
    W. W. Walker and others vs. Ex’ors., Peter W. Fraser and others.
    P. F. was trustee under marriage articles by which husband and wife covenanted to settle the share of the wife in the estate of her late husband, “as soon after said estate is divided as may be practicable,” to the joint use of husband and wife during the coverture — then to the use of the survivor, and on the death of the survivor, to the issue of the wife by her late husband, and the issue of the then intended marriage. Under bill after-wards filed, to which the trustee was no party, the estate of the wife’s late husband was divided, and her share therein, consisting of money and choses, paid over to her husband. No settlement was ever made and the husband died some fifteen years after the division, insolvent: — Held, that the trustee, by his neglect to have the wife’s share settled according to the provisions of the articles, had made himself liable to the remaindermen.
    The bill stated, that the money and choses went into the hands of the trustee or his agent or agents, and the prayer was that he might account for what was received, or, but for his wilful neglect or default, might have been received by him: — Held, that, under the statement and prayer, relief might be given on the score of the trustee’s neglect to have the share settled.
    The marriage articles were executed in 1832, — the husband received the wife’s share in 1836, and in the same year the wife died. The trustee died in 1849, — the husband in 1851, and in 1852, this bill was filed by the remain-dermen — the eldest of whom was then twenty-eight years of age: — Held, that the claim could not be regared as stale — the remaindermen not being bound to file their bill until after the death of the husband, the surviving tenant for life.
    BEFORE DUNKIN, OH., AT GEORGETOWN, FEBRUARY, 1854.
    Dunkin, Ch. Legrand G-uerry Walker departed this life, intestate, on the twenty-sixth day of March, in the year of our Lord one thousand eight hundred and twenty-nine. His heirs at law and distributees were his widow, Mary E. Walker, and his three children, then of tender years, to wit, Hasford Walker, William Walter Walker and Catharine L. Walker. Administration of his estate was .committed to his widow and to Peter Walker and Benjamin Walker, brothers of the intestate.
    On 3d April, 1832, Mary E. Walker, the widow of the intestate, being about to intermarry with Edward Thomas, articles of agreement were entered into between the said parties and Peter W. Eraser, in which it was recited, among other things, that the estate of Legrand Gr. Walker, deceased, was yet undivided, and it was covenanted on the part of the said Mary E. Walker and Edward Thomas that, as soon as practicable after the division of the estate, they would, by proper assurances, settle the distributive share to which the said Mary E. Walker was entitled to the purposes and uses declared in said articles, to wit, to the joint use of Edward Thomas and his intended wife during the coverture — then, to the use of the survivor, and on the death of the survivor, to the issue of the body of the said Mary E. by her late husband, L. Gr. Walker, and the issue of the marriage then about to be consummated. The marriage took place — Mrs. Thomas died (it is said in the bill) some time in 1836, leaving her children above named, as also two children by the latter marriage. In 1839, Catharine, one of the children by the former marriage, departed this life, unmarried and intestate. In September, 1851, Hasford Walker, another of the children, died intestate, and letters of administration were granted to his widow, Mary A. E.“ Walker. In December, 1851, Edward Thomas died intestate, and, as it is said, insolvent, and administration on his estate was granted to R. E. Fraser.
    Sometime in 1849, Peter W. Fraser died, leaving a will of which two of the defendants are executors, and leaving a large estate, real and personal. These proceedings were instituted on 21st February, 1852, by the plaintiffs, who are the children of Mary E. Thomas, deceased. The bill charges that sometime after the marriage, a bill was filed by Thomas and wife against the other distributees and the legal representatives of Walker’s estate for an account and partition — and the plaintiffs allege that the distributive share of their mother, amounted to between ten and eleven thousand dollars, “ which amount, consisting of ^money and choses in action, went either into the hands of the said Eraser, as trustee, or into the hands of his agent or agents acting under his authority.” This is the entire charge of the bill upon which it is sought to render the estate of tjie trustee responsible. Twenty years had elapsed since the testator, Peter W. Eraser, became a party to the articles, and some three years had expired since his decease before the bill was preferred. The defendants aver their entire ignorance of all the matter charged, require strict proof thereof, and deny the liability of the estate of the testator.
    It is due to the memory of the trustee to state that the evidence affords no ground whatever for the charge that, either by himself or his agents, he ever received any part of the fund in which Mrs. Thomas had an interest as a distributee of her deceased husband. The only foundation for the complaint of the plaintiffs is that he omitted to take the proper measures to prevent the order of the court which directed the share of Mrs. Thomas '-to be paid to her husband and herself, or that he neglected to require a settlement of the same, at or after the division, according to the covenant in the articles contained.
