, is strongly corroborative of their not being informed of their rights. There is force in this argument. But their ignorance was not of facts upon which their rights depended, but of the law. The presumption is, that every person is acquainted with his own rights, provided he has had reasonable opportunity to know them; and nothing can be more liable to abuse, than to permit persons in circumstances like the claimants, to excuse their laches upon the pretence that, for twenty-three years, they were ignorant of their rights. It is rarely that a mistake in point of law, with full knowledge of all the facts, can afford ground for relief, or be considered as a sufficient indemnity against the consequences of every deception. And if persons, as in this case, are- not merely silent and passive, but give explicit confirmation to the right of the party in possession, the Case is much stronger, and equity and policy equally dictate that they be not allowed to set up their ignorance of the law as an excuse for their laches. The claimants could have easily dispelled that ignorance, for they had the fact of the recognition of the claim of their brother before their eyes, and this as evidence in their favor, was equivalent to a recognition of their own.
    But I think the claimants have, in their own statements, afforded ground for the belief that they had prudential reasons for not making the demand in the lifetime of their father, even if their rights were clear to their own minds. After the reconciliation in 1851, they evidently reposed in the expectation of benefit from their father’s testamentary-dispositions at his death. It was not until they had ascertained the contents of his will, and discovered their exclusion from all benefit under it, that they awoke to their rights, and were prompted to their assertion. The conclusion would seem to be this: that they were willing to let their father suppose the demand was not to be made upon bim, and in that way to conciliate his favor. It is no favor to the deceased to postpone the demand during his life, and to make it afterwards against his estate. If he died in the persuasion that this demand-was never tobe made upon him, it is not made under the most favorable circumstances after his death, when attempted to be sustained by a charge of fraud.
    The complainant, J. H. Colburn, and the defendant, B. P. Colburn, excepted to’the report, upon the following grounds:
    1. Because the Master erred in reporting that the statute of limitations barred the claims of the claimants to an account from the commencement.
    2. Because this is a continuing trust, and was not executed even at the time the bill was filed; and the cestuis que trust were not bound to apply upon any part of the transaction, the whole trust not being concluded.
    3. Because the administration committed to J. Smith Colburn was a direct, technical trust, under which it was his duty to communicate to the distributees, truthfully and fully, all the information he possessed concerning the estate and their rights; and that, failing to communicate such information, or concealing it, or misrepresenting the rights of the distributees, or denying those rights while withholding information, neither the statute of limitations nor the lapse of time can avail J. Smith Colburn as a defence to the claim for an account from the commencement of the trust.
    4. Because from the date of the administrator’s last account to filing this bill, being little more than six years, and from the date of the last petition before the Ordinary, being little more than one year, is insufficient to establish the defence of the statute of limitations, or lapse of time, or laches, or staleness, or antiquated claim.
    5. Because the Master erred in' holding that the conversion of the Boston stock by Mr. Colburn, and his neglect to include it in his inventory, were such acts as gave currency to the statute of limitations; whereas, it is submitted that there is no evidence that the claimants ever knew of the conversion of this stock by their father; and if they acquiesced in his omission to insert this fund in his inventory filed with the Ordinary, they did so under the erroneous belief that the fund received from Mr. Ward had been “invested” by J. Smith Colburn for the benefit of the estate of his wife, and had therefo're been lost by the failure of that institution; and it is submitted that acquiescence, under these circumstances, cannot prejudice the rights of the claimants.
    6. Because the Master erred in holding that these claimants are barred as to the dividends received from the Charleston banks, in analogy to the rule in the case of rents and profits; whereas, it is submitted that the rule is inapplicable to the case of a technical trustee; and, that the trustee, having called in the trust fund standing in a proper security for no purpose connected with the trust, and therefore in dereliction of his duty, will be required, at the option of the cestui que trusts, either to replace the specific stock with intermediate dividends, or to account» for the proceeds of sale with interest.
    7. In addition to the above grounds, it will be urged, in behalf of J. II. Colburn, that the quit claim deed of J. S. Colburn to the Concord farm was an acknowledgment by the testator of a subsisting indebtedness, and saves the claim of the plaintiff from the operation of the statute of limitations.
    
