
    Tinnen, Guardian, v. Mebane.
    All implied and constructive trusts, all winch is cognizable at law, are subject to the bar of limitation, and equity applies the same limitation to equitable demands that is applied in analogous casos at law. Ic is only where the trust is the mere creature of equity, exclusively cognizable within that jurisdiction, and is a subsisting, continued, and acknowledged trust, that the statute has no operation. (Noto 43.)
    The doctrine that the trust must be exclusively within the jurisdiction of equity to save it from the statute has very little application in a system of .jurisprudence where there is no exclusive equity jurisdiction and where the statute applies to all subjects within its provisions, irrespective of whether they involve legal or equitable rights and whether they be cognizable at law or in equity.
    "The portion of the rule which requires the trust, not barable by time, to be subsisting, continued, and acknowledged, is of more universal application; and in all cases which come properly within the definition, and are not repugnant to either the express provisions or policy of the statute, there is no doubt that lapse of time would not be permitted to operate as u bar.
    ■But even this rule loses its force when tlie trust is repudiated by acts or words of the parties. When, for instance, tho trustee, in disregard of the cestui que trust, claims absolute ownership in himself, the latter will be barred by the statute of limitations and the rules in relation to the lapse of time in other similar cases. (Note 44.) «
    There is nothing in the laws of this State which would sanction negligence on the part of legatees or justify laches in the prosecution of a suit for specific legacy adversely claimed beyond the time limited for suits for the recovery of such property. (Note 4.5.)
    In order that the claim of a trustee should be adverse, so as to enable him to invoke the aid of the statute of limitations and its analogies, it is not, it seems, essential that tho cestui que trust should be informed of the existence of the trust or of his interest in the trust property. But see the particular circumstances of this ease.
    ".The statute of tin's State prescribes short periods generally for limitation; and where no provision of the statute is directly applicable, the limitation in analogous cases, if there be any such exptessly provided for by the statute, will be applied; and if tho matters in controver.-y he not analogous to any embraced in the statute, then ithe longest period of limitation known to our laws, which is ten years, will be the rule, oh the same principle that authorizes twenty years in other States, from analogies to their statute, to be prescribed as the limit.
    
      Error. George Mebanc, a resident of Williamson county, Tennessee, haying- made his last will, departed this life in 1818. líis will was proved and recorded in opon court., iu the said county, iu the same year, by Alexander Mebanc, his brother and executor. The will contained several bequests to the children of this Alexander, and among- others was one to his daughter Louisa, of a negro girl named Nancy. The property went into the possession of Alexander on the death of his brother George, the testator, and continued in the possession of Alexander until his death,' more than thirty years subsequent to the proof of the will; and on a partition of the said Alexander’s estate the girl Nancy, with her children, was treated as belonging to his succession, and was, on distribution, assigned to the present defendant. The daughter Louisa was about nine or ten years of age at the proof of the will; and in 1834, being then about twenty-live years of age, she intermarried with Lawrence W. Tinnen, and some time afLerwards removed to Texas. Iler fatlier subsequently also removed. Lawrence W.Tinnen died in 1S43, leaving his wife Louisa and the minor children (now suing by their guardian) surviving. Louisa, the wife, died in 1840; but before her death there was a partition .of her father’s estate, iu which she participated, and in which the girl Nancy and her children were treated as belonging to the estate of the father, Alexander, and, without objection on the part of said Lonisa, were assigned in distribution to the present defendant. This suit was instituted iu 1851, some two-years after the death of Lonisa and thirty-three years after the record of the will by the plaintiff as guardian of the children of Lawrence W. and Louisa Tinnen.
    The suit was brought for the recovery of the slave Nancy and her children, as being the property of the mother of the wards of the plaintiff, by virtue of the bequest to her in the will of the said George Mebanc, deceased. The plaintiff charged Alexander Mebanc with disregarding his trust as executor,, in failing and refusing to deliver the said negro girl to the said Louisa or the said Lawrence W„ but fraudulently kept her in his own possession, claiming her in his own right up to the day of his death, and concealed from the knowledge of the said Lawrence W. and the said Lonisa tlie existence of the said will. The defendant pleaded limitation and estoppel, in this, that after the death of Alexander Mebanc his heirs, including tlie said Louisa, agreed to divide his estate; that the negroes iu controversy were disposed of ás Bis part of the assets, so declared by all the heirs, including the said Louisa, who was present, assenting to the same, and that the defendant received the same with the assent of said Louisa, and that since the death of the said Louisa the division liad been ratified and confirmed by the present plaintiff.
    There was some controversy as to the submission of issues upon the facts to the jury, the refusal of the court to receive a general verdict for the defendant, which need not he detailed, as it will not form the subject of special comment. It resulted in the submission of such issues as admitted of a direct affirmative or negative response.
    The last issues, if severely scrutinized, might, perhaps, be obnoxious to some criticism, as not being, in some particulars, as favorable to the defendant as the pleadings on the part of the plaintiff would have authorized. One of the issues was whether the plaintiffs were the true and only heirs at law of Lawrence and Louisa Tinnen. This was consistent with the pleadings; but on tlie facts as alleged it was immaterial whether the plaintiff's were the only heirs at law of Lawrence W. Tinnen or not, except to show the authority of the plaintiff to bring- tlie suit. Their claim is through tlieir mother, and tlieir heirship through her was the material fact for inquiry. Fourteen issues were presented to the jm-y, which it is not necessary to recapitulate. The only fact found in addition to those stated, believed to be of much importance, was that Lonisa Mebaue was, through life, ignorant of the bequest in her favor under the will of her uncle, but that no fraud was used by her father, the executor-of the will, to conceal the fact from lier.
    On tlie special verdict judgment was rendered for tlie defendant.
    
