
    Veazie v. McGugin.
    A testator, domiciled in Mississippi, devised liis entire estate to C., his heirs and assigns, with full power to dispose of the same and apply the proceeds upon specified trusts. By subsequent clauses he named C. co-executor with two others, limiting the power to sell and convey to C. alone; and provided that if C. should die or should “refuse to take upon himself the execution of the will,” O.’s power should pass to W. O. accepted the trust, was qualified as executor and took upon himself the execution of the will. Afterwards he executed a resignation, both as trustee and as executor, and on an ex parte application, an orphans’ court in Mississippi made an order accepting it, and appointed W. his successor. No law of that state gave power to any court, upon such an application, to divest a trustee, holding title, of his powers or estate. Soon after C. (who did not convey to W.) resumed action as trustee; for value conveyed part of the Ohio land to a bona JUle purchaser; received the purchase money, and placed it in the hands of the chief executor, who duly applied and accounted for it. W. never acted or claimed to act as to the land.
    
      Held : 1. The resignation was not such a “ refusal to take upon himself the execution of the will ” as transferred title to W.
    
    2. The action of the orphans’ court did not affect C.’s powers as trustee, and his deed was valid.
    8. The “ open,; continuous, adverse, uninterrupted and peaceable possession” for more than twenty-one years, of a part of the lands devised to O. as aforesaid, by one (and his grantors) who all the time claimed to own the same, is a good defense to an action for the recovery of the land so held, whether the plaintiff be the trustee or his beneficiary.
    Eeeob to tbe District Court of Knox County.
    
      In A. D. 1828, a tract of land containing 2400 acres stood upon the tax duplicate in Knox county, Ohio, in the name of Isaac Guión. Taxes thereon for the years from 1815 to 1823, both included, were unpaid. At the November term, 1823, of the court of common pleas for the county, the county auditor appeared, and upon his motion judgment was duly rendered, in the name of the state, against Guión for $755 taxes, interest and penalty, and for costs; and the court ordered a sale of all of said tract, or of so much thereof as would satisfy the judgment, pursuant to statutes then in force. Sale of the whole was made on July 5th, 1824, to Elijah Smith. The court confirmed it, and on February 28th, 1827, the auditor’s deed conveying the land to Smith was delivered. On December 21st, 1824, Isaac Guión, by deed, conveyed to said Elijah Smith one thousand acres of the same tract. No convejumce by Smith to Guio.n of the other 1400 acres has been discovered; but on June 27th, 1831, John, George and Walter Guión, heirs of said Isaac Guión, by deed of that date conveyed to John W. Warden the said 1400 acres. Warden, in 1837, conveyed about 132 acres of said tract to John Hawn. The defendant, William Hawn, was in possession of this tract when the action against him was begun, and it is admitted that he, “ and those under whom he claimed title, have been in continuous and uninterrupted and peaceable possession of the lands described in the petition ag'ainst him since July, 1832, claiming to own the same.”
    Elijah Smith died testate in Adams county, Mississippi, on February 23, 1828. He left surviving him, his widow, Mary, who died May 10, 1863, and children whose names and dates of birth and death are as follows:
    
      
    