      The defendant, Parker J. Holland, executor of James S. Colburn, deceased, excepted to the report of Master Tupper, in the above cause:
    1. Because the Master has erred in deciding that Mrs. Sarah D. Colburn was entitled to a separate estate from her husband, either as to the property situated in Boston, Massachusetts, or in Charleston, South Carolina.
    2. Because the Master has erred in holding that the defendant, Benjamin P. Colburn, and the plaintiff, are entitled to distributive shares in stock of the Planters' and Mechanics’ Bank, and the Bank of South Carolina, with the dividends accruing thereon since July 1st, Anno Domini 1853.
    The decree of his Honor, the Chancellor, is as follows:
    Lesesne, Ch. The hearing of this cause was commenced on the 12th of March. It occupied four days, and was argued by one of the counsel on each side with remarkable ability; only one day of the term then remained, and an early time was appointed for proceeding with the same. That was prevented by the sickness of one of the counsel, and circumstances have ever since- rendered it impracticable. The wish has now been expressed, that a decree be made without further argument, with which I proceed to comply.
    The cause came up on the Master’s Beport and exceptions thereto by both parties. It is one of much complexity, involving nice and difficult questions, and if I undertook to discuss them, the delay would probably defeat the object of the parties in the wish they have expressed. It is moreover unnecessary; for the points are stated with clearness, and considered and decided with great learning and mature thought in Mr. Tupper’s admirable report.
    It is ordered and decreed that the exceptions be overruled, and the Master’s report be confirmed, and made the decree of the Court.
    The exceptants appealed on the grounds taken in the exceptions to the report.
    
      Whaley, Lord, for plaintiff.
    Campbell, for B. P. Colburn.
    
      Whaley & Rutledge, for Holland.
   The opinion of the Court was delivered by

Dunkin, 0. J.

The plaintiff, John Henry Colburn, is the youngest of three sons of James Smith Colburn and Sarah Dunn, his wife, formerly Sarah Dunn Prince. . His parents were natives of Massachusetts — probably of Boston, or the vicinity, and were married in 1808. The plaintiff was born in March, 1816, and resided with his mother in Boston until her death, in 1836. Soon after this event he came to reside with his father in Charleston, until 1841; when some differences arose, and they separated. They continued to reside in the same city until the death of James S. Colburn, which occurred on the 16th July, 1859.

These proceedings were instituted 7th December, 1859, against the principal defendant, who is the executor of the last will and testament of James S. Colburn, dec’d. The object is to obtain an account of certain personal property, alleged to have been the separate estate of the plaintiff’s mother, and which had been received by his father, the late James S. Colburn.

