
    Parker v. Cater.
    Where the creditor of an estate sued the executor, and as part of his petition exhibited a judgment of the Orphans’ Court (in Alabama) against the executor for all the assets in his hands unaccounted for in favor of the heir of the testatator. it was held that as long as said judgment remained unreversedand unimpeached on the ground of fraud it was conclusive against suits by creditors against the executor.
    A will which declared that alt the just debts of the testator should be paid by the executor, and which appointed a certain person ’• trustee as well as executor,” was held not to create such a continuing trust in tlie hands of the executor in favor of creditors of the testator as would wilndraw claims from the operation of the statute of limitations.
    Appeal from Harrison. Tills suit was brought by Cater, as administrator of Shepley, against Parker, the appellant. In the petition it was alleged that one Lyle was appointed administrator of Shepley on the 5th day of December, A. I). 1842. by (lie Orphans’ Court of Autauga county, in the State of Alabama; that on the 25th day of October, 1850, tlie petitioner was appointed administrator of the said Shepley, by the Probate Court of Harrison county in this State, as auxiliary to the administration .granted in Alabama on the said estate; that on the 31-4 day of July, 1854. Marinan Simmons became indebted to the said Shepley in a sum of money for work and labor; that in 1834 Shepley commenced suit in Montgomery comity Circuit Court, in the State of Alabama, against Simmons on the aforesaid indebtedness; that Simmons died in 1836, leaving a will, in which he bequeathed that all his just debts should he paid by his executor, and appointing the defendant in this petition his “trustee asweil as executor,” who was duly qualified as executor at the February Term, 1838, of the Orphans’ Court of Coosa county; that oil the 8th of Jnly.'lS4G, tlie suit of Shepley against Simmons being still pending, Parker was made a party thereto as the executor of Simmons, on which suit judgment was reti-dered against the said Parker on tiie 8th of March, 1S42, on which an execution was sued against the property of said Simmons in the hands of his executor, which execution was returned, no property; that in February, 383S, Parker, as executor of Simmons, received into his possession slave property, notes, accounts, and choses in action, and lands to a large amount, belonging to the estate of his testator; that Parker absconded in March, 1842, without having paid the said judgment debt due to Shcploy; that on the 7th April, 1842, the letters testamentary to Parker were revoked by tiie Orphan’s Court, and-Graham appointed administrator by the court; that Andrew Lyle was appointed by the said Orphans’ Court administrator of the said estate 5th February, 1844; that on the 20th October, 1845, after notice to Parker by iwblication, the Orphans’ Court of Coosa county rendered a judgment against Parker on an account stated for $5,400 70-100, being the amount of the assets of tiie estate of Simmons that came into his hands and not accounted for by hint. The judgment of the court was as follows, on tiie distribution of tiie said sum: “And it is further ordered that the said Parker, executor as aforesaid, proceed to make payment and distribution of the said sum of five thousand four hundred and six 70-100 dollars, to the persons entitled to the same, viz, to Eugene Simmons the sum of live thousand four hundred and six 70-100 dollars, which is hereby assessed and decreed as his portion of said estate in said Parker's hands, and which the said Ashley Parker, executor as aforesaid, is decreed to pay over to him, the said Eugene Simmons, for which execution may issue. And it is further ordered that executor as aforesaid pay to the officers of this court fifty-four 02-100 dollars, their costs, the same being for judge’s, clerk’s, and printer's fees, which said allowance was made in the account stated by Hie court on the 1st day of September, 1S45, to said executor, but. was not paid said executor, and for which execution may issue.”
    Tiie whole of the proceedings of the Orphans’ Court of Coosa county in tiie State of Alabama was' made a part of the petition, and the plaintiff prayed judgment against the said Parker for the amount of the judgment debt of Shepley against Parker as executor of Simmons.
    Tiie appellant, as defendant in the court below, demurred and pleaded several matters as answers, and among others that lie liad paid and satisfied tiie judgment of the. Orphans’ Court of Coosa county against him and tiie statute of limitations. Several of these pleas were stricken out by the court on the instance of the plaintiff. And on the trial the court rejected the evidence by tiie defendant- to prove payment of the judgment of the Orphans’ Court of Coosa comity. There was a verdict of the jury and judgment for tiie amount of the debt, with interest and costs, against the defendant.
    
