
    Culver, Executor, v. Culver, Admr., et al.
    
      Property held in trust — Executor made trustee by devisees — Triistee one of the devisees — Agreement by heirs as to the distribution of propei'ty — Continuation of trust — Authority of trustee — Rights of estate creditors.
    
    1. Where, by the provisions of a will, real estate is devised to two sons of the testator, to be held in trust for his four children, including the two trustees, the will providing for a total or partial distribution of the trust property among the children when a majority of them should consent thereto ; and where, after all debts and legacies have been paid, the children enter into a contract by virtue of which the share of one trustee is set off to him in severalty, and the residue set apart to the other children jointly, deeds are not passed, but the contract providing that: “Each of the parties hereto, hereby agrees at any time on demand of the parties interested, to execute all such further receipts, releases, deeds, conveyances or other assurances of title as shall be necessary in order to more fully and completely to carry out the spirit and intent of this agreementThe agreement should be regarded as effecting a complete distribution of the trust property, terminating both the trust, and the powers of the trustees under the will.
    2= If, thereafter, the brothers and a sister of the trustee whose share had been set off to him in severalty, should permit the latter to manage the portion set off to them, make contracts from time to time for the sale of parcels thereof and collect the purchase money, and suffer this course of business to continue for more than twenty years without calling for an accounting in the probate court, his authority, in favor of the sureties on his executor’s bond, should be regarded as derived, not from the will of the testator, but from his brothers and sister, and they can require him to account only in a court of general jurisdiction as their agent, and not in the probate court as executor or trustee under the will.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Hocking county.
    Cynthia B. Culver, as administratrix of her deceased husband, L. H. Culver, defendant in error began these proceedings in the probate court of Hocking county by filing a petition therein to obtain a citation against Lawrence A. Culver, as executor of Reuben Culver, deceased, requiring him to file an account as such executor. He was ordered to and did file an account in the probate, to which exceptions were taken by the defendants in error. Upon hearing of this account and the exceptions taken to it, the piobate court found remaining in the hands of the executor as assets of the estate a large sum of money which the court ordered distributed according to law.
    The plaintiff in error, as executor, appealed the cause to the court of common pleas, where he was again charged as executor with a considerable sum as assets of the estate. He then took the cause on error to the circuit court where the judgment of the court of common pleas was affirmed. Thereupon the plaintiff in error brought the cause to the Supreme Court on error to obtain a reversal of the judgment of the circuit court.
    Such facts as are necessary to an understanding of the question decided will be stated in the opinion.
    
      R. A. Harrison; John 8. Friesner; 8. H. Bright; and O. H Buerhaus, for plaintiff in error.
    Brief of John 8. Friesner, for plaintiff in error.
    We claim that a proceeding by citation in the probate court, is quasi criminal proceeding, like that for contempt to show cause, etc., and the same rules apply to such a proceeding as to any other that is quasi criminal.
    The probate court has no general or common law jurisdiction, and only such as has been' conferred upon it by statute.
    