The defendant, disavowing all personal knowledge of the matter charged in the bill, submits that, if Mrs. Sarah Dunn Colburn had any separate estate at the time of her decease in 1836, it vested absolutely and exclusively in her surviving husband. Such is admitted to be the law of Massachusetts. The inquiry is then presented whether Mrs. Colburn, at the time of her decease, was domiciled in that commonwealth or in the State of Sonth Carolina. ' The question of domicile,” says an eminent publicist, “ is often one of great difficulty and nicety, and so dependent upon circumstances, that, as it has been observed by Lord Stowell, (2 Eob. 322,) it is hardly capable of being defined by any general or preci-e rule. It is compounded partly of matter of fact and partly of law.” When such minds as those of Lord Stowell and Chief Justice Marshall differ widely as to the inference of domicile, from the same circumstances, (see 8 Cranch, 248,) the difficulty of establishing any positive rule may well be considered. The place of birth is ordinarily considered as the domicile. Not always —the party may be a minor, and his parents on a visit. Whether a guardian can change the domicile of his ward, according to his volition, .is not settled, (9 Mass. Eep. 543.) In all cases, it is important, (as urged by Ch. J. Marshall, in the case cited,) to examine into the reason of the 'rule. The general principle is that stated by Mr. Justice Story, (Story Conf. Laws, § 46.) “ The domicile of a married woman follows that of her husband. This results from the general principle, that a person who is under the power and authority of another, posesses no right to choose á domicile.” Thew ill of the wife is subordinate to that of the husband. As a general rule, she has no right to choose a domicile different from his, or in opposition to bis will. His domicile is her domicile. But circumstances may qualify this principle. In the case cited at the bar, Irby vs. Wilson, (1 Dev. & Bat. Ch. R. 568,) it was ruled by the Supreme Coart of North Carolina "that a feme covert may acquire a domicile different from that of her husband, especially as to a suit between, her and her husband;” and in our own case of Bradley vs. Lowry, (Speers Eq. 1,) where the testatator left his established domicile in South Carolina, in 1836, and went to Alabama, where he died in the spring of 1837, a majority of the Court of Appeals inferred that the testator had abandoned his domicile in South Carolina, and acquired a new domicile in Alabama, principally upon the evidence “that he had disagreed with his wife — that they had separated — that she had gone to live in the family of her son-in-law, and that he declared they could no longer live together; that he broke up bis establishment, took his slaves with him, declaring he was going to the West to live, and that he would never return to this country.” The conclusion of the Court was, of course, just, to wit: that the husband was domiciled in Alabama. It was not equally clear that the deserted wife had also changed her domicile, and acquired a new residence in Alabama. The reason of the rule was wholly inapplicable. The wife had no choice but to remain where she was — and such was the will of her husband. Identity of domicile in husband and wife results from the principle that she is under his power and authority, and has no right to choose a domicile. The principle is salutary, and the reason cogent. But, as has been illustrated, the principle is. not an axiom, nor is the rule inflexible.

From their marriage certainly — probably from their nativity — the parents of the plaintiff resided in Boston, in which city James S. Colburn transacted business as a merchant. About the year 1818, he was unfortunate, and failed. In the autumn of that year, he, with his wife, came to Charleston, where they passed the winter, returning to Boston in the spring of 1819. Leaving Mrs. Colburn with her three children in Boston, James S. Colburn, in the summer of 1819, returned to Charleston. They never met afterwards. Mrs. Colburn continued to reside in Boston, engaged in the education of her sons, the youngest of whom was then about three years of age. She there remained (says her son B. P. Colburn) until some time in the year 1836, the time of her death. • The witness, Edward Winslow, also a native of Boston, but residing in Charleston, knew the family intimately. Witness “lived as many as eighteen, years with Mr. Colburn in Charleston, at the same boarding-house. Witness was charged with messages to Mrs. Colburn from her husband, whenever he knew witness went North.” “ Witness visited Mrs. Colburn whenever he went to Boston. Mrs. Colburn lived in a fine dwelling-house in Boston, indicating an income of about $3,000. She lived in much comfort. Yisited her at Jamaica Plain, a place of resort near Boston, well situated, and suited for the residence of a person in comfortable circumstances.”

In determining a question of domicile, the intention of a party has great weight. But intention can only be judicially ascertained from acts, or conduct, and declarations. The mere surmises of friends or connections afford no evidence of intention. Some of the letters of Mrs. Colburn to her husband, as of late date as February and May, 1835, were put in evidence, They are full and confidential, but, in no part of them, is any allusion made to a removal of her domicile, as either expected or desired, on the part of herself, or of her correspondent. The lady had her griefs, and she did not fail to disclose them. But this subject formed no part of the catalogue. Nor is there anything whatever in the correspondence, or in any other part of the evidence, which would countenance a surmise that this arrangement was otherwise than entirely satisfactory to her husband — that it was not, in fact, his own arrangement, and acquiesced in as such.