    
      His will reads as follows (the italics are ours):
    “In’the name of God, Amen: I, Elijah Smith of the county of Adams, in the state of Mississippi, planter, being in good health of body, and of sound and disposing mind and memory, blessed be God therefor, do make and ordain this my last will and testament, in the manner following, that is to say:
    “Imprimis: — Give and bequeath all my estate, real, personal and mixed, of whatever kind soever, and wheresoever situate, unto my son, Charles Percy Smith, his heirs, executors, administrators and assigns, to have and to hold all my estate, real, personal and mixed, unto him, the said Charles Percy Smith, his heirs, executors, administrators and assigns; in trust, however, for the express uses, intents and .purposes following, expressed in this my last will and testament, and no other, to wit: In trust, that said estate shall be kept together, or disposed of under the sole care and management, improvement and direction of my said son, for the purposes with the proceeds thereof to pay my just debts, support and educate my children; and also upon the further trust that when our children shall respectively and severally arrive at the age of twenty-one years, or in the option of my said trustee, sanctioned by my wife, sooner require a separate establishment, he shall allot to them such part of my estate, at his discretion, with the consent of my wife, as can be spared consistently with the actual condition of the same, keeping in view any debts that may be due, the education and maintenance of our younger children, and an ample support for my wife during her natural life, taking care to charge each one a fair valuation for whatever he or she may receive, and holding them accountable to the younger children, in the event of the residue of the estate not holding out, to give each the same amount by a contribution from the part or parts so allotted.
    “ Secondly: — I hereby nominate, constitute and appoint my beloved wife, Mary, before named, executrix, of this my last will and testament, and guardian of our minor children; I do also nominate, constitute and appoint my sons Charles Percy Smith and William Sidney Smith, executors in aid of my executrix, jointly or severally, as’occasion may require, hoping and trusting that they and all our children will always conduct themselves in a dutiful and affectionate manner towards the best of mothers, and brotherly love to each other.
    “ Thirdly: — It is my express desire and direction that neither my wife, Mary, executrix, as aforesaid, nor my son Charles Percy Smith, executor and trustee as aforesaid, nor William Sidney Smith, executor as aforesaid, shall be required to give any security, by the probate or other courts, for the faithful execution of this my last will and testament, except required thereto by my creditors having right so to do, nor shall the interposition of any court whatever be necessary to authorize the sale of any, or disposal of any part of my estate, real and personal, it being my intention to vest full and complete power in my said son, Charles Percy Smith, as trustee and executor as aforesaid, to sell or dispose of all or any part of my estate during his continuance as trustee and executor, for such sums as in his discretion may seem proper, and for that purpose to sign, seal and deliver all such conveyance or assurance in the law as may be necessary or proper, having always due regard and respect to the friendly counsel and advice of my much esteemed friend, David Hunt, in all important cases where he can be consulted; and it is my will and desire that in case of the death of my said trustee, or refusal to take upon himself the execution of this my will, that my son William Sidney Smith, be vested with the same power and authority as is heretofore given to my said son, Charles Percy Smith; and it is my will and desire that my said executors and trustees, on entering into the execution of this my will, and as soon after raj' decease as convenient, cause to be made a full and perfect inventory and appraisement of all my estate, both real and personal, and place the same on record in the probate court,
    “ fourthly: — I give and bequeath unto my beloved wife, Mary, in lieu of her dower, (in case she thinks to accept the same,) the occupancy and possession of my mansion house and plantation on which I now reside, during her natural life, together with all the furniture therein, the farming utensils thereon, and such servants as she may find necessary to conduct the same to advantage, not exceeding six in number.
    “ Fifthly: — I give and bequeath to my said wife, Mary, absolutely, and in addition to her dower as aforesaid, and whether she accepts the same or not, — a negro woman, slave, named Judy, together with all her children and their increase, to be disposed of as my said wife may think proper, and not to be considered as forming a part of my estate.
    “ Sixthly: — It is my will and desire that my son Charles, trustee as aforesaid, shall receive out of the proceeds of my estate, a reasonable compensation for his services and attention in executing this my will, over and above his equal portion of my estate.
    “ Seventhly: — I do hereby nominate, constitute and appoint my beloved wife Mary, and my son Charles, or either of them, guardians to our minor children.
    “ Eighthly: — After my youngest child shall have attained the age of twenty-one years, I desire that my said execu-. tors will make an equal distribution of such part of my estate as may remain unallotted, amongst the children .and their representatives, if any, charging each of the children with such portion as may have been allotted to them; but it is especially understood that this provision is not intended to affect the property set aside for the maintenance of my wife, and in lieu of her dower.
    