      
      Jennings anti Milwee, for plaintiff in error.
    I. The general doctrine is nil-questionable that express trusts, as between trustees and cestui que trust, cannot be reached by the statutes of limitation. (Angelí on Lim., cap. 1G, secs. 1,2, <&c., p. 161, et seq.; Id., cap. 35, sec. 1, p. 507.) Executors and administrators not only belong to this class (of trustees,) but they are the most common instances of such trustees. (Id., cap. 1G, sec. 3, p. 163.)
    II. Where the trustee keeps the cestui que trust in ignorance of his right to the trust fund or property, or the latter in fact remains thus ignorant, this statute will never run against him. (Latter part of section last cited.) Even where actions at law against executors and administrators are barred by a statute of limitations, fraud and concealment take a case, out of such a statute. (Id., cap. 16, sec. 5, p. 167; Id., sec. 7, p. 1G9.)
    III. The rule that the statute will begin to run from the time a trustee repudiates llio trust applies only where the trustee sets up “a public adverse “claim against his cestui que trust,” and of course is repelled by the continued ignorance of the latter of his rights. (Id., cap. 16, sec. 9, p. 171.)
    IY. The devolution of the trust property on the executors or administrators of the trustee does not change its trust character, if from its nature it can be separated from the property “of the executor, &c., and does not set the statute in motion against the cestui que trust. (Id., cap. 16, sec. 12, p. 173.)
    Even an express statute law in favor of executors and administrators only reaches the demands of creditors, and docs not affect claims on specific property held by the deceased in trust for other persons. (Id., cap. 16, latter part of sec. 5, p. 168.)
    Y. I-Ieirs or distributees of the trustee are of course in no better situation when they receive the trust property than executors or administrators. Like tiie latter they are mere volunteers; they take only the property of their ancestors or his interest therein, and subject to all trusts to which it was subject in his hands, even general liens for the payment of debts, &c. ISTo change of the property from the hands of the trustee into those of third persons will “break the trust,” except into those of an innocent purchaser without notice. (1 Cruise. Dig., cap. 4, secs. 9,10, 12, 13,14, p. 487-8-9.)
    ' YI. “Estopped by the distribution, and Mrs. Tiimen’s being a party to it.” In regard to this alleged law of our rights, we have only to say that no man can be estopped by an act done in iguoranee of the facts constituting bis right to the properly, or even claim to it in reference to which the estoppel is set up, and especially one wlio is fraudulently kept ignorant by the party claiming the benefit of the estoppel.
    . We ask of the court here such a decree on the special verdict in favor of the plaintiffs a.-; the District Court should have rendered.
   Hempiiti.u, Ch. J.

The only question which arises in the case is, whether the right is barred by the lapse of time or the lairs of limitation.

This case presents some singular features and some facts irreconcilable. That the daughter, Louisa, a girl of nine years of age at the record of the will containing various bequests in favor of herself and brothers, and which was likely, therefore, to have become the subject of family conversation, having lived' until twenl.y-iive years of age before marriage, and having survived her coverture for four years, and having, during eleven years of her life, a husband wlio, prior to removal to Texas, had a strong interest in reducing this legacy into possession, as it would then become ills own, the will being'also publicly recorded in a county where tiie legatee and family resided for sixteen or seventeen years — that under such circumstances tiie daughter should have remained in ignorance of the bequest is altogether improbable. Unfortunately the fatlier, daughter, and husband are all dead, none survive to speak to the transaction, aud explain, in perhaps a few words, that which is now enveloped in obscurity.

Tiie written memorial, that is the will with its bequest, remains, hut the arrangements and dealings which may have taken place between the father and daughter, resulting in the retention by the former of the property, are buried in the darkness of the past.