      C. II. Adams, for appellant.
    The judgment of the court in overruling tiie defendant’s demurrer must proceed. as (lie only possible hypothesis, upon the, grounds that the defendant was trustee by the terms of tiie will, and that the statute of limitations did not run against, the claim of plaintiff's intestate, or that if it had begun to run the acceptance of the trust stopped it. Now, by reference to the will it will lie seen that Parker was appointed executor and charged with the payment of the debts, and that lie was also constituted trustee for purposes concerning tiie property of tiie heir, Eugene Simmons. lint I care not for this; if he became executor, lie ivas trustee for the creditors, hut only as any executor under ordinary circumstances. To say an executor could not plead prescription would be to repeal our own statutes and overthrow the decisions of our own and all courts of justice. It lias been made the duty of our judges, where suit lias been instituted against an executor or any one having charge of the estate of a deceased person upon open account, upon their own motion to strike from the petition any item which appears to have been of more than two years’ ■standing. In the case of Many, Adm’r, v. Mason, Adm’r, 8 vol. Porter’s Reports, it is said by the learned judge, whenever the subject-matter of a trust can be sued for at law, the statute of limitation may be insisted on as a bar, although the remedy is in a court of equity. Lord Meclesfield, in the case of Locky®. Tolky, said, when one receives the profits of an infant’s estate, and six years after his coming of age he brings a bill for an account, that the statute of limitation is a bar to such suit, as it would be to an action at common law. (Id., 319.) In this suit an effort is made, in effect, to collect a debt out ■ of the estate of Simmons which has been due for more than sixteen years. It is no answer to say that the judgmeut, if recovered, would be against Parker personally, for if the debt were not due and owing and subject to be satisfied out of the chattels of the estate of Simmons, no judgment should be recovered of Parker. The very gist of the action is that lie is liable to pay because lie has assets in charge of the estate of Simmons. How if this be true, then Parker, if he have this judgment to pay, must be entitled to a credit for the amount in settling with the creditors and heir of M. Simmons; and it would follow as a necessary consequence that the creditors and heir cannot interpose the statute of limitation against the recovery of a demand against an estate as against which the one has a valid subsisting demand and of which the other is entitled to the residue after payment of all just debts. But it is an acknowledged principle that the statute of limitations is not for the personal eonven-iencies of the administrator or executor but for the benefit of the estate and for those interested in it, and that the executor is bound to plead it. (Vide Angelí Lim., 1G7.) It cannot alter the principle that the executor has settled with the proper authority and been discharged. He still holds the assets (if he have any in his possession) as trustee for the purposes under the will, and yet a legatee will be barred by the statute in respect of a sum of money ■charged to be due from the executor at the time of the settlement if lie do not institute his suit within the time prescribed by the statute. (Vide Angelí, 173.) By parity of reason, likewise a creditor would be barred.
    But if it were true that the relation of trustee and cestui que trust precludes the defendant any benefit of his exceptions by demurrer, the principal ought not to be applied in this cause, for the petitioner avers that Parker was displaced as executor Anno Domini 1842 by the proper authority in the State of Alabama, and that other persons were afterwards appointed to execute the trust imposed by the will, and that Anno Domini 1842 the defendant removed from the State of Alabama to the State of Texas, bringing with him, clandestinely and fraudulently, the assets of the estate or wasting them. What stronger language could be used to indicate a conversion of the assets? An adverse holding? It will be seen that the most confidential relations may be disturbed, and that when such Is the case the statute begins to run.
    