    The articles were executed and duly recorded in April, 1832. All the parties resided in Georgetown district. The trustee lived on Waccamaw until about 1840, and then removed to Pee Dee, where he died in 1849. ELis residence was about twelve miles from Georgetown, and the witness said he came to town half a dozen times in the course of the year. He had been educated a lawyer, but the witness did not know that he ever practised. On 24th April, 1835, Edward Thomas and Mary E. Thomas, his wife, instituted proceedings in this court against the personal representatives and the children of L. G. Walker, deceased, for an account and division of his estate. Peter W. Eraser appears to have been no party to these proceedings, nor does the existence of the ante-nuptial agreement appear to have been in any manner brought to the notice of the Court. Part of the estate consisted of a plantation on Black river and some real estate in the town of Georgetown. The real estate was sold by the Commissioner, and, on the 28th April, 1836, Mr. Commissioner Cohen filed his report, setting forth an account of the real and personal estate of L. Gr. Walker, deceased, and the share to which the complainants in these proceedings were entitled. This report was, on the same day, confirmed by the Court. It is only necessary to add that, in the report so made and confirmed, the Commissioner stated that he had set off to Edward Thomas and wife “ their share in money and securities.” It appears from the statement of the bill that Mrs. Thomas died in the course of that year (1836.) Her husband survived until 1861. The witness (JB. IT. Wilson) thought he was solvent in 1842 and continued so for two or three years after-wards, but he died insolvent.
    It is very important to the community that the duties and responsibilities of trustees in cases of this character should be settled and well understood. The office is essentially gratuitous, is commonly regarded as merely honorary, and yet it may impose no ordinary obligations of vigilance and involve liabilities of the gravest character. Mr. Justice Story remarks that, although in a variety of cases it is not easy to say what the precise duty of a trustee is, yet “ in a general sense a trustee is bound, by his implied obligation to perform all those acts, which are necessary and proper for the due execution of the trust which he has undertaken. He is bound to good faith and reasonable diligence.” But “ where a trustee has acted with good faith in the exercise of a fair discretion, and in the same manner as he would ordinarily do in regard to his own property, he ought not to be held responsible for losses.” In reference to such circumstances, it has been properly remarked, that the rules in regard to the liability of trustees should not be laid down with a strictness to strike terror into mankind acting for the benefit of others, and not for their own; and that, as trust is an office necessary in the concerns between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety, it is an act of great kindness in any one to accept it. To add hazard or risk to that trouble, and to subject a trustee to loss, which he could not foresee, and consequently not prevent, would be a manifest hardship, and would be deterring every one from accepting so necessary an office. Ex parte Belchin and, Parsons, Amb. 219. Knight vs. Earl of Plymouth, 1 Dick. 126.
    Perhaps it is impracticable to prescribe any less general rule for the conduct of trustees, or a more liberal principle to be observed in the investigation of their transactions. The object of creating a trust of this character is to protect the interests of those who are unable to protect themselves. In marriage settlements these persons are the wife and children. The leading purpose is, in the first instance, to secure the property from the marital rights of the husband which would otherwise attach. When the trustee accepts the office by becoming a party to the instrument, he is, in the language of Mr. Justice Story, “ under an implied obligation to perform all those acts which are necessary and proper for the due execution of the trust which he has undertaken.” By certain. Acts of the Legislature the instrument is declared void unless recorded within a specified time in the proper offices. The trustee is entitled to the possession of the deed, and it is his duty to see that the same is recorded according to law. If he neglect to have the deed properly recorded and loss ensue, he is responsible for such loss to the cestui que trusts. Cooper vs. Bay, 1 Rich. Eq. 26. The language of the Chancellor is, “ that if the trustee, after accepting a trust, does, or omits any acts materially calculated to destroy the trust, or impair the interests of his cestui que trusts, and, in so doing, betrays the want of that diligence which a man of ordinary prudence would exercise in relation to his own property or interests, he is responsible for the consequences that may ensue.” See Le-win on Trusts, ch. 12, sec. 1, p. 265.
    It is proper then to inquire what were the duties of the trustee in this instance; and whether the loss, if any, which ensued, was in consequence of his acts, or omissions. In April, 1832, the estate of Legrand Gr. Walker was yet unsettled and undivided. His widow would become entitled to one-third after payment of debts. In view of these circumstances, and reciting them, the ante-nuptial agreement was made, whereby the said Edward Thomas and Mary E. Walker covenanted and agreed with the said Peter W. Eraser, to settle and assure to him in trust, for the purposes therein declared, all the real and personal estate to which the said Mary was or might be entitled as a distributee of her late husband, “ as soon after the estate is divided as may be practicable.” The marriage took effect. The deed was properly recorded; and three years thereafter, to wit, in April, 1835, the proceedings in partition were instituted, carried on, and not consummated until more than a year after their institution. Eor the purposes of the present inquiry it is Superfluous to remark that the plaintiffs in those proceedings should have brought to the notice of the Court the ante-nuptial agreement of April, 1832, and have made the trustee a party to the record.- The husband, Edward Thomas, was the actor in those proceedings. It was his duty to have imparted the necessary information to his Counsel, and, through him, to the Court. He may have forgotten the existence of the ante-nuptial articles. He may have studiously concealed their existence, in order to. prevent any obstacle to his receipt of the fund; or (which is, perhaps, the most probable conjecture) he may not have deemed the disclosure necessary, as he proposed, at some convenient period, to make a settlement in accordance with the articles.
    Nor would it be profitable to speculate as to any possible effect upon rights derived under those proceedings in consequence of the fact that the trustee was no party thereto.
    