It is not to bo presumed, prima facie, that the father would voluntarily rob his daughter of the testator’s bounty. His memory has been thus stigmatized, and the circumstances, under the clouds thrown over them by time, are somewhat suspicious; but it must be remembered that the grave cannot repel assaults upon character, however libelous or atrocious they may possibly be. The father, daughter, and husband lived many years together,, for aught that appears, without a murmur of discontent or breath of complaint against each other. More than thirty years after the bequest the fattier and ¿laughter, it may bo said, sunk into the tomb together, without a symptom of disaffection to mat the closing scene of their lives. Can it be believed that a father, so loved and so trusted as to have been appointed by the husband one of the guardians of the children now suing, could have, been for thirty years of his life practicing a fraud and dccepf ioii upon his daughter and the mother of these children? In the mystery which surrounds this affair, is it not much more reasonable to presume that, for some sufficient consideration, the daughter had relinquished her right in the property? An aged witness, in a deposition inserted in the record, explained the transaction, from conversations with Alexander Mebane, as follows, viz:

That the girl Haney was retained by the fattier in exchange for another which his daughter carried with her on removing to Texas. I refer to this, not as a fact having any bearing on the case, for it had none, and is not claimed to have bad any, but to show with what facility this transaction might be explained were the actors in it still living; how easily its difficulties' might be unraveled, and liow small a matter would demonstrate, beyond question, the truth of the fact that the daughter had information of the bequest, a fact which of itself lias every presumption in its favor.

But, without further observations which militate against the plain-_ tiff’s claim on the score of probabilities, let us examine some of the positions assumed in the able argument of the counsel for the appellant. The sum and substance of the grounds on which is sought the reversal of the judgment, are that trusts, as between trustees and cestui que trusts, cannot bo reached by statutes of limitations; that executors and administrators arc beyond the purview of the statute, and that ignorance of the legatee and fraud of the executor will prevent the statute from'operating as a bar.

The rule that trusts are not affected by statutes of limitation, was in the earlier cases very loosely expressed, and gave rise to erroneous decisions. Chancellor Kent, having been misled by them in the case of Carter v. Murray, (5 Johns. Chan. R., 522,) examined the subject very elaborately in the case of Kane v. Bloodgood, (7 Johns. Chan. R., 89,) and in a review of the eases laid down the rule that trusts not affected by statutes of limitation are those technical and continuing trusts not at all cognizable at law, but which fall within the peculiar and exclusive jurisdiction of courts of equity. (Id., 111.) All trusts which are cognizable at law are not withdrawn from the operation of the statute. Persons wiio receive money to be paid to another, or who misapply money placed in their 1 lands for a particular purpose, (.lie reciprocal rights and duties founded upon the various species of bailments, as between hirer and letter to hire, borrower and lender, depository and persons depositing, &c.,are cases of express and direct (rust; but, being cognizable at law. are within the reach of (.lie statute. The subject has been so much discussed that, in States where there is a separate chancery jurisdiction, and statutes of limitation are restricted to actions at law, the rule is of easy application. All implied and constructive trusts, all which are cognizable at law, are subject to the bar of limitation, and equity applies the same limitation to equitable demands that is applied in analogous cases at law. It is only where the trust is the mere creature of equity, exclusively cognizable within that jurisdiction, and is a subsisting, continued, and acknowledged trust, that the statute has no operation. It is more difficult in our system of procedure to apply the rule. The chancery and common-law jurisdiction are here blended. The doctrine that the trust must be exclusively within the jurisdiction of equity to save it from the statute has very little application in a system of jurisprudence where there is no exclusive equity jurisdiction, and where the statute applies to all subjects within its provisions, irrespective of whether they involve legal or equitable rights, and whether elsewhere they be cognizable at law or in equity. No doubt, with us, the statute extends to all eases in which it is admitted to be applicable in other common-law States. How much more it may embrace has not been delermined. That portion of the rule which requires the trust not barable, by (hue to be subsisting, continued, and acknowledged, is of more universal application, aud in all cases which come properly within the definition, and are not repugnant to either the express provisions or policy of the statute, there is no doubt that lapse of time would not be permitted to operate as a bar.

But oven (bis rule, loses its force when the trust is repudiated by acts or words of the parlies. When for instance, the trustee, in disregard of" the cestui que trust, claims absolute ownership in himself, the latter will he barred by tlie law of limita! ions and the rules in relation to the effect of tlie lapse of time in other similar cases. In this case the plaintiff charges that the executor, Alexander Mebane, refused to pay over the legacy, but kept aud retained the slave in his own possession, claiming her as his own properly dnring- the whole of his life. Had lie paid ibis legacy over during the infancy of his daughter it would have been to himself as her guardian. Ilis possession until she attained majority was not adverse. It was consistent with the right of Louisa, whether she be regarded in the capacity of a legatee or of a daughter. Slie attained majority eleven or 1 wolve years after tl'ie father had taken t-lie property into his possession in the capacity of an executor. His claim in his own right after that period became adverse. There is not shown to have been any debts against the estate of the testator; nor is there any pretense that there was anything which could have afforded a pretext to the executor to further retain the property in his trust capacity which would have operated the slightest impediment to its recovery by the legatee. On the plaintiff’s own showing the executor and father set np aud persisted in an adverse claim through life. The trust being thus repudiated it became, upon the authorities, immaterial whether a suit for tlie recovery of the, legacy was cognizable at law or in equity. In either jurisdiction it must have been prosecuted within the period allotted by law for the, recovery of this species of property; otherwise the claim would have been burred.