      While an executor is in a sense a trustee, he is not such in the general sense.
    The offices and duties of an executor and trustee are separate and distinct, and entirely distinguishable the one from the other. An executor and a trustee may be both appointed by the same instrument; they may be different individuals, or the two offices may be conferred upon the same individuals.
    Where one is appointed an executor, and also a trustee by the same instrument, and enters upon the execution of both trusts, a citation issued ag’ainst him as an executor, confers no jurisdiction upon the probate court to treat the citation as one issued ag-ainst him as a trustee. See sections 6178-6047-6048 of Revised Statutes.
    We think it is clear, therefore, that when Mr. Culver was cited to account as an executor any question of his duties as a trustee was not before the court, nor the proper subject of investigation. That the only questions properly to be determined, and inquired into under that proceeding, was as to how he had discharged his duties as an executor, had he collected up the assets belonging to the estate had he paid the debts and specific legacies ; or had all these matters become at rest by operation of law from lapse of time. Phillips v. The State ex rel., 5 Ohio St., 122.
    Where parties are appointed trustees by will and also named as executors they may act in both capacities, and their rights and duties under the two offices will be kept separate and distinct. Redfield on Wills, Yol. 3, p. 76. Godolf v. Walker etal., 15 Ohio St., 275.
    After the lapse of 20 years the law presumes that an estate has been fully administered, and that thereafter the executor holds as trustee. Jennings v. Davis, 5 Dana, 127; Perry on Trusts, section 559; Hinds v. Hinds, 35 Ind.,312; Judgeson v. Gibson, 5 Wind., 226; Wheatly v. Badger, 7 Penn., 459; Redfield on Wills, 3rd Vol., 77.
    Nothing could be more fallacious than to suppose that the proceedings in the probate court, can be by any process tortured into a proceeding to settle a trust, or the accounts of a trustee in the execution of his trust; it was a settlement of an executor pure and simple. The proceedings in respect to the trust are in their nature “in rem,” in respect to the trust, jurisdiction is obtained by publication. The matter published there was a settlement of an executor.
    The matter of trust and trustee was never mentioned. The two proceedings are so entirely distinct and different that there is no possibility of mistaking the one for the other. Section 6329. The notice in this case was for an executor.
    The subject we are -now treating of is the settlement of trusts and accounts of trustees created by will. Jurisdiction over the subject is expressly vested in probate courts, being courts of limited jurisdiction, and the appellate jurisdiction is given to the common pleas courts by statute. Sections 6330 and 6331; Home Insurance Go. v. Morse, 20 Wall., 451; Sompton v. Ballard, 133 Miss., 465 ; Black on Judgments, section 217 ; Geo. B. B. Bank Co. v. Harris, 5 Ga., 527.
    Upon the same principle where trustees have the power to sell land, comprised in a will, the cestue que trusts where the property has become vested in them, and they are sui juris may by electing to take the property as it stands, put an entire end to the trust. Cotton’s Trustees and the School Board of London, 19 Chan. D., 624; Floyd <& Seville v. Boff'et al., 2 O. Ct. Ct. Rep., 253; 1 Circ. Dec., 472.
    Down to the present day the current of our authorities have been uniform wherever doubts and disputes have arisen with regard to the right of different members of the same family. Compromises have been sustained by the court albeit resting upon the grounds which would not be deemed satisfactory if the transaction had been among strangers. Westboy v. Westboy, 2 D. Mar., 503.
    
      A family arrangement may be implied without any express written contract from a long course of dealings between the parties and the court will enforce it, in the same mode as it does ordinary family arrangements. Williams v. Williams, 2 D. R. & Son 378; 2 L. R. Ch. App., 294; W. & L. Leading Cases in Equity, Pt. 2, Vol. 2, p. 1685.
    For a collection of the American cases on the subject of family arrangements see American notes. Stoplton v. Stoplton, in Eq., Vol. 2, Pt. 2d, page 1726, and especially Woolfolkv. Woolf oik, 4 Dev., 535; Hurlbut v. Phelps, 30 Conn., 42; Bailey v. Wilson, 1 Dev., 182.
    Section 6233 provides that every guardian shall be allowed, etc., his reasonable expense incurred in the execution of his trust.
    Also such compensation for his services as the court may deem reasonable. Boyd v. Hawkins, 2 Dev. Equity; Storey Eq., 334; Barney v. Saunders, 31268; 16 Howe, U. S.,542 ; P. Pg ester v. Case, 4 Gault Ch., 514; Wag staff v. low erre, 23 Barb., 221.
    
      ■ See American authorities collected under the leading case of Robinson v. Pott, W. & L. Leading Cases in Equity, Vol. II, page 550.
    Myer S. Appeal, 12 P. F. Smith, 109; Brennan’s Estate, 15 P. F. Smith, 16; Lowrie Appeal, 1 Crant; 373; Frederick’s Estate, 5 Phill. Rep., 478, MeEthemy’s Appeal, 10 Wright, 348; Foltz Appeal, 5 P. F.- Smith, 428; Pirmes Estate, 1st Tucker, page 119.
    To hold that a notice published of the settlement of an executor of his accounts as such, will suffice to confer upon the court, jurisdiction to settle a trust, would violate every principle upon which the jurisdiction of courts is founded. Rogers v. Wood, 2 B. Ad., 245; Cooper v. Reynolds, 10 Wall., 316; Fithian-v. Monk, 43 Mo., 515; Black on Judgments, section 216.
    If there is any 'thing better settled in the law than any other thing, it is that consent can not confer jurisdiction either over the subject matter, or where the public is to be affected to the res.
    