      The primary object of the ante-nuptial agreement was to prevent the improvident or unauthorized interference and control of the husband. His supposed interests, or his purposes, might conflict with the interests of his family, and a trustee was interposed chiefly to guard their rights against the consequences of his acts. Independently of the articles, the wife and children had an equity for a settlement of this property, which would have been recognized if it had been brought to the notice of the Court. But the articles prescribed the terms of settlement, and would have presented an irresistible claim to the protection of the Court. It may well be presumed that the trustee was appointed because it might have been anticipated that the husband would not be sufficiently active in presenting or advancing interests which were in derogation of his absolute right of enjoyment. The trustee owed to his cestui que trusts the exercise of that diligence and care which a man of ordinary prudence would use in his own concerns. Was this ordinary vigilance exercised ? The partition of Walkers’s estate was not a thing done in a corner. The proceedings were of public notoriety. Many persons were parties,,either as plaintiffs or defendants. The sale of the real estate for the purpose of partition required a notice to be published in the Gazette of the district.. The trustee was a large landed proprietor — a resident of the district, and on visiting terms with the family of the cestui que trusts. It seems inconceivable that he should have been in ignorance of these ‘ proceedings. It is more probable that he considered it no part of his business to interfere in any manner — that he had discharged his duty when the articles were recorded, and that, if he received no part of the trust property, he.incurred no responsibility. It is a very common self-delusion, of which trustees should be disabused. Under the circumstances of this case, it was the duty of the trustee to have taken cognizance of the proceedings in partition, and to have interposed active measures to secure the interests of the 
      cestui qué trusts and prevent the payment to the husband, Edward Thomas.
    But if the trustee had been absent from the country, or, from any other cause, may be assumed to have been ignorant of the judicial proceedings by which Edward Thomas reduced the fund into his own possession, his subsequent duty was still more plain; and by the terms of the articles, was scarcely left to implication. Edward Thomas and Mary E. Walker, his intended wife, had therein covenanted and agreed with the trustee to settle, by good and sufficient conveyances, the interest of Mrs. Walker in her late husband’s real and personal estate “ as soon after said estate was divided as might be practicable.” The estate of L. Gr. Walker was divided in 1836-1837, and the whole amount of Mrs. Thomas’ interest therein was received by her husband. No measures whatever appear to have been adopted by the trustee to require Edward Thomas to comply with his covenant. The witness (B. JET. Wilson) thinks that Thomas remained solvent for about ten years after-wards, when he became insolvent, and so continued until his death in 1851, the trustee himself having died in 1849. In the meantime, it may be remarked, that Mrs. Thomas had died soon after the divison, and but one life intervened before the right of enjoyment on the part of the children would attach. The husband was bound by his covenant “ to transfer the estate to the trustee by proper assurances — as soon as practicable after the partitionand it was the duty of the trustee to enforce the obligation. The duty became more imperative if the trustee was aware of the proceedings in partition and omitted to interfere. After considering all the circumstances, the Court is reluctantly brought to the conclusion that the conduct of the trustee amounted to that degree of negligence which rendered him responsible to the cestui que trusts for the loss sustained, whatever that may be. But the Court is unable to perceive any evidence of agency on the part of Edward Thomas, much less is there -any ground to suppose that any paft of the trust fund came to the hands of the trustee. He, or