In England and in some of the States the time for the prosecution of suits for legacies has been specially prescribed. Formerly in England they were exempted from the operation of the statute on the ground of exclusive cognizance in equity, and on the further ground that the statute will not commence until a sufficient amount of assets he collected for the payment of debts and legacies, and it is impossible to pay when that will be. \Ve have seen that af'ler the adverse claim by tlie father it was immaterial, so far as the operation of the law of limitation is affected, whether the suit be cognizable at law or in equity. The effect would be the same on the rights of the daughter. In either case they would he forfeited by her laches.

On the. facts of this case there cannot be a pretense that the trust, after the daughter came of age, could be regarded as acknowledged, continued, and subsisting. All the trust purposes liad been accomplished, aud the trust itself was at an ead, especially when (he property was claimed adversely.

With respect to our own laws on the subject of recovery of legacies, the rule that they are not affected by the statute, and the grounds on which we have seem that; that rule is placed, can have but limited application. Administrations, under our law, are required to be vigorously prosecuted and speedily closed. The rights of creditors, legatees, and heirs are to be adjusted with all the promptitude consistent with the interest of parties interested in tlie succession. Under our former laws, viz, the laws of Spain, executors were required to execute the will of the testator within a twelve month at the furthest.

(White Recop., 197.) This policy was also the characteristic of the laws of Louisiana; aucl the same policy, with some relaxation, lias pervaded to the present time our laws relative to the settlement of the estates of deceased .persons. There is nothing in the laws of this State which would sanction negligence on the part of legatees, or justify laches in the prosecution of a suit ■for a specific legacy, adversely claimed, beyond the time limited for suits for the recovery of such property. Our present statute, while recognizing the prior right of creditors to satisfaction out of the assets, are not negligent of the .rights of legatees; and modes are prescribed for their prompt recognition and by to the probate court.

The fact, simply, that the daughter was ignorant of the bequest, is not sufficient to impede the operation of the statute. The jury find that the daughter was ignorant, but that there was no fraudulent concealment by the executor. This finding, under many circumstances which might be easily imagined, would ■be contradictory iq itself. As it stands, it cannot be taken to mean anything more than that there was no evidence that the deceased daughter knew auy-■thing of the legacy, nor was there any evidence that the executor attempted to conceal its existence. If she was in fact ignorant, (a supposition which is almost beyond the range of credibility.) her want of information is attributable, say the jury, to no fraudulent concealment on the part of the father. The facts of this ease repel the idea that there could have been any fraudulent or effectual concealment of the bequest. Tire will was publicly recorded, and an inventory was made and returned, and sales of property were effected under the will. The parties all lived for mauy years afterwards in the county where these acts were done; and the charge, under such circumstances, that the fact of the bequest was concealed by the executor is contradicted by the circumstances of the case. He not only did not suppress it, but, on the contrary, he proclaimed it to the world by the proof and record of the will. The legatee, and others interested in the will, had an opportunity of ascertaining its contents. If she neglected to avail herself of the means of information within her reach, it is her misfortune, and she’and her heirs must bear the loss. To permit ancient transactions and stale demands of more than thirty years standing to be reopened and litigated, on the pretense that (he claimant was ignorant of the facts on the public records of the county in which she resided for a great period of her life, would be dangerous in tire extreme. It would ■open the door to an infinity of frauds, and to interminable controversies and strife. There is no principle of policy or authority of law which would justify or countenance the pretensions of the plaintiff’.

■ The statute of this State prescribes short periods, generally, for limitation.; and where no provision of the statute is directly applicable, the limitation in analogous cases, if there be any such expressly provided for by the. statute, will bo applied; and if the matters in controversy be not analogous to any embraced in the statute, then the longest period of limitation known to our laws, which is ton years, will be the rule, on the same principle that authorizes twenty years in other States, from analogy to their statutes, to be prescribed as tiie limit.

The right to recover this legacy was barred in the lifetime of Louisa, as well before as after the partition of her father’s estate. The claim had been in existence for twenty years before the deatli of the executor; and there are no such circumstances in the case as to defeat the operation of the statute. Upon principles of policy, upon the authority of the law, and for aught that can now appear, upon consideration of sheer justice, we are of opinion that; the' .■judgment of the court below be sustained, aud it is ordered that the same be affirmed.

affirmed.

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