As Mrs. Colburn was born and bad always lived, so she died, a resident of Boston. If she acquired a domicile in South Carolinia it was not in deference to tbe will of her husband, but manifestly against his wishes, and in opposition to his settled convictions.

It is worthy of inquiry at what time James Smith Colburn himself became domiciled in South Carolina. On this subject, the judgment of Sir John Nicboll, in tbe Prerogation Court of Canterbury, (Curling vs. Shomlen, 2 Adams, 6,) has valuable suggestions. These cases,” (says he,) “ go fully to demonstrate one thing, namely, that the, forum erigirás is hardly shifted — that it continues at least-till it is completely abandoned, and another taken,” and again, “mere averments of intention, not deducible from the facts pleaded, are of no avail whatever in the cause ”

Mr. Colburn, having failed in business in Boston, came with his wife to Charleston, in the fall of 1818. Returning with her to Boston in the following spring, he made arrangements for the comfortable support of herself and family and came back to Charleston in 1819. The evidence of his intimate friend and fellow lodger, Edward Winslow, affords the only information as to his mode of life for several subsequent years. They were boarders at Jones’ hotel. “Mr. Colburn,” (says the witness,) “left Boston without satisfying his creditors. Is of the impression that Mr. Colburn stated to witness that he was willing to pay his creditors twenty cents on the dollar. Thinks whatever settlement he did make was made on that basis. Is satisfied that he did not reacquire his credit in Boston. Witness and Mr. Colburn lived as many as eighteen years in the boarding-house in Charleston.” Among the general principles to assist the Courts in determining questions of domicile, Mr. Justice Story enumerates the following: “Ninthly, the place where the family of a married man resides is generally considered as his domicile. But this may be controlled by circumstances. Eor if the place is only a temporary establishment for his family, or for transient objects, it will be otherwise. Tenthly, if a married man has his family fixed in one place and does his business in another, the former is considered the place of his domicile.” Story Conf. L. § 46.

Who can undertake to say that, so late as the year 1836, the domicile of James S. Colburn was not determined by these principles? that, at any earlier period, he had (in the language of Sir John Nicholl) “ completely abandoned the forum originis,” — the home of his childhood and of his riper years — the unchanged residence of his wife and children— the place of his father’s sepulture ? Or, that during those years, when be was endeavoring, in his own way, to make terms with his Boston creditors, he did not always look to a return to his family and home, and that he was any other than a lodger and sojourner in the city of Charleston ? In that year (1836) great changes took place. His wife had ceased to live. His two sons were with him in Charleston. He had failed to re-establish his credit with the merchants of Boston. In his new abode he bad found men, who (in the grateful language of his will) “proved themselves friends in prosperity and adversity,” and he was content to pass with them the remainder of his days — to make South Carolina his permanent domicile. An eminent writer, already cited, says: “Sometimes, where there has been-a removal for temporary purposes at first, there may be engrafted on it, subsequently, an intention of permanent residence, and, in many instances, therefore, where we are called upon to decide upon questions of domicile, the length of time of the residence becomes a material ingredient.” All these considerations fix beyond doubt the domicile of James S. Colburn, after the year 1836.

In any view that may be taken, the Court would experience great difficulty in recognizing the position indispensable to the plaintiff’s success, to wit: that at the period of his mother’s decease she was domiciled in South Carolina.

