#### *Samuel Brockington and wife*v. *Wm. Camlin et al.*

Columbia,

May, 1850.

Where, on the appraisement and division of the estate of her former husband among his children, the wife of defendant retained and claimed certain slaves as her own, under a deed from her father, and the claim was acquiesced in by all parties, and the distributees gave receipts to the administrator for their several proportions of the estate, and the defendant and his wife retained undisputed possession of the slaves up to the period of her death, twelve years after the division, and the defendant himself continued in possession for three years longer — the Court sustained the plea of the statute of limitations interposed by the defendant to the claim of the distributees of his wife’s former husband, to have these slaves subjected to division among them.

Where the parties who are entitled to the fund or estate, have received it informally, and without an administration, and the same parties afterwards administer, or one for the rest, and set up a claim in their character as administrators for the fund or estate which they have already received, their claim will meet with no countenance or aid in this Court. And if, in a settlement based upon their equitable rights, they, supposing themselves not to need the instrumentality of a representative of the legal estate, have omitted something which ought or might have been included in the settlement, there is no reason why the statute of limitations should not run in favor of the party intended to be discharged, from tire time of the settlement, as in the case of any other settlement with trustees.

*Before*Dargan, Ch. *at Chambers, Williamsburg. May,*1849.

CIRCUIT DECREE.

Dargan, Ch. On the 4th day of April, 1793, Straud Conyers, of North Carolina, executed a deed, bearing that *190date, by which, in consideration of love, good will and affec-tjon^ ke conveyed to his two daughters, Elizabeth and Mary Conyers, a negro wench, named Clarinda, “ to have and to ¡101^ t[je saj¿ negro wench, and her increase, unto their heirs, and lawful issue of their bodies, as their proper use, without any manner of condition.” Indorsed upon the deed, is an acknowledgment, that Straud Conyers had delivered the negro to Joseph Thomas, for his daughters. This memorandum is subscribed by Conyers, and bears the same date with the deed. On the 3d of January, 1804, Elizabeth Conyers intermarried with John Arnett. They had bom to them the following children : — Mary Jane Arnett, bom 18th November, 1804; she died 14th November, 1811. James C. Arnett, born 4th July, 1806; he died 29th Oct. 1811. John A. Arnett, bom 11th October, 1808. Sarah M. Arnett, born 13th October, 1810. Eliza Elmira ArUett, born 23d of March, 1813. James Jaroe Arnett, born 7th October, 1815 ; he died 2d September, 1828. Eliza has intermarried with Samuel Brocking-ton, the complainant, and Sarah with David Nesmitte, one of the defendants.

In the year 1816. John Arnett died, leaving his widow, and his children, John, Sarah, James and Eliza, surviving him. Elizabeth Arnett, the widow, administered on his estate, and the negroes, Clarinda and her issue, (the subject matter of this controversy) were included in the appraisement, and were returned as part of John Arnett’s estate. In the year 1817 she intermarried with William Camlin, one of the defendants, who thus became administrator *jure mariti.*

But on the 8th May, 1824, he gave, with his wife, an administration bond to the Ordinary, subscribed by himself and wife as administrator and administratrix, and by Abner Brown and Asa Brown as sureties. Camlin and wife kept possession of the estate of John Arnett (including Clarinda and her issue) until the 4th February, 1834. At that time' there was a division, which was made by Wm. G. Flagler, D. R. McClary and J. J. Tisdale. There is no complaint that there was any part of the estate of John Arnett omitted in that division, except Clarinda and her issue. The persons who made the partition, preface their written statement of it, by the declaration that “ agreeable to the request of the parties concerned, we have proceeded to appraise and divide the following negroes, &c. belonging to the estate of John Arnett, deceased.” Then follows a statement and appraisement of four negroes, and a few other articles of personal property, of but little value. The negroes, Clarinda and her issue, constituting, if they belonged to John Arnett’s estate, a very large proportion of its value, are not included or alluded to. The total valuation in this division is $1460 50. -One-third of which ($486 83) is assigned to Mrs. Camlin, and one-third of the remainder ($324 55) is assigned to each *191of the surviving children of John Arnett. The share of James Jaroe Arnett is not represented or noticed, and th^ partition is made as if he had died before the testator, and never had any rights in the estate. This mode of proceeding varied the results somewhat from the legal rights of the parties, as his mother, in the division, got one-third instead of one-fourth of his share. It is not, however, of this that the complainants make complaint.