      ‘■'■Ninthly: — And I do hereby revoke, annul and set aside all former wills, testaments and codicils, hereby declaring this to be my last and only will.
    “ In testimony whereof, I have hereunto set my hand and seal, this seventh day of February in the year of our Lord eighteen hundred and twenty-eight.”
    This will was duly admitted to probate in Mississippi, and, on February 10, 1829, a certified copy of the record and probate was admitted to record in Knox common pleas; that court then having probate jurisdiction under Ohio laws. The executors and executrix accepted their appointments and were duly qualified in Mississippi, and Charles P. duly took upon himself the execution of the' will 5 accepted the devise to him and his heirs in trust, and as trustee and executor entered upon the duties of those respective positions.
    On July 2, 1830, in Davidson county, Tennessee, he signed, sealed and acknowledged a paper reading as follows:
    “ Know all men by these presents:
    
    “ That I, Charles Percy Smith, of Adams county, state of Mississippi, being first named trustee and executor in tli© last will and testament of Elijah Smith, (my deceased hither), of the above mentioned county and state, do resign all and every trust and trusts placed in me, and by these presents have resigned all and every trust and trusts placed in me as trustee and executor to the above mentioned will; and also do hereby refuse to act, and by these presents have refused to act in the capacity, or upon any other trust that may be required of me and put in my name, by the true letter and spirit of the above mentioned last will and testament of Elijah Smith (my deceased father).
    “ In presence of whom I hereby put my hand and affix my seal, this 2d of July, 1830.
    “(Signed) Charles Percy Smith, [seal.]
    “ Attest: Thomas Atchison.”
    This paper, on August 6,1830, was presented, ex parte, in the orphans’ court, Adams county, Mississippi, and the following journal entry made, to wit: “Charles P. Smith, the acting trustee under the last will and testament of Elijah Smith, deceased, presents the written resignation of his trust under said will. Whereupon, on 'motion -oí said William S. Smith, ordered by the court, that he be and is hereby substituted in his place as said trustee under said will.” A copy of this order of the orphans’ court was, on or about October 25th, 1830, recorded in the records of deeds for Knox county, Ohio, immediately preceding the record of the auditor’s deed to Elijah Smith hereinbefore referred to.
    The constitution of Mississippi, art. 5, sec. 7, reads as follows: “ The legislature shall have power to establish in each county within the state, a court of probate, for the granting of letters testamentary, and of administration of orphans’ business, for the county police and for the trial of slaves.”
    The law passed under and by virtue of the above section, or so much as gives jurisdiction to the orphans’ court, reads as follows: “That a court of probate shall be held within the several counties of this state, to be styled the orphans’ court of the county of-, and there shall be in the manner prescribed by the constitution, an able and learned man in each county of this state, appointed judge of said court for taking the probate of wills and granting letters of administration on the estate of persons deceased, for appointing guardians to minors, idiots, lunatics and persons non compos mentis, for examining and allowing the accounts of executors, administrators or guardians, with full jurisdiction of all testamentary and other matters pertaining to an orphans’ court or court of probate in their respective counties.”
    William S. Smith had previously duly qualified as one of the three executors named in the will. It does not appear that he accepted the appointment as trustee, or that he ever, so long as Charles P. Smith was alive, attempted to act in his place. The records of these cases disclose no act, or attempt to act, by William in regard to the lands in controversy.
    On May 26,1831, Charles, styling himself as trustee and assistant executor under his father’s will, sold and conveyed the one thousand acre tract, for value, to Perus Sprague and William E. Davidson, who caused their deed to be duly recorded on June 4, 1831, and took possession' of the tract so conveyed to them. They, and those claiming under them, have ever since been in peaceable possession, claiming to own the same. Charles placed the purchase money in the hands of his mother, the “chief executor,” and she duly accounted for the same in the proper court of Mississippi. All of her brothers having died intestate and without issue, Mary Jane, from June 14, 1868, has been the sole owner of all the estate left by Elijah Smith not theretofore legally disposed of. On April 12, 1843, she married James H. Veazie, and was his wife when, in 1879, these actions were begun. Before suit she had conveyed to David W. Wood the one undivided half of her supposed .title to the Knox county lands of her father. She (her husband being a co-plaintiff) and Wood sought, by several actions against the persons then in possession, to recover said lands. The common pleas refused to set aside verdicts for the defendants in the several suits, overruled motions for new Trials; duly allowed bills of exception setting out all the evidence, and rendered judgments for the defendants in each case. As the district court affirmed these judgments, we are asked to review its action. Numerous questions were made in the record and in argument, but we will notice only a few which are decisive, and render all the others immaterial.
    