      W. TV. Morris, for appellee.
    I. The remaining pleas and exception present the statute of limitations in various forms, and this brings us to the main question, to wit, does the petition present a cause of action affected by the statute of limitations? and this question properly arises under the exception to the petition. Is it such a trust' under the showing as will be protected by this court ? To determine this question we must look to the foundation of the trust. The will of Maturan Simmons reads thus: “It is my will that all my just debts be paid and discharged by my executor hereinafter named.”
    “I do by these preseuts constitute and appoint said Dr. Ashley Parker trustee as well as executor,” &e. ' The petition and exhibits show such a trust as not to be affected by the statute of limitations. (Angelí on Lim., 1G3, see. •3; Id., 162, see. 2; Id., 161, sec. 1; Id., 507, sec. 1, note 2.) Parker voluntarily accepted the trust.
    “ The whole jurisdiction of courts of equity in the administration of assets is founded on the principle that it is the duty of the court to enforce the execution of trusts, and that the executor or administrator who has the property in his hands is bound to apply that property to the payment of debts- and legacies. * * * So that the sole ground on which the court of equity proceeds in cases of this kind is to bo deemed the execution of a trust.” (1 Story Eq., sees. 532, 533, 534, 535, 599.)
    A creditor may directly sue a removed administrator; he is a trustee for creditors. (9 Ala. R., 723; 4 Port. R., 367.)
    Again, the proceedings of the Orphans’ Court out of view, it is sufficient for ns that he obtained the property under the trust. The only questions are, Did he possess himself of the property under the will ? Is the debt a valid one ? Is it unpaid? Can he, after seizure of the property, abandoning the country, making no showing of the disposition of the property, now claim the protection of this court ?
    The assignment of error that the estate of Simmons should be administered according to the law of Texas, if it means that the Orphans’ Court has exclusive jurisdiction cannot be maintained in matters of administration. A court of equity (i. e., the District Court) has concurrent jurisdiction and, in fact, exclusive jurisdiction, in this case. ■ How can tlie Orphans’ Court enforce the trust? (1 Story Eq., p. 593, secs. 530, 532.) The technical objection that the judgment is against Parker, executor, instead of Parker, administrator, is believed to be too light to change the current.
    The petition avers that the judgment was rendered against Parker as executor by the description of administrator, and this court will intend that tlie fact was found by the jury, and the general objection to the transcript will not avail the defendan t; he should have stated the particular objection, even if available.
    It will be seen that the trauscripts are regular and properly certified, and the defendant with his objections cannot go behind the certificate, nor can be attack the transcripts except by plea of nul tiel record.
    II. The petition shows that this suit is not predicated on the judgment, bnt it is merely incidental, the grievance of the action being the original demand. The judgment was read in evidence solely for the purpose'of proving the amount of the debt, and was competent for that purpose as a solemn admission of record of tlie amount of tlie debt. (1 Greenl. Ev., secs. 27, 205, 527.) Judgment inducement of cause of action. (Lambeth v. Turner, 1 Tex. R., 364.)
    The trust is not impaired by the merger of the cause of action into judgment; the debt is of a more solemn and definite character, but the character of the trust remains unchanged. (Lambeth v. Turner, 1 'Tex. R., 364.)
    HI. Tlie court properly refused to hear testimony to the jury that Parker had paid tlie decree of the Orphans’ Court of Coosa county, Alabama, in favor of Eugene Simmons, the legatee. That has nothing to do with the question. Parker should have settled with said court, paid plaintiff's debt, and had it allowed. lie chose to abandon the country with the property and leave the court to an ex parte statement of his account. It is now too late for him to set up such payment; a payment of the legacy to a legatee Is not a payment to plaintiff. The plea alleging payment of both judgments is too vague and uncertain. Resides, the jury passed on the fact; it was'in issue by the pleading.
   Lipscomb, J.

From the conclusion we have arrived at on an examination of the record it will not be necessary to notice many of the points discussed by the counsel in their arguments, and we will confine ourselves mainly to the-general demurrer of the defendant in the court below, as we believe that to he decisive of tlie case.