The division having been made, as above stated, each of the distributees, that is to say, David Nesmitte, in right of his wife, Sarah, Samuel Brockington, in right of his wife, Eliza, and Alexander Arnett, in his own right, executed to William Camlin a receipt, in the following words, to wit: — “ I do hereby acknowledge the receipt of the within named property of Mr. Wm. Camlin, mentioned in lot No. 2d. as being my full share of said property, certified by me, this 4th February, 1834.” The receipts were written upon the sheet that contained a statement of the appraisement and partition, and followed it; and were all of the same form, except in regard to the number of the several lots.

After the division, Wm. Camlin and his wife continued in possession of the negroes, Clarinda and her issue, to the period of the death of Mrs. Camlin, which occurred on the 16th September, 1846. After her death, Camlin still held possession of the negroes up to the present time.

The defendant, Camlin, now claims these negroes in his own right, and the complainants, Samuel Brockington and wife, have filed their bill for a partition of said negroes, as a part of the estate of John Arnett, deceased. They make Wm. Camlin a party defendant, on account of his administration of the estate of John Arnett, and of his being a party in interest; they make the other distributees of John Arnett, parties, to wit: — Alexander Arnett, and David Nesmitte and wife. They also make Wm. G. Flagler, Ordinary of Will-iamsburg district, a party defendant, charging him as being, *ex officio,*the legal representative of James Jaroe Arnett.

Alexander Arnett has entered a formal disclaimer to any portion of or right in the negroes, sought to be recovered, and releases whatever right, title or interest he may have, to William Camlin.

David Nesmitte and wife have filed a joint answer, in whieh they adopt the statements of the complainants, made in their bill, and insist upon their right to a partition of the said negroes.

The defendant, William Camlin, by a special plea, filed 31st. January, 1848, sets up the statute of limitations, in bar of the complainant’s claim. And having been required by an order to answer, passed at March Term, 1848, the said William Camlin, on 20th April, 1848, filed his answer; for *192the statements of which, I refer to a copy of the answer, ^ yyrn- G. Flagler has also filed his answer, in which'he admits himself to be the Ordinary of Williamsburg district, but that the complainants have any right to make him a. party to their bill, as administrator of the estate of Jamas Jaroe Arnett, in consequence simply of his being Ordinary of the district in which the said James Jaroe Arnett lived and died.

It would, perhaps, be as well for me at once to dispose oí the question, which is made on the construction of the Act of 1843, as to the right of the complainants to make the Ordinary a party, under circumstances like the present. I have heretofore adjudged that the Ordinary is not, under that Act, the legal representative of a derelict estate. It is unnecessary for me here to iterate my reasons for such a construction ; as my judgment, before alluded to, is now before the Court of Appeals. My opinion is, that Wm. G. Flagler, Ordinary of Williamsburg district, is not properly a party defendant to the complainant’s bill. It is, therefore, ordered and decreed, that the said bill, as to him, be dismissed, with costs. I will remark, in this connection, that David Nesmitte, subsequently to the filing of the complainant’s bill, has administered on the estates of James Jaroe Arnett and of Elizabeth Camlin, the deceased wife of the defendant, Wm. Camlin, and claims that representative character in his answer. He is not charged, however, and made a party as such, in the complainant’s bill; he having administered on both estates subsequently to the filing of the hill.

