
    OCTOBER TERM, 1785.
    William Ward against Hezekiah Reeder.
    THIS was an appeal from Charles County Court. It was an action of replevin brought in the County Court by the appellee against the appellant for a negro man named Jacob. Pleas. Property, and actio non accrevit infra tres annos. General replications and issue joined. Verdict for the appellee.
    At the trial of the cause in the County Court, two bills of exceptions were taken. The facts stated in the first bill of exceptions are also set forth in the second., which is as follows :
    In the trial of this cause the plaintiff gave in evidence from the repeated declarations of Hester Harrison, who is now deceased, and under whom the defendant claims, that a certain Thomas Smallwood being possessed as in his own right, of a negro girl slave called Judah, gave and delivered the same to his daughter Hester Harrison, in the life-time of her husband Richard Harrison.
    
    , The plaintiff also gave in evidence, that the said negro girl was carried home to the said Richard Harrison, and remained in his possession till the time of his death, which happened on the 28th of Marchr 1734. That the said Richard Harrison being in possession of the said negro, by his last will and testament, bearing date the 25th March, 1733 — 4, in due form of law executed and proved, devised the said negro girl and her increase, to his two daughters, Mary and Elizabeth, and to the survivor of them; and by the said will constituted and ap-. pointed Hester Harrison, his wife, sole executrix of his will, and died shortly after making the said will. That. Hester Harrison shortly after took upon herself the execution of the will, took out letters testamentary thereon, and appraised the personal estate of said Richard Harrison, amounting in the whole to the sum of 121/. 16i. 6d. current money, and among other things inventoried and appraised the said negro girl called Judah, to the sum of 12/. current money in the said estate, and soon after returned the said inventory to the their deputy commissary of Charles county, and kept the possession of the said negro as executrix under the said will. That at the time of making the said will, the said Mary and Elizabeth, daughters of the said Richard and Hester Harrison, were infants: Mary about the age of three years, and Elizabeth about the age of one year, and lived and resided with their mother until their respective marriages. That Mary intermarried with a certain Richard Robins Reeder, about the 15th June, 1752, and Elizabeth with a certain William Elgin, about the 15th September, 1753. That frequently between the death of Richard 
      
      Harrison and the marriage of Elizabeth, Hester Harrison acknowledged and declared that negro Judah and her increase, belonged to her daughters, according to the will of their father, and never set up any claim in her own right to the negroes or any of them, until her daughter Elizabeth was married; shortly after which time, she perused her father Thomas Smallwood'1s will, which was produced in evidence, and is dated the 14th of April, 1/34, by which he devised as follows s Item, I give unto my daughter Hester Harrison, one negro girl now in her possession, called Judah.” That said Smallwood died on the 4th of May, 1/34, and that the said negro girl was not inventoried nor appraised as part of his estate. It appeared also in evidence, that the said Hester Harrison, having the said negro Judah and her increase in her possession, did, after the marriage of her daughter with Elgin, and the sight and perusal of her father’s will, finding the same, as she said, was dated subsequent to her husband’s death, claim the same as her property in virtue of her father’s will.
    That in or about the year 1/54, the said Richard Robins Reeder and William Elgin, took counsel upon tlieir right to the said negro and her increase, and proposed to sue for the same. That there was no legal demand made by the said Reeder and Elgin, or either of them, of the said negro and her increase. But the said Hester claimed them as her own, and declared to the said Reeder and Elgin that she would not give them up. That no suit or action at law was brought by the said Reeder and Elgin, or either of them. That the said Hester always claimed the said negroes as her own, under the will of her father, from the time the said Reeder and Elgin took counsel as aforesaid, and from the time that she saw and perused the will of her father, and never after the said Reeder and Elgin took counsel, and after she saw and perused the will of her father, acknowledged the right of said Reeder and Elgin, or either of them,, to the said negroes, and was in quiet possession of, and used the same, until the time of her death, which was about the 19th of August, 1776, and gave a negro named Tom, one of the increase of the said Judah, to her son Richard Harrison, who was in quiet possession of him till the time of his death, and devised him by his will, dated the 11th December, 1771, to Hester Harrison aforesaid.
    That negro Jacob, for the recovery of whom the present suit is brought, was one of the increase of Judah, and was born about the 1st of October, 1749, and always remained in the possession of Hester Harrison until her death, and was claimed by her under the will of her father, after the marriage of her daughter with Elgin, and after she saw and perused her father’s will. That she devised negro Jacob 'to Thomas Harrison her son, and appointed Richard Robins Reeder her sole executor, and died about the 9th of August, 1776. That the said Reeder, soon after the death of said Hester, about the 1st January, 1777, took upon himself the execution of the will, and got possession of the said negro Jacob in eonsequence of his being executor, and inventoried and appraised the said negro and all the other negroes the increase of the said Judah, and also the said Judah, in the possession of the said Hester at the'Time of her death, as in the estate of the said Hester, and shortly after returned the inventory to the then commissary of Charles county. That Elizabeth the wife of Elgin died some time before the said Hester, and that her husband survived her. That the said Reeder, after having obtained the possession of negro Jacob, and the other increase of Judah, as executor of said Hester, claimed them as his own under the will of Richard Harrison, and retained dispossession of them until some time about 1st of April, 1779. That Hezc-
      
      Uah Reeder the plaintiff, claims the said negro in virtue of a deed of division and mutual releases between the said Elgin and the said Richard Robins Reeder, of Judah and her increase, in which the said Jacob is released to the said Richard Robins Reeder, and severed as part of his share of the negroes. And in virtue of a deed from Richard R. Reeder and Mary his wife, to Hezekiah Reeder the plaintiff their son, transferring the said Jacob to the said Hezekiah.
    
