#### MATURIN HERNDON *and others against*WM. N. PRATT *and others.*

An administrator *durante minoritaie*is liable for a *devastavit*to the executor, who qualifies after coming of ¿ge, and :f such executor abstain for ten years from bringing suit, his cause of action is presumed to have been satisfied released or abandoned. So that persons having a contingent interest in remainder, which is injured by such ’devastavit, must look to the executoi and not to the administrator *durante minoritate,*or the sureties on his administration bond.

No suit, in equity, can be brought to follow slaves, limited in contingent re» *328mainder, in the hands of one claiming a present defeasible interest, after the slaves have died; they having died in the life-time of the first taker.

Where slaves, limited in remainder on a contingency, were sold under an execution against one claiming a present, absolute interest, it was *held*that the purchaser under such execution, who took possession and held them for more than three years got a title by the statute, of limitations.

Where the statute of limitations is a bar to a trustee, it is also a bar to the *cestui gui*trust, for whom he holds the title.

Cause removed'from the Court of Equity of Orange county.

Joseph Dickson, of the county of Orange, died in the year 1834:, having made his last will and testament; among the bequests, in which will, is the following: “I give and bequeath to my respected friends, Hugh Waddell, Robert W. Dickson» and Priestly H. Mangum, attornies at law, and to the survivors of them', the executors and administrators of the survivor, in trust, one negro woman, named Coelia, one negro woman, Milly, one negro boy, named Harry, one boy, named Jack■son,"one negro fellow, named Davie, one negro boy, named_ Prinee, the land and premises where I now live, with all my stock, &c., to be applied to the maintenance and support of my daughter, Julia Neville Dickson, and my grandson, Robert William Dickson, until he arrives at mature age, in such manner and in such way as they, in their discretion, may deem most suitable to their circumstances, and it is my will and desire, that on the death of my daughter, Julia N. Dickson, the said trustee, or survivor of them, or the executors or administrators of the survivor of them, do give all my estate, hereby given to them, in trust, for the maintenance and support of my said daughter, Julia N. Dickson,- to my grandson, Robert Wm. Dickson, hereinbefore mentioned.” And by a codicil to said will, he bequeathed as follows : “ IfRobert Wm. Dickson should die before my daughter, Julia N. Dickson, then the property, I willed him, to go to my daughter, Mary M. Herndon, and at her death, to be equally divided between her children and Mary Ann Dickson and Caroline Dickson, now the wife of Joseph R. Marcom.” Hugh Waddell, P. H. Mangum, and the said Robert Wm. Dickson, were appointed *329executors" as well as trustees to this'will, of whom, the last mentioned, was under age at the time of the death of the testator, and the other two, Messrs. "Waddell and Mangum, renounced the office of executor, formally, and refused entirely to act as trustee ; whereupon, at May ''Term, 1834, of Orange County Court, the said Julia N. Dickson was appointed ad-ministratix, with the will annexed, during the minority of Robert W. Dickson ; but at February Term, 1836, of that county court, the latter having become of age, came into court and qualified as executor, under the will. The said Julia N. Dickson on being appointed, instead of giving a bond, conditioned to discharge the office of administratrix *&wm testamen- ■ to annexo cherante*mvnoritate, gave a bond as administratrix generally, and a printed form, applicable .to the latter office, was filled up by the clerk, through- a mistake, and executed •by her with'the defendants, "William N. Pratt and Anderson Clements, as her sureties, in the penal sum of $6000. The said Pratt and Clements, at the time of becoming such sureties, took a deed of trust from Julia Dickson, embracing most of the slaves, bequeathed as above, for their indemnity. The said Julia took, possession of the land, negroes and other property, amounting, in value, to $3000. Shortly afterwards, she married one Samuel Merritt, a very dissolute and wastéful man, and although he entered into marriage articles not to sell any of the property of his wife, without her consent and that of R. W. Dickson, he and she together -sold and wasted most of the personal estate ; several of the slaves and the land were levied on by executions against Merritt, and sold to divers persons, among which, a slave, by the name of Madison or Bob, was, in 1836, sold to the defendant, David George, who took the slave into possession and has held him adversely ever since. Two other slaves, Coelia and her child, Jim, and another slave, were sold about the same time, under an execution in like manner issuing against the said Samuel" Merritt, and bought by the defendant, John Hayes, who took the sheriif’s title to the same, and has held the possession ever since. Two other slaves, named Harry and Prince, were sold by Robert W. *330Dickson, the executor, after he qualified, to the defendant, •William N. Pratt, who took the same into his posession and held theta for several years, but both these slaves died in the life-time of the said Robert W. Dickson.'