Having now made a preliminary statement of those matters necessary to the proper elucidation of the discussion which is to follow, I proceed to consider the questions which have been made in the pleadings and evidence. In the firs! place, did the negroes, Clarinda and her issue, belong to John Arnett at the time of his death? Had his marital rights attached upon the said negroes ? I do not think this question entirely free from difficulty. It will be remembered that Straud Conyers, by his deed, gave Clarinda to his two daughters, jointly. Were their interests ever separated formally? If so, at what time? Is Mary Conyers yet living? Did she ever marry? If she be dead, did she leave husband and children, or either? Did she leave collateral kindred besides Elizabeth Camlin ? When did she go to the west ? Was she ever heard from afterwards? If so, when was she last heard from ? How long before the death of John Ar-nett? When did Joseph Thomas deliver the negro, which Straud Conyers had delivered to him, “ in earn for his said daughters, to them or either of them?” A cloud of impener trabie darkness rests upon all these matters of fact.

All that I know is, that, at the death of John Arnett, these *193negroes were in his possession. And this I know, from the appraisement which his wife returned, as his administra- v tor, to the office of the Ordinary. All that I know of Mary Conyers is from the deed of her father, Straud Conyers, in which he gives to herself, and her sister, Elizabeth, a negro, jointly, and from the declarations of that sister, made at the division in 1834, (forty years afterwards.) The declarations of Mrs. Camlin, made in 1834, were, that her sister Mary had gone to the west, and she did not know what had become of her. When she went, to what part of the west, and under what circumstances, did not transpire. That Mary Conyers’s interest in the slaves had not been acquired by partition or purchase, we are well warranted in presuming. For, upon the occasion of the partition of the estate of John Arnett, when her own and absent sister’s rights to Clarinda’s issue were directly under discussion, she set up no such claim. The deed was produced, by which it was manifest that her absent sister (then living, so far as she knew,) was entitled to one-half of the negroes. It would have been most natural and reasonable, that she should then have advanced a claim to Mary Conyers’s share, by purchase, if such had been the fact. So far, there is nothing to induce the conclusion that there was any actual severance of the joint interests of the sisters, by partition or purchase. There are no circumstances under which, by presumption of law, Mary would be considered as dead, at the death of John Arnett. It does not appear how long before that time she had left the country; whether she had been absent long enough to raise the presumption of her death, or whether, if absent long enough, she had not been heard from within the period in which such a presumption arises. If Mary Conyers was still living, and entitled, at the death of John Arnett, to her moiety in the negroes, then, under the decision of the Court of Errors, in *Hyrne*v. *Verdier,*Arnett’s marital rights had not attached, and Mrs. Camlin’s interest in her undivided estate survived to her. And though presumptions of law, arising from absence and non-claim, were not strong enough in Ar-nett’s life to give his wife a perfect title, these presumptions might be sufficiently strong and conclusive to give her such a title, as the wife of Wm. Camlin, in 1846, when she died, and when thirty additional years had given strength and weight to the presumptions.

Twenty years exclusive possession by one joint tenant, or tenant in common, without any recognition of the right of the co-tenant, would, I suppose, give the tenant in possession a perfect and several right, on the presumption of a purchase or a partition. And if it had been shown that Elizabeth Arnett had been in the actual possession of the negroes from 1794 (the date - of the deed) to the time of her husband’s *194death, in 1816, and that Mary Conyers was, during all that ^ (jmej *su¿*jur{s; ^en the last mentioned presumption would have arisen in favor of Arnett’s title. But it does not appear when Joseph Thomas delivered possession of the negro or negroes; when Elizabeth’s possession commenced ; whether Mary was not an infant, and whether Mary was not, in fact, in possession herself, for a great portion of the time during which such presumptions could arise.

*1934 Strob. 403.