rather his estate, is to he amerced in consequence of his acquiescence, or non-feasance. In one aspect it is a hard case; but the trustee undertook, as has been already suggested, to look after and protect the interests of those who are supposed to be incapable of ascertaining and protecting their own. If he had declined the office others might have assumed it, or other precautionary measures might have been adopted. If he had received the fund, either by himself or his agents, he would be responsible. But I think the trustee, or his representatives, are entitled to have the case presented as it, in fact, existed, and to have an opportunity so to meet the cáse. The trustee was dead some years before these proceedings were instituted. His estate passed to his child, then of immature years, and necessarily ignorant of all the transactions. So far as the Court can perceive, three-fifths of the fund, with the loss of which it is sought to charge the estate of the trustee, was a vested interest in parties who were of full age before the death of the trustee in 1849, and were men grown some eight years before the bill was filed. Although they were not entitled to the possession of the estate, yet, having vested interests, they might, according to Oooper vs. Day, have maintained their bill at any time to remove the trustee, or render him responsible for his negligence or other misconduct. Whether they were hound to prefer their bill, which they had a right to prefer; or might wait until the death of Edward Thomas, although they had themselves attained maturity, and then pressed to render the estate of the deceased trustee responsible, without incurring the objection of stale claim, or other defence of that character, are questions which the Court would be unwilling to decide until the facts are more fully and accurately developed. In Oooper vs. Day, p. 30, th^original bill, filed in 1838, was dismissed as to the trustee, because, among other grounds, the facts of misconduct, &c., were not charged so as to subject him to liability, although the subsequent bill of 1841, charging specifically the acts of negligence, &c., was sustained. It is due to the character of the claim, especially when the estate of a deceased person is subject to be charged for his alleged default, that the default should be plainly set forth. It is a legitimate and effective argument against the trustee, (and the force of it has been recognized by the Court,) that the parties all resided in the same neighborhood, and were on terms of intimacy. The same circumstances may provoke the inquiry, why the trustee was not stimulated to his duty, or called to an account for his supineness or neglect, by those who had so strong a motive to action, and who must be presumed to have been cognizant of their rights. It may, or may not, be difficult to afford a satisfactory answer to any such inquiry. Although there is no novelty in the general principles applicable to the duties and responsibilities of trustees, the case itself is one of new impression. The amount involved is important to the parties — the precedent may be still more important, as declaratory of the liabilities incurred by trustees in marriage settlements, and the rights, as well as the remedies, of those whom they represent.
    It is ordered and decreed, that the plaintiffs have leave to amend their bill by setting forth any acts of neglect or default specifically on the part of the late Peter W. Eraser, trustee, which may have rendered him responsible to the plaintiffs, and that the defendants have leave to defend themselves against the said amended bill as they may be advised. It is further ordered and decreed that the Commissioner state an account of the moneys received by the late Edward Thomas, (distinguishing between principal and interest,) under the proceedings in partition in this Court to which reference has been made, and that he report thereon, with leave to report any special matter. It is further ordered and decreed that he take an account of the estate of Edward Thomas, deceased, in the hands of his administrator and report thereon.
    Complainants appealed from the decree and moved that it be modified, because—
    