    That the said William Ward the defendant, some time in the year lff8, was duly appointed and admitted by the Orphans’ Court for Chai les county, guardian to the said Thomas Hariison; and afterwards, about the 1st of April, 1779, the said negro Jacob accidentally came to his possession, and, as the guardian of the said Thomas, he retained them against the consent of the said Richard Reeder and Mary his wife, and the said IIeze= kiah who claims under them. That the said Richard and Alary are still living. That the said Hezekiah the plaintiff, demanded the said negro Jacob of the said William. Ward the defendant, on the 2d of April, 1779 ; and that, afterwards, on the 6th of April, 1779, the original writ in this causé was first sued.
    Upon the evidence in the first bill of exceptions, the defendant, by his counsel, prayed the Court to direct the Jury, that upon the evidence given of the said Hester Harrison perusing her father’s will, and making her claim upon the grounds declared by said Hester, no confession or declarations of said Hester before the time of her making her claim to the said negroes as her own, and while she had the care of her said children, and the possession of the said negroes for their use, undei the circumstances of being widow and executrix to the said Richard, was legal evidence against the defendant in this cause, because this evidence, as the counsel conceived, arose upon hearsay írom a person, who, at the time the declarations were made, considered her-» self interested in supporting the claim of the present plaintiff.
    
      But the Court were of opinion, and so directed the Jury, that such declarations and confession of the said Hester, under the circumstances aforesaid, were legal evidence against the defendant in this cause. The weight and influence of which evidence, under all circumstances and proof aforesaid given on the other side, to be considered by the Jury. To which opinion the defendant excepted.
    Upon the evidence stated in the second bill of exceptions, it w;as agreed by the counsel on both sides, that the Court should give the opinion and direction to the Jury, whether the act of limitations barred the plaintiff’s recovery ; and the counsel for the defendant thereupon prayed the Court’s direction to the Jury, that the plaintiff was barred by the act of limitations, from recovering the negro aforesaid, upon the evidence and case aforesaid.
    
      But the Court were of opinion,, and so directed the Jury, that the; act of limitations did not bar the plaintiff’s recovery; to which opinion the defendant excepted.
    The General Court reversed the judgment of the County Court. But whether upon both or only one of the exceptions, does not appear on the record.
    The appellee in the General Court, appealed to the: Court of Appeals j where, at May term, 1788, it Was argued.
    Cooke, for the appellant.
    
      First exception. The objection against admitting hearsay evidence, contrary to the common practice of the Courts in this State, hardly requires consideration. Such evidence is daily received in ejectment causes, to establish bounds, and often upon very slight grounds, but then the weight of it is left to the Jury. Buller, 289. 290. In a late case, it was even admitted to prove a forgery and stigmatize a deceased person. 3 Burr. 1244.
    