    In cases where the common pleas court, has appellate jurisdiction only of probate matters, the parties can not by consent confer original jurisdiction upon them. Home Ins. Co. v. Morse, 20 Wall., 451 ;'J Somton v. Ballard, 133 Miss., 465; Black on Judgments, section 217; Geo. R. R. Bank Co. v. Hcurris, 5 Ga., 527.
    Brief of S. H. Bright, for plaintiff in error.
    The contract of 1866 was a complete settlement of the estate so far as the probate court had jurisdiction of the same.
    All of the property rights and credits constituting the estate belonged in law and equit3r to the four children of Dr. Culver. They were then all of age, sui juris, and clothed in their right minds There were no creditors then and we are not dealing with creditors now.
    We may ask: Was there any power on earth to hinder them from doing with their own whatsoever they pleased.
    By that contract they set off to L. A. Culver his share, and he agreed to execute such further papers as might be necessary to vest the title in them.
    In this connection read sections 274, 285, 401, 850 and 921 of Perry on Trusts; Woerner’s American Law of Administration, section 260, middle paragraph. Revised Statutes, 6190; Pratt v. Long-worth, 27 Ohio St., 159; Giaque’s Manual for Trustees, page 5.
    We have claimed in the last subdivision that by the contract of 1866, L. A. Culver went out of the estate, and was thereby discharged from any execution of the will either as executor or as trustee.
    The probate court never had any jurisdiction over him as trustee because he never became trustee under the will. By the contract of 1866 his duty as executor was at an end. He was nominated in the will as trustee, but he never was appointed as such.
    The will did not provide for the omission of the bond; and hence he could not act as trustee until he had given bond as such. The bond given was a bond as executor ; as the record shows.
    Giaque’s Manual for Trustees, page 5, paragraph 16;, also page 27. Under section 5981, Revised Statutes, the probate court could not “grant permission” to him to act as trustee until a bond was given; and as matter of fact it never did grant such permission. Sections 6266 and 5995.
    There is no such thing as executor de son tort, in Ohio. Benjamin v. Be Baron’s Admr., 15 Ohio, 517.
    The power to proceed against L. A. Culver by attachment and to compel him to settle had been lost. Revised Statutes, 4984 and 6178; Phillips v. State, 5 Ohio St., 122; Ohio Digest, Vol. I, 495; 18 Ohio St., 643; 22 Ohio St., 27; Woerner’s Law of Administration, section 538; Buplerath v. Van Wes, Em., Bulletin of 1894, page 35.
    The joint liability of executors in Ohio arises wholly by the reason of our statutes, See section 5996 for form of bond.
    At common law joint executors were not jointly liable. Ecert v. Myers, 45 Ohio St., 530; Revised Statutes, 5999, 6102, 5984; Woerner’s Adms. Law, 558, 738,. 1179 and 1180.
    But whatever joint liability was created by the joint bond as executors in this case is now barred by the statute and lapse of time. No action can now be maintained on the executor’s bond. Phillips v. State, 5 Ohio St., and other authorities cited above under “Limitations.”
    The bond given was by its terms an executor’s bond, and must be presumed to be nothing more, from its amount. They were bound to settle as executors in eighteen months, and after this lapse of time, such settlement will be presumed. Hence, L. A. Culver cannot now be held liable for funds coming solely into the hands of L. H, Culver soon after the death of their father.. State v. Gilford, 18 Ohio, 500.
    Failure of executor to settle in probate court. Hamden, his co-executor, said it was not necessary ; and Hamden was Ms legal adviser. Manual for Trustees, page 76, paragraph 41; Miller v. Proctor, 20 Ohio St., 442; Redf. on Wills, 565,
    No one called Mm to settlement in court except a hungry probate judge, who appears to have acted solely on his own motion.
    No one had any interest in the settlement of the probate court, for the debts were all paid, and. the estate had in fact been administered, within the real meaning of that term. Woerner’s Law of Adms,, section 201; 27Ohio St., 159, section 5 of' syllabus.
    A settlement and disposition of the estate was made by written consent of all parties in 1866.
    Brief of J. M. McGillivray, for defendants in error.
    Is an accounting barred by lapse of time ?
    The matter being in trust, the statute of limitations does not commence to run until there is a denial of the trust, or a refusal to act under it. Section 497, Revised Statutes; Phillips v. The State, 5 Ohio St., 122; 13 Am., & Eng. Enc. Law, 683-7; 2 Perry on Trusts, 2nd Ed. sections 863-4.
    And here there is neither denial nor renunciation, refusal to act or claim of a bar until April 19, 1890.
    Abandonment of the trust, or conveying to another with authority to execute will not discharge the trustee. 2 Perry on Trusts, 274; Flagg v. Mann, 2 Sumner, 486; Webster v. Vanderenter, 72 Mass., 528; Teazle v. McGugin, 40 Ohio St., 365.
    Brief of L. D. Vickers, for defendants in error.
    The probate court óf Hocking county had jurisdiction in this case and it was the only court in the state of Ohio which had, or could have jurisdiction of this case, and it made no difference whether Culver was executor, administrator or trustee or all combined; its jurisdiction over him was complete in either capacity. Sections 524, 6328 and 6330, Revised Statutes.
    It makes no difference whether the law requiring Culver to settle in the probate court was in force or not at the time of the death of Reuben Culver and the probate of his will, for the legislature had a perfect right under the Constitution to change the place of settling his accounts at any time. It is sufficient to say that at the time he filed his account the probate court had jurisdiction to require him to file his account there. Rairden v. Holden, 15 Ohio St., 207; Templeton v. Kraner, 24 Ohio St., 554; Railroad v. Commissioners, 35 Ohio St., 1; Rouse v. Chappell, 26 Ohio St., 306; Ludlow v. Johnston, 3 Ohio St., 550.
    The probate court having jurisdiction over the trust estate of Reuben Culver, deceased, and over the person who had been appointed by his will to execute the trust and administer the estate, that jurisdiction would remain so long as there was any estate of Reuben Culver to be settled, no matter in what capacity, whether as plain executor, or executor and trustee combined, the person claimed to hold it. If he was executor he must settle in the probate court, and the statute says that in either capacity the jurisdiction is the same and the settlement must be made in the same manner exactly, and the'same in each instance. Neither the powers or the duties of Culver as executor or trustee would cease until the estate was finally settled. Taylor v. Thorn, 29 Ohio St., 569; McAfee v. Phillips, 25 Ohio St., 374; Weyer v. Watt, Ex., 48 Ohio St., 545.
   Bradbury, J.