      S. J. Wood, Joseph Watson and Wm. Dunbar, for plaintiffs in error.
    1. By the resignation of Charles P. Smith the trust by the terms of the will became vested in Wm. S. Smith, and thereafter any acts done by Charles as trustee were void. Perry on Trusts, sec. 268, 275, 921.
    2. Time does not, in general, commence to run against a suit to enforce an express trust, until the trustee by word or act denies the trust, and the beneficiary has notice of the denial. Jones v. McDermott, 114 Mass., 400; Poe v. Domic, 54 Mo., 119; Nease v. Capehart, 8 W. Va., 95; Bigelow v. Oatlen, 50 Vt., 408; Crebhard v. Battler, 40 Iowa, 152; Perlcins v. Cartmell, 4 Har. (Del.), 270; Hunter v. Hubbard, 26 Texas, 537; Robson v. Jones, 27 Id., 266; 
      Boone v. Chiles, 10 Pet., 177: Seymour v. Freer, 8 Wall., 202; Cunningham v. McKinley, 22 Ind., 149. Time does not begin to run against the cestui que trust until he has knowledge, or may fairly be presumed to have knowledge 'of the existence of the trust. Hill on Trustees, 168, 583; 17 Ohio St., 485; Perry on Trusts, vol. i. § 217.
    
      Samuel Israel and J. I). Critchfield, for defendants in error.
    1. The attempted resignation of Charles and the appointment of William in the orphans’ court did not divest Charles of the title to the trust property. The orphans’ court had no jurisdiction to" act in such case. Conger v. Holliday, 11 Paige, 314; Cuy on v. Pickett, 42 Miss., 77. '
    2. As to statute of limitations, see Perry on Trusts, 780, 786; Hill on Trustees, 503-4; Wyeh v. The Fast India Co., 3 P. Wms., 309; Lewin on Trusts, marginal pp. 719-20; Angelí on Limitations, 5th ed., p. 452, § 473; Pentland v. Stokes, 2 B. & B., 75; Hovenden v. Lord Annesley, 2 Sch. & Lef., 629; Llewellen v. Mackworth, 2 Eq. Ca. Ab., 579; Croiother v. Crowther, 23 Beav., 305; Herndon v. Pratt, 6 Jones Eq., 327; Fleming v. Cilmore, 35 Ala., 62; Madden v. Allen, 1 Met. (Ky.), 495.
   Granger, C. J.

It is plain that the “ imprimis ” pq^ragraph of the will clothed Charles with a complete estate in fee simple, with full power to “ dispose ” of any part, or of the whole, and 'to apply the proceeds" as directed "by the will. The appointment as executor by paragraph “secondly” and the words in paragraph, “thirdly,” — “it being my intention to vest full and complete power in my said son, Charles Percy Smith, as trustee and executor as aforesaid, to sell or dispose of all or any part of my estate during his continuance as trustee and executor ” do not, in cur opinion, lessen or qualify the estate and power devised by the “ imprimis ” paragraph. As no bond was required, either as trustee or executor, it would be unreasonable to suppose that the fee simple was to be dependent upon the continuance of the devisee in the office of executor. These words do not form a part of either clause granting estate or power; they are a recital of intent. Although the word “ and ” couples “ trustee ” with “ executor ” a fair construction, in view of the clear provisions of the granting paragraph, will read “and” in the sense of “or,” or will insert “respectively” next after “executor”; or will hold that the trusteeship was the office essential to the power. The appointment and qualification as executor might facilitate the collection of claims and the settlement of accounts, but it added nothing to the power to sell and convey devised to the trustee. Circumstances might make it convenient to leave the collection of the estate to the widow and William, while Charles retained the power of disposition.