      Second exception. The gift and delivery of the negro, by Smallwood to Mrs. Harrison, in the life-time of her husband, undoubtedly vested the absolute property in him, and consequently he had a right to devise.
    The plaintiff claiming under the devise of Harrison, the act of limitations is no bar to a suit for a legacy. 1 Vern. 256. 11 Mod. 44. Pr. in Chan. 228. 2 Atk. 71. 178. The reason is obvious ; an executor is not bound to pay legacies until the debts are paid, and that may not happen for many years. It may be to the interest of all parties concerned, to permit an executor to keep the estate together, and apply the profits to that purpose, in preference to paying the claims by an immediate sale of the effects. No suit, therefore, will lie against an executor, for a legacy, until a demand first made, and the assent of the executor. By which assent the executor ad-t mits other assets sufficient to pay all debts. 2 Salk. 415. 1 Raym. 96. But there was. no demand in this case, until after the death of the executor, and just before the bringing of the action.
    Suppose the possession lawful; trover and conversion would not lie without a demand and refusal. 2 Bac. Abr. 686. Mrs. Harrison, it is stated, took possession of the negroes in virtue of the will of her deceased husband, and acknowledged, that by virtue of that will she held them as the property of her infant daughters. She was therefore the trustee and natural guardian of the daughters, and coming into possession of their property under the trust, the act of limitations will not operate, 2 Vent. 345. 2 P. Wms. 145. 1 Vez. 278. 3 Bac. Abr. 510. Vid. Gilb. Uses, 345. March. 129, 3 Ch. Rep. 8. 2 Freem. 156. 2 Raym. 1204.
    The law would be a constant shield to fraud, if it were otherwise. Who W'ould place confidence in another, more especially to take charge of infant children, if the possession thus confidently obtained, should be urged in bar to their remedy ? Children at all times will feel a repugnancy at going to law with their parents. They may wish, and perhaps did in this case, to indulge an aged and distressed mother with the use of the negroes during her life, rather than enter into a quarrel and ruinous contest with her. They never demanded the possession, and ought not, therefore, to have been compelled to bring suit against her.
    If Mrs. Harrison herself had been sued, she would probably have disdained to plead the act of limitations, but have placed her defence where it ought to rest, on the justice and legality of her title. An executor, neither,in law nor equity, can be compelled to plead the act of limitations. X Até. S26, If Mrs. Harrison, therefore, could not or would not avail herself of such plea, no one claiming under her can set up her possession to defend his own. 3 Até. 459.
    Whether the chattels of the wife, not recovered by the husband, survives to the wife. Co. Litt. 351. note 1. In trover, where the conversion was after the coverture, the husband and wife may join, or he may sue alone. 1 Com. Dig. 574. In this, case the conversion was after the marriage. The distributive share, if not recovered, survives. 1 Com. Dig. 556. The statute of limitations expressly excepts, the rights of feme coverts. See Co. Litt. 233, b.
    Stone, for the appellant.
    In this case the act of limitations never could bar. If it could, yet there is enough appearing on record to bring it within the exceptions of the act. But the act of limitations does not apply to this case. A legacy in possession of the executor or trustee is in trust for the'legatee. If a bill in the Court of Chancery would lie against a trustee, to compel a delivery of the legacy, the act of limitations will not attach,, A trustee or an executor cannot avail himself of the act •uf limitations. That a legacy is not barred by the statute. 2 Freem. 22. A legacy is not within the statute of limitations, and every executor is considered as a tfüsíee. 1 Vern. 256. 3 Atk. 96. 3 Bac. Abr. 483. A trust is not within the act of limitations. 3 Bac. Abr. 510. Can a case be found where the trustee can bar the equity, by setting up a claim in opposition to the trust ? It would be an encouragement to trustees, to obscure the title of cestui que trust, in violation of the confidence reposed in him. In this case, the trust was committed to the mother, and she declared she held the negro in trust for her children, who lived with her. No case can be found, where a trustee could devest himself of the relationship, and set up a tortious act to bar the right of cestui que trust by length of time. The doctrine respecting lands, does not always apply to personal things, and is never applicable to legacies. The act of limitations does not bar in equity, but is introduced there as a convenient rule. He does not recollect a case, where personal chattels have been possessed for upwards of six years, and the owner regains possession, that they can be recovered. Judges do not favour the act of limitations, but on the contrary, are astuti in working cases out of the statute. An acknowklgment of a debt will take it out of the act, and yet it is not within the exceptions in the act. So with many other cases of the like kind which the judges have taken out of the act of limitations, though not within the exceptions of the act,, The plea of limitations is not to be favoured, because it excludes the merits. 2 Wils. 254. The Court will not ?jy construction, extend the act of limitations to a case not expressly within the letter. 1 Raym. 28. Judges have restrained the operation of the statute as much as possible. An executor cannot discharge himself from, the trust by showing a violation of it. There is no evidence of the assent of the executrix, or demand, to warrant the bringing the action sooner. A, man roust have a complete right of action, or the act will not bar him. A demand is necessary to support an action of trover and conversion. 7 Mod. 99. Treat. Trov. and Conv. 6. Where the defendant comes lawfully by goods, a demand is necessary to support the action.
   The Court of Appeals

(at May term, 1789) gave the following opinion.

It is contended, in this cause, that from the time of the claim of Mrs. Harrison to hold under the will of her father Smallzvood, that it is an adversary holding, in, which case the statute of limitations will necessarily incur. Doubts might arise, as the legacy by such construction being out of possession, and the femes covert batons, viz. in 1754, whether the right might not survive to femes after the death of barons, if they survived, if the chattel was not reduced into possession; but upon this point we give no opinion, as we think Mrs. Harrison’s possession was by permission of the legatees, and not adversary, and that the doctrine of legacies stands upon a different footing, of that of actions intended to be barred, as they are common law actions.

An action grounded upon a statute, cannot be barred such as debt for an escape, &c. The recovery of a legacy, for a further reason, cannot be barred, because it may be stopped until debts be paid, and it would be uncertain when an action could be commenced.' But the Court, added to these reasons, ground themselves greatly on this, that the barons, after taking counsel, did not disturb the possession of Mrs. Harrison, but permitted her to use and occupy the chattels in order to keep up peace and harmony in the family between mother and daughters, and therefore made no demand. That it was not interrupted, appears from Mr. Reeder's being appointed executor to Mrs. Harrison, and although he had the chattels appraised, yet it could not destroy his right, which then came to him by possession, and of which right a man cannot be devested by any disclaimer, waiver or dereliction. It appearing, therefore, that there was a consent to use the negroes until Reeder’s executorship, and that the statute did not run, The Court are of opinion, the judgment of the General Court ought to be reversed, and that the County Court judgment be affirmed.  