This court being of the opinion that the history of the transaction as disclosed by the record shows that the plaintiff in error, in respect of the matters contained in the account filed by him in the probate court, was acting in his individual capacity and not as executor or trustee under his father’s will, will consider no other question in this opinion; and in fact go very little beyond reciting those parts of the record which have produced this conclusion.

Dr. R. Culver, of Logan, Hocking county, died in 1861, testate, leaving surviving him a widow and four children, the latter, three sons and one daughter were then all of full age. His will was duly probated on the 16th day of April, 1861, and reads as follows:

“In the name of the Benevolent Father of all, I, Reuben Culver, of Logan, Hocking county, Ohio, being now weak in body, but being of sound mind and disposing memory, do make, ordain and publish this my last will and testament, hereby revoking, setting aside and annulling all other and former wills by me made as fully and completely as if the same had never been made.

1. And first, I do hereby make, constitute and appoint my beloved wife, Hannah D. and my two sons, Lueien H. and Lawrence A., executors of this, my last will and testament.

2. Secondly, I do hereby give, devise and bequeath to my said executors to hold as trustees, all of my real estate and personal property of every kind and description in trust for the purposes hereinafter set out.

3. It being my intention to vest in my said executors all of my property of every kind which I may own, or be entitled to at the time of my death, for the purpose of more fully carrying out the trusts hereinafter declared.

4. I direct my said executors to proceed to collect all claims which may he owing to me, except those hereinafter expressly excepted.

5. It is my wish that my said executors shall pay to Hunter & Stanbery the balance due on the two lots in Logan for which I hold their title bond, and take a deed therefor in their names as said trustees, and to proceed to erect thereon, a good, commodious dwelling house.