*194For these reasons, and from the circumstances commented on in the preceding observations, I should have come to the conclusion that there had been, at the death of Arnett, no severance of the estates of the sisters in these negroes, and no circumstances from which such a presumption could arise. I should have concluded, therefore, that his marital rights could not have attached, and that tírese negroes constituted no part-of his estate, but for one fact, which amidst the doubts and shadows which rest upon the subject, is to my mind conclusive. The fact to which 1 now allude is, that in the appraisement which Mrs. Arnett, as administra-trix, returned to the office of the Ordinary, she returned the negroes as the property of her intestate. I do not, of course, mean to say that such a fact would be conclusive under any and all circumstances, but simply that it is *prima fade*conclusive ; and in the total absence of all other proof on the subject, it must prevail.

In returning the negroes as the property of her deceased husband, she made an unequivocal admission against her own rights. Being at that time *sui juris,*and acquainted, as it may be supposed, with all the circumstances, she did this unequivocal act without reservation or qualification ; and she thus admitted that the marital rights of her deceased husband, John Arnett, had attached upon the property. And her subsequent husband, the present claimant, now adduces no evidence to rebut the force and effect of this admission, and to show that the marital rights of John Arnett had not attached. I have thus arrived at the conclusion, that the negroes, to a partition of which the complainants set up a claim in their bill, as a part of the estate of John Arnett, not heretofore divided, were, in fact, property of the said John Arnett, and, as such, subject to a partition among his distributees.

Considering the negroes in question as a part of the, estate of John Arnett, I come next to consider the effect of the statute of limitations, which the defendant,. William Camlin, sets up in bar of the complainants’s claim, and, as we have seen, of their legal rights. In considering this question, it will be necessary to look further into the testimony. The receipts of Brockington and Nesmitte are not releases, or receipts in full, but are simply acknowledgments of having received their full shares of the property embraced, in the valuation and partition *195then made. But it is undeniably true that the partition then made embraced all the property at that time, or since, admit- ( ted by Camlin and his wife to appertain to the estate of John Arnett. Whatever may be thought of her pretensions, Mrs. Camlin at that time denied that the negroes, who were the offspring of Clarinda, were the property of the estate of John Arnett, and asserted an independent claim to the said negroes in her own personal right. In this opinion as to her rights, she did not appear on that occasion to have been singular. D. R. McClary, who produced the deed of Straud Conyers, entertained the same opinion. He advised that she should not give up the negroes. The appraisers seem to have had similar views, as did also the distributees of John Arnett; for Alexander Arnett and Brockington and Nesmitte, and the wives of the two latter, were all present at the division. It appeared to have been the concurrent and honest opinion of all present, including the parties and their friends and advisers, upon an inspection of the deed, that Clarinda and issue were the property of Mrs. Camlin, independent of any right she might derive from the estate of John Arnett. For though it was known that Clarinda and her children were then present upon the plantation, none contended (so far as it appears) that they should be included in the partition. The persons who performed the friendly office of making the division were John J. Tisdale, Wm. G. Flagler and David R. McClary. The -first named, examined on the part of the complainant, says, “ Mrs. Camlin claimed the increase of a family of ne-groes, Clarinda and her increase, and would not let them be divided.” He states that a deed from her father, Straud Con-yers, was produced, giving the negroes to Mrs. Camlin and her sister Mary, who was not present; that Mrs. Camlin could not tell whether her sister was then alive, but she said that her sister had removed to the west; that David R. McClary produced the deed, and thought she ought not to give tip the property to be divided; that Mrs. Camlin claimed the property tinder this deed, and thought that they had no right to divide these negroes until after her death; that the parties now claiming were present at this discussion, and that the negroes were not divided. He further says that the negroes have been in possession of Camlin from the division to the present time. H. D. Shaw said, *“*that the Clarinda negroes have been in the possession of Mr. Camlin ever since his marriage, and have never been out of his possession.”

Wm. G. Flagler, one of the appraisers who divided the estate, was examined, and said “ some negroes were excluded from the division that had been in John Arnett’s possession. Some instrument of writing was produced, which prevented the division of those negroes.” He recognized the original deed of Straud Conyers as the instrument produced upon the *196occasion of the division, and said, “in consequence of the production of that deed, a portion of the property was set apart as the property of Mrs. Camlin.” He did not recollect wpel¡iei. j\jrSi Camlin objected or not, but he said that it was “in consequence of the production of the deed that only three or four negroes were divided. Mrs. Camlin was present. The impression of the -appraisers was, that it was Mrs. Camlin’s property under the deed.”