      1. His Honor erred' in not decreeing that the representatives of P. W. Eraser, trustee, should account for the trust fund which was either received bj him under the marriage articles of Thomas and wife, or but for his wilful neglect or default might havá been received by him.
    2. Because no objection having been taken to the alleged variation between the allegations of the bill and the proof during the progress of the cause, his Honor should have proceeded to grant relief on the case as made.
    The defendants also appealed and insisted that the circuit decree is erroneous in not dismissing the bill, for that the case made by the complainants is in the nature of a claim for damages for the nonperformance of his contract against the estate of the testator, P. W. Fraser, and it is submitted that no such responsibility attached to him under the marriage articles to which he was a party; and that there is no equity to extend their construction against him.
    
      Simonton, for complainants.
    
      Mitchell, contra.
   The opinion of the Court was delivered by

Ward law, Ch.

The liability of the estate of the trustee for his breach of trust, is so thoroughly discussed in the circuit decree, that this Court deems it necessary to add little on that point beyond its approval of the conclusion attained by the Chancellor. This conclusion is assailed by the defendants on the ground that the liability of the trustee did not arise because he did not receive the moneys of the trust estate, and that the husband was really the trustee for transferring the funds to Mr-Fraser. It is the usual course of Courts of Equity to charge trustees and their representatives with the consequences of a breach of trust, whether they derive benefit from the breach of trust or not; as where one of two trustees receives no money, but by concurring in an act which enables the other trustee to receive, makes himself liable for the others devastavit. Adair v. Shaw, 1 Sch. & Lef. 272. Thus in Kinloch v. Ion, 1 Hill, Ch., 190, a trustee who lived remotely from the trust estate, and had not otherwise intermeddled in the trusts, except by joining the other trustee and the husband in a conveyance of the land held in trust, and thereby contributing to put the proceeds of sale in the power of the husband, was made responsible for the husband’s waste of the fund. In Kinloch v. Ion, the original trust estate was a sum of money advanced by the father of the wife to the husband, and by the marriage contract it was made the duty of the husband to invest the money in property to be held by the trustees on the trusts declared in the contract; and of course no liability attached to the trustees until such investment had been made by the husband. But in the present case no such trust or confidence is reposed in the husband. The articles here contain no intimation that the husband was to exercise any discretion concerning the trust estate. Edward Thomas and Mary E. Walker covenanted with the trustee, that, in case of their intermarriage, they would convey and assure to the trustee in fee all her estate, particularly her undivided share of the estate of her late husband L. Gr. Walker, “as soon after said estate is divided as may be practicable,” in trust, for the joint use of said Edward and Mary during their joint life, then for the use of the survivor for life, and on the death of the survivor for the use of the heirs of the body of the said Mary, living at the date of the articles, and of the heirs of her body to be begotten by the said Edward. The husband was merely under a legal liability by covenant; and the trustee by accepting the covenant came under the trust and obligation to enforce the liability and duty thereby created. It is one of the chief ends of marriage contracts to interpose a responsible person in the character of trustee in the place and for the protection of the wife, who is necessarily under the disability of coverture, and of the children, who may be under the disability of infancy, against the rights and interference of the husband: and we should not make a construction defeating this end, where it is not required by the text or context. The Chancellor after reviewing the facts, says, it is inconceivable that the trustee should have been in ignorance of the proceedings in partition in 1886-7, by which the estate of L. Gr. Walker was distributed, and under the operation of which the thirds of Mrs. Thomas, as widow of Walker, passed into her husband’s hands and were ultimately wasted. Yet the 'trustee did not interpose for his beneficiaries during the pendency of these procedings, nor at any time before his death in 1849; and he must be held to have suffered the husband to receive the trust funds, and to have acquiesced in his abuse of the trust. When the trustee accepted the trust by joining in the execution of the articles, he incurred the obligation of discharging actively the duties of his office; and his withdrawing from all participation in the affairs of the trust, so far from affording any excuse to him, was in itself a breach of trust.