6. For the purpose of securing a home for my beloved wife and each of my children, I direct that they shall each have the right to occupy as a residence as they may severally wish, the following property, to-wit:

7. For the use of my wife, the entire premises on which I now reside, being about six acres of land with the appurtenances; for my sons Charles Vernon, Lucien Hamden and Lawrence Augustus, the lots on which they reside, giving to Lucien H. the use of the entire lot of which he now occupies but half; and for the use of my daughter Mary Ellen, the two lots and the house provided for in section five (5).

8. Furthermore, it is my wish that my wife have the use of all my household furniture and library and that no inventory be made of the same.

9. The uses to which my said trustees shall hold the property hereinbefore vested in them, is hereby declared to be as follows:

10. First, to pay over to my beloved wife one-third part of the whole proceeds of the same; but if from any unforseen event one-third should not be sufficient to provide her a comfortable support, then that from the residue my trustees provide for her a comfortable support during her life.

11. As to the residue my trustees shall hold the same for the equal benefit, when distribution shall finally be made of my four children, or their heirs if any of them should be dead; but it is my wish that no distribution be made .except by the consent of a majority of my said children, when an entire or partial distribution may be made.

12. In case of the death of any of my children, I direct my trustees to pay over to the legal representative of such child the proportion due to such child as rapidly as the assets shall be converted into money.

13. I request that my lands not hereinbefore mentioned may be sold by my trustees whenever they may be directed to do so by a majority of my children and the proceeds held under the same trust.

14. It is my wish that my trustees shall from time to time invest the funds belonging to my estate; but no investment shall be made without the consent of a majority of my children.

15. I request my executors to remit the balance due me from my beloved brother Cromwell B. Culver.

16. I also give to my affectionate and well beloved nephew, B. P. Culver, my stock of medicines, galvanic battery, and other instruments, saving the case of pocket instruments.

17. Upon final distribution I desire that my trustees convey to each of my children the lots heretofore designated to each; and that in making final settlement the indebtedness of each as shown by note and book account with interest shall be charged to them respectively.

18. In case of the death of either one of my executors the trust hereby granted to all shall be exercised by the survivor.

In testimony whereof I have hereto set my hand and seal and published this, my last will and testament, this 25th day of March, A. D., 1861.”

The widow and the two sons, Lucien H. and Lawrence A., qualified as executors under the will, but the widow does not seem to have taken any part in administering the estate which was estimated at a valuation of about $30,000.00, one-third of which was personal property, the balance real estate. After their appointment and qualification the two brothers entered upon the active management of the estate, ignoring however the probate court. The personal assets were collected and debts and legacies paid, but nothing further was done looking to a settlement of the accounts and distribution of the estate until October 1, 1866, the widow having died in the meantime, when the following statement of the condition of the estate was made:

October 1, 1866, Statement of R. Culver’s estate with approximate estimate of the value of assets: Apr. 1, ’61, Cash on hand and in bank..... $1812 76

Notes good and collectible .... 4682 53

Accounts good and collectible . . . 456 56

Judgments —Adcock $1354.75, Rathburn $169.00 . . . . 1523 75

Stock of Citizens’ Bank..... 2000 00

Real estate:

Homestead . . . .$5000 00

Lot No. 4, Webster’s addition C. V. C. . 1200 00

Lot No. 11, Hansackus addition L. H. C. . 1400 00

Lot No. 24, Main and Mulberry St. L. A. C. ..... . 2500 00

Lots 97 and 98, Hunter Lots, M. E. W. 400 00

Lots 30 and 31, Brickyard ..... 400 00

Out-lots...... 2300 00

Warehouse at deep-cut ...... 600 00

1340 acres in Barton Co., Mo..... 4000 00

240, Tama Co., la. . 1200 00

80, Henry Co., Ohio . 800 00

Personal property . 200 00 20000 00

$30475 60

Deduct amount expended 475 60

$30000 00

Distributive share to each of four heirs. 7500 00

Due L. A. Culver for his distributive share...... 7500 00

DueL. A. Culver from L. H. Culver. . . 174 60

Due L. A. Culver from C. Y. Culver . . 2704 30 10378 90

He receives homestead at appraisement..... 5000 00

He receives Lot No. 24 appraisement . 2500 00

He owes the estate as per schedule “A” . 2291 40

He receives for balance due 6 shares bank stock . . . 587 50 10378 90

This was the basis of the following family arrangement entered into two days later.