Tlie plaintiff in the court below has made the whole proceedings of the Orphans’ Court of Coosa county, in the State of Alabama, in the matter of tlie estate of Maturan Simmons, of which Parker, tlie defendant, was executor, a part of his petition. And the ground on which he attempts to sustain his right of action is that the assets in the hands of the executor, not accounted for by him with the Orphans’ Court, forms a trust fund for the benefit of a creditor, such as he represents and contends the plaintiff to be, and that this is a continued trust out of which he is entitled to satisfaction. Now, if we were to admit that it was a continued trust until applied 'to the object of the trust, (which, however, we do not admit,) the record shows that this trust fund has been adjudicated upon and adjudged to Eugene Simmons, the son and heir of-Matnran Simmons, and execution for the whole amount awarded to him, and that the execution actually issued. That judgment has not been impeached ; so far from it, the petitioner sets it up himself, and so loug as it remains unreversed it is conclusive of the subject-matter on which it acted. On what was this judgment founded? The petitioner shows himself that it was on an account struck with the executor, and that it was for the whole amount of the assets in the executor’s hands. If, then, it had been a continued trust, as contended for by the plaintiff in the court below, the whole amount had been adjudged to Eugene Simmons, and he was the only party in interest to pursue that trust for his benefit. But it is very clear that that judgment closed the trust and merged the trust in the judgment against the executor, which could be satisfied out of the goods, lands, and tenements of the executor. The plaintiff in the court below, therefore, shows by his petition that lie had no right of action, and this objection to his suit ought to have been sustained on the defendant’s demurrer, on which the defendant was entitled to a judgment in his favor. The objection would have been fatal to the suit, whether presented by demurrer, by motion in arrest of judgment, or on error in this court.

Again, the plaintiff in the court below shows that his original cause of action in favor of his iutestate was for work and labor, and was therefore an open account. This was the cause of action on which his iutestate obtained judgment against the executor of Maturan Simmons in the Circuit Court of Montgomery county, in the State of Alabama. This judgment-, it is seen, was rendered at the March Term, 1842, and a suit on it was barred at the commencement of the suit, under the 5th section of the act of Congress of Texas, passed 28th of June, A. D. 1845, (see Hart. Dig., art. 2399; and Robinson v. Payton, 4 Tex. R., 276; and Moore v. Hendrick and Pryor v. Moore, decided at this term,) and therefore could not bo the ground in all nor in part of the plaintiff’s right of action.

But it is here insisted that the suit is not founded on this judgment; that the judgment is only used as evidence of the amount of the debt. It is true that the suit is not an action of debt founded on a foreign judgment, nor is any such action known to the laws of our forum, but it is treated in the petition as one of the grounds in support of the action, and it was so treated by the court below, else it never would have been ruled to be conclusive evidence, of itself, of the indebtedness. If, however, it were conceded that the suit was on the original consideration, and it was further conceded that the plaintiff had a right to pursue this fund as a trust fund in the hands of the defendant, still it would not relieve him from the necessity, before he could have such satisfaction, of proving the original consideration, and this consideration would have to be proven independent of and unaided by the foreign judgment; and he would then be met by auother provision of the statute of limitations, requiring the suit to be brought within two years after the cause of action accrued, (see Hart. Dig., art. 2377,) and would present an insurmountable obstacle to his right of action. The suit on which the judgment was rendered in the District Court of Montgomery county was commenced on the 31st day of July, A. D. 1843; the cause of action must have occurred before that date. The plaintiff below has referred us to the case of Lambeth v. Turner, 1 Tex. R., 364. That case was not like the present. In that, the judgment of the court of Mississippi was mentioned in a prosy and somewhat tedious narration of the history of the case, and was not relied on as any part of the ground of action nor as forming any part of the evidence in its support. The original cause of action was not attempted to be proven by it, and if it had been entirely stricken out a good cause of action would still be shown in the petition; and we therefore ruled that the demurrer lo the petition ought to have been overruled.

Wo believe that on the two grounds noticed the judgment of the court below ought, to have been for the defendant; the judgment is therefore reversed and tlié came dismissed.

■ Reversed and dismissed.  