But the judgment of the Court is based on other and independent considerations. Whatever rights the plaintiff had on 7th Dec. 1859, when his bill was preferred, he enjoyed equally in March, 1837, when he attained his majority. Riddlehoover vs. Kinard, (1 Hill, Ch. 376,) decided nearly forty years since, has become one of the landmarks of the law. It is commended to approval, as well from the authority of the distinguished jurist, who was the organ of the Court, as from the cases cited, and the wisdom and policy of the principles announced. Uriah Wicker died in 1808, leaving a widow and some collateral relations. His widow proved, in common form, an instrument supposed to be his will, by which his entire personalty was bequeathed to her, and she took out letters of administration with the will annexed. She, and those claiming under her, held the property for more than twenty years. After the death of the widow, and at the instance of the collateral relations, the will was required to be proved in solmen form, and was ultimately set aside, and proceedings instituted by the plaintiffs for a distributive share of the estate. “If” (says Chancellor Harper) “ there had been no will, and no administration, and defendants, without color of title, had taken possession of the property, and kept it for so long a time, I suppose their title would be good, under the decisions in Reed vs. Price, (State Report, 1,) and Hutchison vs. Noland, (1 Hill, 222); administration would have been presumed, and that defendants had acquired a title from the administrator. The lapse of twenty years is sufficient to raise the presumption of a grant from the State, of the satisfaction of a bond, mortgage or judgment, of the grant of a franchise or the payment of a legacy, or almost anything else that is necessary to quiet the title of property. After twenty years a bill of review will not lie. This is the general equitable bar.” Again, “ it is hardly necessary to say that legal presumptions are not founded on actual belief. As observed by Lord Erskine, in Hillary vs. Waller, (12 Ves. 267,) mankind, from the infirmity and necessity of their situation, must, for the preservation of their property and rights, have recourse to some general principle, to take the place of individual and specific belief. Presumptions must be sometimes made against the well-known truth of the fact. If twenty years have elapsed without payment of interest, or any acknowledgment of the bond, we must presume it paid, notwithstanding the fullest conviction that it never has been paid. In Hutchison vs. Noland, it was proved by the ordinary that no administration had ever been taken out till granted to the plaintiff. As said in that case, we will presume whatever is necessary to give efficacy to long possession. If it were necessary (adds the Chancellor) to make any specific presumption in this case, I would presume, that the parties of full age at the time of the probate, released to Catharine Wicker their interest in the estate, or their right to contest the will.” Adverting to the relative situation of the testator., and his two sons, (the plaintiff' and B. P. Colburn,) in 1837, the application of these principles seems immediate and irresistible — other remarks are not less pertinent. “ If defendants would have been protected, if there had been no administration or probate, what makes the case worse for them, under present circumstances ? Is it that instead of being trespassers, committing a known wrong, they took possession under an apparently good title, for aught that appears honafide, believing the property to be their own? Their possession was still adverse — they claimed for themselves — this was known to all the world, and must be presumed to have been known to the complainants.”

Such presumptions are not permitted to screen fraud, or work injustice to the ignorant. But fraud is not to be presumed —especially against the dead — nor ignorance inferred where there is “ light and liberty.” To these objections it is difficult to add anything to the satisfactory answers embodied in the Master’s report, which has been adopted as the decree of the Chancellor. As to the Boston property, so called, both the plaintiff and his brother knew as much in 1837 as they ever knew afterwards. The plaintiff actually preferred his claim after the death of his mother, and while the fund was still in the hands of Mr Ward. That claim was not pursued. Whatever may have been the motive, it seems a misapplication of terms to ascribe bis acquiescence to ignorance of his rights, with all the means of information before him, or to any fraud practised on his credulity. Much more natural is it to ascribe the subsequent silence and acquiescence, both of his brother and himself, (as the Chancellor has done,) to their filial deference, or prudential reasons for not making the demand in the lifetime of their father.”