“This .agreement made and entered into, this 3d day of November, A. D., 1866, by and between C. V. Culver, Lucien H. Culver, L. A. Culver and Mary E. Webb, witnesseth:

That, whereas the said parties have for many years had mutual dealings interchangeably, and have this day made full and complete settlement so far as relates to L. A. Culver and find the following results:

C. V. Culver is indebted to L. A. Culver in the sum of $2,704.30 and Lucien H. Culver is indebted to L. A. Culver in the sum of $174.60 as is shown by the schedule of amount hereto annexed:

And whereas the said parties are the children and heirs at law of the late Dr. R. Culver, deceased, and on an estimate made this day, the whole value of the estate left by the said decedent is supposed to be about $30,000, and the distributive share of each heir $7,500:

And whereas it is found that the said L. A. Culver has withdrawn from said estate as a portion of his distributive share the sum of $2,291.40.

Now for the purpose of making a full and final settlement of all claims, or demands owing to the said L. A. Culver by either of the other parties or to either of the said other parties by the said L. A. Culver, and also for the purpose of setting aside to the said L. A. Culver, his full and equal portion of the said estate it is agreed as follows:

1. The said L. A. Culver agrees to convey on demand to Mary E. Culver hereinafter named the house and lot in Reno now occupied by him.

2. The said L. A. Culver also agrees to transfer to Mary E. Webb ten shares of the stock of the First National Bank of Logan which is to be chargeable to her as a payment made by C. V. and L. H. Culver of that amount on her distributive share of said estate; and also at any time to transfer to such party as either C. V. Culver or Lucien H. Culver shall hereafter direct twenty shares of said stock and pay to Mary E. Webb the dividends arising from said twenty shares of stock until such directions shall be given.

3. The said C. V. Culver, Lucien H. Culver and Mary E. Webb agree to release and do hereby release to the said L. A. Culver, his heirs and assigns the following parcels of land, to-wit:

The late homestead of the decedent aforesaid in the town of Logan, county of Hocking, and state of Ohio, containing about six acres more specifically described in a deed made by John B. Zimmerman and wife to the said decedent, dated February 6, 1841, and recorded, in said county, in Book F, page 208, and which was valued at $5,000 in the estimate of said estate, and also lot No. 24, in the town aforesaid, being the same set apart to the said L. A. Culver in the will of said decedent and valued in the foregoing estimate at $2,500.00.

4. The said L. A. Culver hereby releases to the said C. V. Culver, Lucien H. Culver and Mary E. Webb and their heirs and assigns all of the rest and residue of said estate, or any right to participate in any distribution of the same, and agrees to join in the execution of any deeds or conveyance of the same as from time to time may be required.

5. It is agreed and understood that any and all claims or demands owing by any of the aforesaid parties to L. A. Culver, or owing by him to any of .the said parties are hereby canceled and discharged without regard to the manner in which claims and demands arose or how they are evidenced.

6. Each of the parties .hereto, hereby agrees at any time on demand of the parties interested, to execute all such further receipts, releases, deeds, conveyances or other assurances of title as shall be necessary in order to more fully and completely to carry out the spirit and interest of this agreement.

7. MaryE. Culver, wife of the said C. Y. Culver; Cynthia B. Culver, wife of the said Lucien H. Culver; LucyH. Culver, wife of the said L. A. Culver, joining herein with their said husbands, assent to the terms of this agreement.

In testimony whereof the said parties named herein have executed this agreement in four parts, each of which are to be taken as originals.

C. Y. Culver, (seal)

Mary E. Culver, (seal)

Lucien H. Culver, (seal)

Cynthia B. Culver, (seal)

Lawrence A. Culver. (seal)

Lucy H. Culver, (seal)

Mary E. Webb, (seal)

It is hereby understood that the amount herein specified as due to L. A. Culver as follows:

From C. V. Culver .... $2704 30

From L. H. Culver .... 174 60 $2878 90

Are discharged as follows:

By the assumption of L. A. Culver’s indebtedness to the estate........ 2291 40

By stock of First National Bank, Logan...... 587 50 $2878 90

C. V. CULVER.”

We think this instrument effected such a division of the estate of R. Culver as was authorized by item eleven of his will. If instead of setting off to Lucien H. Culver, C. V. Culver and Mary E. Webb, jointly, the three-fourths of the estate to which they were entitled the share of each had been severed, and as was done with the share of L. A. Culver, set off to each separately, there would seem to be little ground to contend that it was not a final division of the estate. The period had arrived when a division could be made; the assets had been collected, debts and legacies satisfied, and the widow was dead. No obstacle intervened to prevent a final and complete distribution of the residue of the estate. The parties entitled to share in the distribution were of full age and competent to act. Whether the share of each should be set off in severalty, or whether the shares of two or more should be set off to them jointly, was a matter that concerned them alone. When this contract was executed the authority of L. A. Culver under the will, whether as executor or as trustee in respect of the real estate assigned to his brothers and sister was subordinate to their proprietary rights. They could have sold the estate thus assigned to them without his consent or even against his prohibition, and he would have been bound by this family compact to execute deeds to the purchaser.

It may be that by their sufferance he might have continued to exercise the powers conferred upon him by the will of the testator, and that conveyances subsequently made by him and his co-trustee under those powers would have conveyed a good title to the grantee. This result, however, would not follow because his power to act under the will continued, notwithstanding the family compact; but because being originally clothed with such power by the-will, an express or implied revocation, or termination of it secretly made by the acts of the beneficiaries under that instrument, would not be permitted to affect tona fide grantees for value.

The parties to this contract of distribution may, or may not have fully comprehended its scope and operation. One or two circumstances, however, that reflects strongly upon this question stands out with prominence in every stage of this peculiar transaction. One is the unlimited confidence reposed in each other by the children of Dr. Culver, the testator, and the strength of their devotion to the interests of the family as it was represented by the plaintiff in error. The other is perhaps but a corollary of the first one, and that is: That after this family contract was executed, November 3, 1866, one brother, Lucien H. Culver, lived until the year 1881, a period of fifteen years; the sister lived until 1885, nineteen years thereafter. The other brother is still living. Yet during all that long period of time, the plaintiff in error did not file any account of his transactions in the probate court nor was he required to file one there. If there was any serious doubt as to the effect to be given to the contract of November 3, 1866, the confidence reposed in the plaintiff in error together with this long delay would be entitled to considerable weight as a practical construction of its meaning and tending to show that his brothers and sisters were dealing with him personally.

' Still further: Even if this contract of November 3,1866, had not effected by its own force a division of the estate, its terms were such that, together with long delay, and the manner in which the brothers and sister dealt with each other in the matter, it would be obviously unjust to permit them to resort to a course of procedure which, would involve the rights of sureties on the bond of the executors. If Lucien H. Culver and the sister, Mary Ellen, were alive and urging this claim, the absence of any equity in their favor, as against the sureties on the bond of their brother. Lawrence A. Culver would clearly appear. They reposed full confidence in him, they permitted him to transact the affairs connected with the real estate that had been assigned to them by the terms of the contract as if he were an agent of their own creation and answerable to them only rather than an executor or trustee whose accounts were to be rendered to the probate court. They were of full age and competent to elect in which capacity he should act. After this long delay and in favor of the sureties they should be held to have elected to deal with him as an agent appointed by themselves, for the settlement of whose accounts they must resort to a court of general jurisdiction. The rights of the personal representatives of this brother and sister are in this respect identical with those that the brother and sister would possess if living and before the court.

Counsel urge with great force that if the plaintiff in error is liable to account for his transactions at all it is immaterial whether it is before the probate court or in the court of common pleas under its general jurisdiction. In so far as the judgment will affect him personally this contention may be true. But as we have seen, others, the sureties of the plaintiff in error who are not before the court, may be affected by the judgment. For, if without collusion a judgment should be rendered against him as executor or trustee under the will, these sureties would be bound by such judgment. If the judgment should be against him as an agent created by the parties these sureties would not be liable, for their undertaking related only to such acts as might be done by him under and by virtue of the will. These considerations apply equally to those who may be sureties on an appeal or supersedeas bond. These sureties undertake to answer for their principal only in the character in which the action against him is prosecuted.

The court of common pleas should have dismissed the proceedings.

Judgment reversed.  