The Chancellor, however, although he asserted clearly and strongly the doctrines of the Court as to the liability of trustees, refrained from final judgment in this case, and directed the plaintiffs to amend their bill by charging specifically the acts of default or neglect by the trustee on which they relied to make his estate liable, and gave leave to the defendants to defend themselves further against the bill when amended. The plaintiffs appeal because final judgment was not pronounced; and we are of opinion, the Chancellor concurring, that the appeal ia well taken. In the stating part of the bill, the plaintiffs, after setting forth the proceedings for the partition of L. Gr. Walker’s estate, allege that the share of their mother, consisting of ten or eleven thousand dollars in money and clioses, “went either into the hands of the said Eraser as trustee, or into the hands of his agent or agents acting under his authority;” and part of the prayer of the bill is that an account may be taken of the share of plaintiff’s mother, “ which was received by the said Peter W. Eraser, as trustee, under said marriage settlement, or but for the wilful neglect or default of the said Eraser might have been received by him, or by any other person or persons acting under his authority.” It is clear on the evidence that the trustee did not receive the share of the mother of plaintiffs by himself or any regularly appointed agent, and perhaps it would be straining too hardly even against a negligent trustee to affirm that mere non-feasance on his part, should be held to imply sufficiently that he authorized the receipt of the money by the person who did receive. Yet the great purpose of strictness in pleading is to prevent surprise on the opposite party by any variance between the allegations and proofs; and here the prayer of the bill, at least not inconsistent with the stating part, gave distinct notice to the defendants that the estate of the trustee would be pursued for the negligence or default of the trustee in not receiving the money. The defendants complained of no surprise, and made no objection to the evidence for departure from the allegations. Objection on the score of such variance should be promptly taken when the evidence is offered, or it will be considered as waived. Hatcher v. Hatcher, McMul. Eq. 311. In this Court while we endeavor to discourage laxity of proceedure, we also discourage prolixity and delay, and seldom permit ourselves to be embarrassed by mere technicalities in achieving the right of the cause. In our opinion the bill in this case, although not very'exact, states adequately the grounds on which relief may be granted. ,

Again, the Chancellor was reluctant to proceed to final judgment from some doubt whether the defendants might not defend themselves against some of the plaintiffs on the ground of the staleness of the claim. Until the death of Mrs. Thomas in 1886, it could not be ascertained wbo were the heirs of her body entitled to take in remainder under the trusts of the articles.- The trustee died in 1849; Edward Thomas, the surviving life tenant, died in 1851, when the right of the plaintiffs to enjoyment accrued; and the bill was filed in July, 1852.— When the bill was filed, the oldest child of Mrs. Thomas had been of mature age about seven years; the next child, who died shortly before the filing the bill, and the representative of whom is a plaintiff, would if living have been about twenty-six years of age; and the two other children, who are plaintiffs, were infants. It is clear that none of the plaintiffs could be affected by the Statute of Limitations, or the lapse of time, while they were under this disability of infancy; and the time which has elapsed since the oldest attained full age is insufficient to make his claim stale. In a contest between tenant for life and remainderman on one side, and on the other a third' person claiming adversely to the successive rights of both, it may be that such adverse right might be so matured by lapse of time as to inhibit relief by a Court of Equity. Cholmondely vs. Clinton, 2 Jac. and Wal. 1; Price vs. Copner, 1 Sim. and Stu. 347; Harrison vs. Hollins, 1 Sim. and Stu. 471; Foster vs. Blake, 4 Bligh, 140. But in a contest between remainderman and tenant for life, where the tenant for. life is to do some act to accrue for the benefit of the remainderman at the death of the tenant for life, I incline to the opinion that the remainderman is not bound to inquire until the death of the tenant for life whether the act has been done; and that, as Sir Edward Sugden argues in Bennett vs. Colley, 4 Sim. 181, he may wait until the death of the tenant for life, although he may, if he pleases, have his remedy sooner. In the case last cited, a testator bequeathed "a church lease for twenty-one years, renewable of course at the end of every term of seven years, to A, for life, with remainder to his first and other sons; and directed the lease to be continually renewed by the persons in possession for the time being. A. neglected to renew in UT84 and died in 1830. His eldest son attained twenty-one in 7800, and in 1831 filed Ms bill to be compensated for the loss of the lease out of A’s assets; and it was field that fie was entitled to tfie relief notwithstanding tfie lapse of time. Sir Lancelot Sfiadwell in giving judgment says, in substance, that although there was incipient damage to tfie remainderman in 1784, and there was prospective damage during the whole lifetime of tfie tenant for life, yet that the ultimate damage against which a Court of Equity would be finally called upon to relieve would not happen until the death of the tenant for life, and that although preventive relief might be afforded sooner, the full measure of justice could not be ascertained until the right of the remainderman accrued in possession.