But in reference to this “fund,” it may not be uninstructive to inquire how far the laots, imperfectly developed as they are, after this great lapse of time, and death of the parties interested in and cognizant of the transactions, are in accordance with the legal- presumptions. To afford any groundwork for the plaintiff’s claim, it is indispensably necessary to establish not only an interest of Mrs. Colburn in the Boston fund, but such absolute interest as was transmissible to her representatives. E. A. Colburn testifies, (and all the evidence confirms his statement,) that “ when his father left Boston, he was deeply indebted and bankrupt; and had he left any property, or owned any there at that time, it would have been taken by his creditors to pay his debts.” Finding himself in this situation, and being about to leave Boston for an indeterminate period, and also leave there his family, consisting of a wife and three sons, (the eldest about ten years of age,) he, in the summer of 1819, executed an absolute conveyance to Samuel D. Ward, Esq., a lawyer of Boston, of “a certain dwelling-house and appurtenances, situated in Beacon street, Boston.” Immediately after executing this conveyance, James S. Colburn started for Charleston, and never afterwards returned to Boston. At a subsequent period, these premises were sold and conveyed by S. D. Ward to .Augustus Thorndike, for the consideration of twenty thousand dollars.

It is not remarkable that, at this distance of time, the details of this arrangement are involved in obscurity. It was not intended to be otherwise. The prominent objects of the parties are too patent to be misapprehended then or now. To three persons, and three persons only, all was fully known and they never misunderstood each other. The only survivor of these, (Mr. Ward,) neither party has thought proper to interrogate. But Mrs. Colburn was thoroughly acquainted with every feature of a transaction, in which no one was so deeply interested as herself. She knew of the deed to Mr. Ward, and was familiarly acquainted with the terms on which he had received it. While the Beacon street property was yet unsold, sbe received the rents and. profits; and, when converted into other securities, the interest and dividends were enjoyed by her. So late as February, 1835, she thus writes to her husband, in relation to his suggestion of taking an interest in stock of the Bank of Charleston, to stand in the name of Mr. W. and her son, B. P. Colburn : “It may be excellent property, but I do not think it would be as safe as it now is. I should not like to do it. If I did, I should never expect to see either principal or interest. But if you cboose it must be done, I must consent. You always told me to take care of myself, and I think it will be much more safe witb me than in Charleston.” “ I should bave sent you an exact memorandum bow my property is placed, but Mr. Ward is out of town. I hold all the papers, &c.” “I wish you would give me some paper,.so I could hold all the furniture; I requested Benjamin to mention it to you.” Again, in her letter of 16th May, 1835, adverting to his urgency about the Bank of Charleston stock: "You still wish me to purchase some shares in the new bank, but I would rather not. I think it would not be as safe as it is now. If you were in want of'money, I would let jmu have it. I know you have got more than I have, and I think the little I have I had better take care of it myself. It will be better for both of us for me to keep what I have got under my own control. At any rate, I could not do it now without I sold bank stock, as the other money is loaned for one year from this time. Mr. Ward has no money of mine, and I have not any. I know there will be a time that you will thank me for wishing to keep the money myself. I shall never touch one cent of the principal without your advice. I shall keep it in such a way that no one can get it, let what might occur, but you. If I should die to-morrow, the children could not get one cent of it; it would belong to you.” Mrs. Colburn died in the following year.

Mr. Ward (a lawyer of position) was aware of the nature of the trust which he had assumed, and of the responsibilities which he had incurred. Within a few months after the death of Mrs. Colburn, he accounted for, and paid over to James S. Colburn the entire fund which he had received for the Beacon street property intrusted to him in 1819. The only remaining party was James S. Colburn himself, and he has not left to inference his entire satisfaction with the manner in which Mr. Ward had conducted, and had finally discharged the duties confided to him by the original arrangement. The declarations, and the conduct of every person cognizant of the transaction, unite in the conclusion that, when the family were dispersed, and Mrs. Colburn was no longer alive, the purposes of Mr. Ward’s stewardship were accomplished, and the trust was at an end. And such, too, is the presumption arising from long acquiescence.