The bill is filed by the*administrator of Mary M. Herndon and her children, and the administrator of Robert W. Dickson, and the administrator *de bonis non*of Joseph Dickson and Mary Ann Dickson and Caroline Dickson, alleging that Robert William Dickson died in the year 1853, leaving the said Julia N. Dickson-(now Merritt) surviving, and that by the said codicil, they are entitled to the whole of the said property, with its increase and profits, reserving to the said Julia N. Dickson a subsistence out of the same. They allege that Robert W. Dickson was a weak, drunken, stupid person, entirely incapable of managing property, and that he was a mere instrument in the hands of Merritt and his wife and William N. Pratt; that Pratt' encouraged these prodigal habits and dissipated courses in young Dickson, by furnishing him with ardent spirits, and he combined with the others to squander the property while it was in the hands of the administratrix *cum. tes. an.*and encouraged and stimulated Robert, the executor, to do the same after he qualified ; that in fact, Robert W. Dickson never interferred with the property after he qualified, but permitted' the said Julia and her husband, Merritt, with the concurrence of the two sureties, Pratt and Clements, to go on and sell and waste the property as they had been doing. The bill alleges that Hays and George were cognizant of all these doings, and that they purchased the slaves, alcove stated, with full notice of plaintiffs’ equity.— They allege that the processes, under which these sales took place, were merely pretended, in order to enable these purchasers to get the property in this way. They show that all the said property has gone out of the hands of the said Julia N. Merritt, and that her husband has left her, and both are insolvent :• that Robert W. Dickson died without any of the estate in his hands, and utterly insolvent. The prayer is to subject Pratt and Clements, the sureties of Julia N. *331Dickson, as if the bond had been taken as it was intended ; and to make them liable for all the property wasted by Merritt and his wife; also to follow the slaves, Harry and Prince, in the hands of Pratt, and the slave, Madison or Bob, in the hands of David George, and Ooelia and Jim and Coelia’s increase since the sale, in the hands of Hays.

Also, that an account may be taken under the direction of this court, of the whole of the trust fund, with the rents, hires and interest accrued, and that the same may be placed in the hands of a trustee, or in the hands of plaintiffs, on giving bond tó support Julia N. Merritt, during her life, and for general relief.

The answers of the defendants, deny all fraud and .combination, and insist upon the statute of presumption of satisfaction, and Hays and George plead and insist upon the statute of limitations.

The cause was set for hearing on bill, and amended bill, and answers, and proofs, and exhibits, and sent to this Court by consent.

*Graham*and *Norwood*for the plaintiff.

*J. N. Bryan*and Wmston, *Sr.,*for the defendants.

Pearson, C. J.

1st. The perishable property and the negro which was sold by the administratrix, with the will annexed, *durante minoritate:*

The bill seeks to charge Pratt and Clements, who were the sureties of the administratrix, on the ground, that the bond which they’executed, was, by mistake of the clerk, drawn in a way so as to be inoperative, but in equity, they are held liable to the same extent as they would have been liable at law, on the bond, had it been properly filled up, and the adminis-tratrix, *de bonis non eum*testamento, of the testator, charges the sureties of the administratrix, with a devastavit, and asks for an account of her administration.

Admit under the authority of *Armstead*v. *Bozeman,*1 Ired. Eq. 117, the liability of Pratt and Clements to the same ex*332tent as if the bond had been properly filled np, the administrator *de bonis*non, of the testator, meets with this difficulty: In 183 6, Nobert Dickson, one of the executors, attained his age of twenty-one, and qualified. This cause of action in equity, to hold the sureties of the administratrix, to an account for any devastavits during his minority, then accrued to him.— lie lived until 1853, seventeen years, during all of which time it was his duty, and interest to assert this equity.- ' Pratt and Clements were aware of their liabilities, as is proven by the fact of the deed of trust, which they took for their indemnity and yet they permit the slaves included in the trust, to be otherwise disposed of. These facts taken in connection with the article of agreement, executed between Merritt and his wife, and Nobert Dickson, the executor and trustee, of Joseph Dickson, seem sufficient to prove, as an open matter of fact, that the cause of action or equity of the executor, against the administratrix, *cum. tes. du/rante*minoritate, was satisfied. But suppose the proof should fall short, as an open question of fact,a presumption is raised by the statute law, after the lapse of ten years, that this equity, or cause of action in 'equity, has been satisfied, released or abandoned.