Holding the. fee simple with power of disposal Charles needed no authority from any court to sell and convey the Ohio lands. The certified copy of the will and probate had been duly admitted to record in Knox county and his title and power as trustee thereby fully vested.

But it is urged that his resignation accepted by the Mississippi court deprived him of power to convey.

Having once accepted the trust the beneficiaries became entitled to his services. If they were all competent to contract he could be released by mutual agreement. A court of general jurisdiction having all parties in interest before it, might discharge him in a proper case. Where the state has by suitable legislation given express power to any court upon an ex parte application to accept a resignation and appoint a successor, and the statute provides for a transfer of title and powers, a trustee may be released by order of such court. Upon this the authorities are agreed. See Perry on Trust, sec. 274, and cases there cited.

No legislation had clothed the orphans’ court of Adams county, Mississippi, with such powers, and we think its order did not affect the title, or power, of Charles as a trustee.

It is further urged that by force of paragraph “ thirdly ” in the will, the title and power passed to William, because the instrument of resignation was a refusal to act under the will. The events whose occurrence would so transfer the trust were 1, death of Charles; 2, his refusal “to take upon, himself the execution of the will.” He continued to live and he did “ take upon himself the execution of the will.” So far as concerned the trusteeship he continued bound by that acceptance so long as he lived. Hence at the time of his sale and conveyance to Sprague and Davidson he had full power and complete title as trustee; his deed was valid. He faithfully transmitted the purchase money to his mother, the “chief executor,” and she properly accounted for it. It follows that the verdict and judgment in favor of McGugin et al. were right.

In the case against Hawn, the plaintiffs claim that so long as the title remained in a trustee the statute of limitations did not begin to run; that Mary Veazie was a married woman when William S. Smith died, and therefore her action is in time. But both principle and authority clearly establish the doctrine that where the legal estate is in a trustee competent to protect it, adverse possession will become a bar against him under the same circumstances that would bar one seized in fee in his own right, and that when an action by such a trustee is barred his beneficiary is also barred. See Llewellyn v. Mackworth, Barnardiston’s Ch. Rep., 449; Melting v. Leake, 32 Eng. Law & Eq., 442; Weaver v. Leiman, 52 Md., 709; Smilie v. Biffle, 2 Barr. (Penn.), 52.

Plaintiffs urge that Warden entered with notice of the auditor’s deed to Elijah Smith; of Smith’s will and of the trust created by it; that Warden (and all claiming under him) became constructively trustees and that the statute could not run in their favor because, although they claimed title, the beneficiaries had no actual notice of the claim. But this claim is unfounded. A similar claim has frequently been denied by the courts. See McClane’s Adm. v. Shepherd’s Ex., 21 New Jersey Eq., 79; Howell v. Howell, 15 Wis., 55; Manion’s Adms. v. Titsworth, 18 B. Monroe, 582. The text books on Trusts and on Limitations of Actions state these doctrines as settled and many other cases support them. In cases of constructive trusts the statute may be pleaded successfully. We do not decide that Warden and his grantees were even constructively trustees. Upon an examination of the cases cited by counsel for the plaintiff in error, we find that they plainly recognize two very different classes of cases: — 1st, as between trustee and cestui que trust; and 2d, as between a third party and the trustee or his beneficiary. In the former the statute will not begin to run until an unmistakable disclaimer of the trust is known to a beneficiary competent to sue. In the latter the statute begins and runs in its ordinary manner. Under the agreed statement of facts Hawn’s defense of the statute was complete.

We think this case presents an example of the beneficial operation of the statute. We can well believe that when Elijah Smith acccepted a deed from Guión for 1,000 acres of the 2,400 conveyed to him by the auditor, he in some way re-conveyed to Guión the other 1,400 acres. Neither he, nor any of his heirs, who were old enough to know the facts, during the interval of forty years laid claim to that tract. We are satisfied with the judgments below, and they are affirmed.

Judgments below affirmed.  