But it is said there was also separate property in Charleston. Certainly, it appears from the Master’s report, that, at the time of Mrs. Colburn’s death,-there were standing in the name of “ Mrs. Sarah Dunn Colburn,” certain stocks, to wit: 24 shares in the Planters’ and Mechanics’ Bank, 6 shares in Bank of South Carolina, 9 shares in the Union Bank, and 3 shares in State Bank, valued, in the aggregate, at §1,645. The Master says, “The origin of these investments is involved in even more obscurity than that of the property in Boston. The pleadings give no information as to when or by whom the investments were made, nor to whom the dividends were paid, and the testimony is entirely silent upon the subject.” “Mr. Colburn” (as one of the witnesses said) “ kept his pecuniary matters to himself.” But, so late as 1835, his wife had written to him from Boston, for “ some paper from him by which she could hold all the furniture.” It is vain to conjecture as to the history of this stock. It is known only that, from the death of his wife, James S. Colburn claimed all as his own. In 1837, he applied to the Union and State Banks for a transfer of the shares into his individual name. His son, Benjamin P. Colburn, on that occasion, signed the following certificate:

“ I certify that there was no marriage settlement, either before or after marriage, between my father, James Smith Colburn, and my mother, Sarah Dunn Colburn, and that there is no claim on the part of myself or any other member of the family to prevent his marital rights attaching on certain shares in the Union Bank, standing in the name of my said mother, (now deceased,) which shares can be transferred to my father in his own name.

“ (Signed) B. P. -Colburn.

Charleston, November HkA, 1837.”

William Lance, Esq., Solicitor of the bank, thereupon certified.

“ Mr. Colburn can have the shares transferred into his own name, he being legally, as husband, entitled to them.

“(Signed) Wm. Lance,

“ Solicitor.”

The shares were accordingly transferred.

In his bill the plaintiff adverts to this fact, and states that “the said James Smith Colburn did possess himself of certain bank stock and other property of the said Sarah Dunn without administering upon the estate;” but that two of the banks refusing to pay him the dividends unless he administered, he, the said J. S. Colburn, in 1843 or 1844, applied to the Ordinary for letters of administration; that the plaintiff opposed the application of his said father, “ he, J. S. Colburn, still insisting that he was entitled to the whole estate of tbe plaintiff’s mother.” The petition of J. S. Colburn, filed late in 1843, sets forth the reasons of the application, and that the petitioner was desirous of having the shares and dividends transferred to him. The petition for letters was granted, notwithstanding the plaintiff’s opposition.

■ It is nowhere averred or suggested — the contrary is manifest from what has been said — that the plaintiff was ignorant of the transfer in 1837, and of his father’s persistent claim to the entire fund. The Master remarks, “ Mr. Colburn’s subsequent acts as administrator, show that his sole object in taking out administration was to aid him in converting the stock to his own use as husband of the deceased.” The concluding summary of the Master is entitled to consideration: “As to the Charleston bank stock, the plaintiff knew in 1843, when he opposed the application of his father for administration, that a portion of the shares had already been converted by him to his own use, and that tbe sole object of tbe application was to enable him to convert the rest. All this was stated in the petition for administration, which the plaintiff was opposing, &c.” “ As to Benjamin P. Colburn, tbe evidence of notice is, if possible, still more clear.” .“It seems to me incontrovertible,” (concludes the Master,) “ that the present claimants have, for twenty years slept upon their rights, and permitted the claim of tbe father to the entire estate to be asserted without protest or interference on their part, and his enjoyment of the property under said claim to continue undisputed up to the time of his death.”