The reply made on the part of the plaintiffs, is not tenable, either as a matter of law, or by the proofs on the question of fact. The testator appointed Nobert Dickson one of his executors ; on arriving at age, he was entitled, and did qualify, as executor of his grandfather’s will. There was no ground on which' the county court could have refused to -permit him to qualify. He was a drunken, trifling young man, but there is no proof tending to show that he was an idiot; in fact there is no allegation to that effect, in the bill; and his being a weak-minded, imbicile young man, addicted to drink, did not authorise the county court to refuse to permit him to qualify, or at all events, does not authorise this Court to treat his appointment as a nullity, and on that ground, to'grant relief, as' if the estate of Joseph Dickson, had been without a representative, or person capable of suing in its behalf,, from 1836 up to the death of Nobert Dickson, in 1853.

*3332nd. The two negoes sold by the executor, Eobert Dickson to the defendant, Pratt:

The equity is put upon the ground of following’ the trust fund in the hands of a -purchaser with notice. Admit the equity, and waive any reference to the difference between a sale by an executor, and a sale by a trustee, it has so happened that in point of fact, this part of the trust fund, has become extinct by the act of God, both of the negroes having died in the life time of Eobert Dickson. So the contingent limitation over, did not vest at his death, bec'ause the subject-matter of the bequest was not, at that time, *m esse.*So this equity must fail; there being no allegation or proof that the deáth of these slaves, was caused, or in any way-hastened by the fact of their having been sold, and put into the possession of Pratt, by the executor. On the contrary, the proof is, that Pratt treated them as his own property, and took very good care of them. The claim of-the plaintiffs to *i\ie profits and hwes*of the two negroes sold to Pratt, accrued while the negroes lived, cannot be supported. The negroes belonged to Eobert Dickson, absolutely, subject to a limitation over,-after his death, to the plaintiffs; so Pratt had a good title during the life of Eobert Dickson, and consequently, was entitled to the profits and hires accruing before his title was defeated by the happening of the contingency on which the negroes were limited over ; which limitation over as we have seen, was prevented by the deaths of the negroes, before the 'happening of the contingency, and so the limitation over failed to take effect by the extinction of the subject of the bequest.

3. The negroes sold under an execution against Merritt and purchased by Hays and George :

This sale was made in 1836, since which time, Hays and George have been in the adverse possession of the negroes purchased by them respectively. Under the statute of limitations, this adverse possession gave them the title, not only against Eobert Dickson, but, also, against the persons entitled to the limitation over, for whom he held the title as trustee. The principle, that when the statute of limitations is a bar to *334the trustee, it is also a bar to the *cestui qid trust*for whom he holds the title, and whose right it is his duty to protect, is settled; *Wellborn*v. Finley, 7 Jones, 228. In delivering the opinion in that case, the principle was considered so plain that it was deemed unnecessary to cite authorities, and the Court was content to leave the question on the manifest *reason of the thi/ng.*Eor statutes of limitation and statutes giving title by adverse possession, would be of little or no effect, if their operation did not extend to *oestuis qui trust*as well as trustees who hold the title for them, and whose duty it is to protect tb,eir rights. If by reason of neglect on the part of the trustees, *oestuis qm trust*lose the trust fund, their remedy is against the trustees, and if they are irresponsible, it is the misfortune of the *oestuis qui*trust, growing out of the want of forethought on the part of the maker of the trust, under whom they claim. The question, however, having been discussed at the bar, we will now refer to Lewin on Trusts, 24 Law Lib. 306, and the cases there cited, which will warrant the conclusion that the doctrine is settled.

On the whole, we have arrived at the conclusion, that the persons entitled under the limitation over, have no remedy, except against the executor and 'trustee, Robert Dickson, who is dead — insolvent, and against whose representative no relief is prayed, and they must ascribe their disappointment, in losing the benefit which they expected to have realised, under the limitation, to the fact, that the two respectable and competent gentlemen, who were named by the testator as executors and trustees, in connection with his grandson, Robert Dikson, refused to qualify- as executors or act as trustees, in .consequence of which, Robert Dickson, on arriving at age, became the only executor and trustee and proved to be-incompetent and faithless.

The allegation of fraud and collusion on the part of Hays and George, with the executor and trustee, Robert Dickson, which is made in order to prevent the application of that statute, in respect to the plaintiffs’ claiming as *oestuis qui trust*¡under the limitation over, is nqt supported by the proofs.

Pee Oubiah, Bill dismissed with costs.