The present case is much stronger than the case of Bennett vs. Colley. Here, in the case of the plaintiff whose.neglect to sue is the grossest, seven years, only, expired before suit after he became sui juris, and this is quite too brief an era to raise the presumption of his acquiesence in- the breach of trust; and as the trust in question is a technical and express trust, the Statute of Limitations has no application. It is conceded, that if the trustee had received the moneys which were the proceeds of the mother’s share, and had failed to invest them properly, he as an express trustee could not protect himself by the Statute; but it is supposed that his failure to receive the moneys presents a case different in principle from his failure after re" ceipt to make the proper investment. I do not comprehend this distinction. The nature of this breach of trust, where the breach is inferred from negligence, cannot change the nature of his trust. If he had done any act which purported to be a full execution of his trust, and which his beneficiaries were bound to notice, the statute would run in his behalf from the date of such act; but that state of things is foreign to the case. His breach of trust consists in mere non-feasance — his failure to require from the husband an assurance of the wife’s interest as soon as practicable after her share was separated from those of her tenants in common, to he enjoyed in severalty. What was the date of the practicability of a conveyance after a division was effected, is utterly indeterminate; and the statute must begin to run from some definite day. During the whole life time of the surviving tenant for life, the remainderman might reasonably forbear from suit on the belief, either that a conveyance had been made to the trustee, or that the practicable epoch for the conveyance had not arrived in the opinion of the trustee.

The case of Cooper vs. Day, 1 Rich. Eq. 28, cited in the Circuit decree, holds that remaindermen, whose interests are vested, are entitled, in the life time of the tenant for life, to file a bill to have the trusts in their favor declared, and to have the trustee removed if he has misbehaved. So here, the plaintiffs within any reasonable time after the share of their mother had been ascertained, might have filed a bill for the removal of the trustee, ahd the appointment of a receiver in his stead, and for the security of their interests under the marriage articles ; but they were not compelled on pain of forfeiture to seek such preventive relief, and in reliance upon the fidelity of the trustee, and the sufficiency of his estate, might wait until they were entitled, to enjoyment. In Cooper vs. Day, although the neglect to record the trust deed, which was the ground^ of the trustee’s liability, had happened long before the suit, the question of the statute was not raised.

It is ordered and decreed, that the commissioner of this Court for Georgetown take an account of the estate of Edward Thomas, deceased, in the hands of his administrator, and report the extent of the assets applicable to the claims of the plaintiffs.

It is further ordered, that the representatives and distri-butee and the trustees of the distributee of Peter W. Eraser, deceased, account with the plaintiffs before the said commissioner for the share of Mary E. Thomas in the estate of her late husband, L. G. Walker, which ought to have been assured to the said Eraser, as trustee under the marriage articles of Edward Thomas and wife; and that said commissioner report the account, distinguishing between principal and interest.

It is further ordered that the costs be paid from the estate of Peter W. Eraser, deceased.

It is finally ordered, that the Circuit decree be • affirmed except as herein modified, and that the appeal he dismissed.

Johnston, Dunkin and Dabgan, CC., concurred.

Decree modified.  