Nor, in the judgment of this Court, is the defendant’s plea of the statute of limitations a less formidable difficulty in the way of the plaintiff’s success. In Moore vs. Porcher, (Bail. Eq. 197,) Chancellor Harper says, “ I am of opinion, from the reason and 'analogy of the law, that when a trustee does an act, which purports to be a final execution of his trust, the statute will begin to run from that time so as to bar an account.” Again, “ The possession of a trustee is not adverse; it is the possession of the cesiui que trust, and the statute does not apply; but when he does an act purporting to be an execution of the trust, he shakes off the character of trustee, and thenceforward stands in an adverse relation. If the cesiui que trust supposes that the trust has not been fully and faithfully performed, he is put upon the assertion of his right.” In Long vs. Cason, (4 Rich. Eq. 60,) Chancellor Wardlaw announced the judgment. “Technical trusts, as to claims between trustees and beneficiaries, are not within the statute of limitations. But, to use the language of our last reported case on this subject, (Brockington vs. Camlin, 4 Strob. Eq. 196,) ‘if the trustee does an act which purports to be a termination of the trust; if he has a settlement which is intended to be in full; if he settles as to part and claims the residue in his own right; if be denies the trust in the presence of the cestui que trust; these acts, or any of them, will so far disturb and dissolve the strictly fiduciary relations between the trustee and his cestui que trust, ns that the statute of limitations will commence to run' from the date of such acts.’ This doctrine” (adds Chancellor Wardlaw) “is fully supported by authority.”

In 1843, the plaintiff knew that J. S. Colburn claimed the bank stock in his own right 'and for no one else. Knowing this, he opposed the grant of administration. When the letters were granted, James S. Colburn, on 30th October, 1844, filed an inventory still claiming the shares as his own property, and filed an account, aud again in 1847. The last return made was 14th July, 1853, which was accompanied by an affidavit of the administrator that the entire assets of the said estate had long since vested in and exclusively belonged to him, and that he, as administrator, had assented to and received the same in his own right, and that the accompanying certificates (referring to the certificates of William Lance, Solicitor, and B. P. Col-burn, already cited) will further confirm the above statement; and that, in all other respects, the assets of said estate were fully administered and settled, and prays the same may be so declared. Whereupon the Ordinary, on the same day, made the following entry: “ I do hereby certify that I have this day examined the foregoing account; that James Smith Colburn, administrator, upon his oath declared that he had received no other moneys on account of the estate of Sarah D. Colburn, deceased; and as appears by annexed affidavit and certificate, that annexed account is a true statement of the actual condition of funds therein stated, and that the same be declared to be fully administered and settled, and that he acknowledges the receipt, in his own right, of all the estate mentioned in the return.

“ Final settlement.

“ (Signed) George Buist, O. O. D.”

In 1843, then, when J. S. Colburn assumed his official character, he denied that he held for the plaintiff. In the language of the authority, he “ denied the trust in the presence of the cestui qué trust.''1 Thenceforward he was put on the inquiry. As is said in 1 Hill Ch. 300, “the Ordinary’s office was open to him.” But much more in July, 1853. After the plaintiff had been advised of the adverse holding and put on the inquiry, when the final settlement was made with the Ordinary, the administrator “ shook off the character.of trustee, and, thenceforward, stood in an adverse relation. If the cestui que trust supposed the trust had not been fully and faithfully executed, he was put upon the assertion of his right.” (Bail. Eq. 198.) Certainly, from this date the currency of the statute commenced, and in four years the plaintiff was barred. Nor is this result in any manner affected by the petition filed in March, 1858, in which the petitioner sets forth that “ he was sole heir and distributee of the estate,” but prays for an order for the sale of some of the stock, as he was advised such order was necessary. The right was barred by the statute before the petition was filed. But the proceeding was purely formal, and obviously for the sole purpose of meeting the difficulty arising out of the construction given to the Act of 1824.

Having arrived at the conclusion that the plaintiff’s claim cannot he sustained without a violation of established principles of this Court, the remaining duty of the Court is to dismiss the bill. But it is manifest from the history of the transaction that, whatever may have been the errors of the plaintiff in his intercourse with his father, he was “much more sinned against than sinning.” The mysterious character of his father’s transactions, and the solemn mockery with which (as it appears) he, in his last moments, trifled with the natural expectations of his son, were well calculated to awaken suspicion and to provoke inquiry.

It is ordered and adjudged that the bill be dismissed, each party to pay his own costs.

Wardlaw, A. J., and Glover, J., concurred.

Bill dismissed.  