After the division there was a general impression prevailing that these negroes belonged to Mrs. Camlin, and not to her husband, Wm. Camlin. And in the belief that this was the .fact, several sheriffs, with executions against Camlin, fore-bore to levy upon the negroes; and his crediiors were unwilling to incur the risk of indemnifying. From 1834 to 1839 Camlin returned the negroes to the tax collectors as his wife’s property. From 1840, inclusive, to the present time, he has returned the negroes as his own.

Samuel Brockington was bom in 1816; David Nesmitte was of age at the time of the division. The bill was filed the 21st December, 1847. These are the material facts of the case, under which I am to decide upon the bar of the statute of limitations raised in the pleadings.

In a Court of law, the statute of limitations, when pleaded, and in a case to which it is applicable, is of peremptory obligation. In this Court it is not a bar, *juris*and *de jure.*Its obligation *here*is self-imposed. Its provisions do not extend to suits in equity. But though the statute does not absolutely bind Courts of Equity, yet those Courts, following the law, have adopted it as a rule, to guide them in the exercise of their discretion, and apply what is termed the equity of the statute in certain cases. If there be a strong equity against the rule prescribed in the statute, it is disallowed in this *Court.*It is allowed to prevail in all cases of constructive trusts, but is disallowed in those trusts that, in contra-distinction to such as are implied, are termed technical trusts. But if, in the case of a trust of the latter character, the trustee does an act which imports to be a termination of the trust; if he has a which is intended to be in full; if he settles as to Part> anc^ claims the residue in his own right; if he denies the trust in the presence of the *cestui que*trust, these acts, or any of them, will so far disturb and dissolve the strictly fidu-c^ar7 relations between the trustee and his *cestui que trust,*as that the statute of limitations will commence to run from the date of such acts. In *Moore*v. *Porcher,*Judge Nott says, “The statute will not bar a trust; but when the trust is executed the relation of trustee and *cestui que trust*is at an end. The confidence, which is said to be the essence of the trust, is determined; and every principle on which the statute of limitations is enforced by Courts of Equity, applies.” In *Ho-**197*venden*v. *Lord Annesly,*Lord Redesdale had remarked, “if a trustee is in possession and does not execute his trust, the( possession of the trustee is the possession of the *cestui*trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title. Judge Nott, in the case already cited, commenting on this passage, observes,2 *“*but if he does perform his trust, or does an act which purports and is understood to be a final performance, can it be said thenceforth that his possession is according to his title?”

*196Starke v. Starke, Carolina Law Journal 509; Moore v. Porcher, Bail. Eq. R. 198; Glover v. Lott, 1 Strob. Eq. 79.

*1972 Sch. & Lef 693.

We will proceed to apply these clearly settled principles to the case under judgment. The relations between the defendant, Camlin, and the complainants, were, in the inception of the trust, of the strictest fiduciary character. They so continued up to the period of the settlement in 1834. It is conclusively shown that in the settlement every article of property was intended to be included which was admitted to be of the estate of John Arnett. The complainants do not charge in their bill that any thing was omitted but the Clarinda ne-groes. That these negroes belonged to the estate of John Arnett, was denied by Camlin and his wife, and an independent claim to them was asserted in behalf of Mrs. Camlin, in her own personal right, under the deed of her father, Straud Conyers. In this claim there was an universal acquiescence. Can it be doubted that it was understood and believed by all the parties interested, that the trust in relation to the estate of John Arnett was then executed and terminated ?

What was the reasoning on which the parties and their friends arid advisers came to the conclusion that Clarinda. and her offspring did not belong to the estate of John Arnett, but was the independent property of Mrs. Arnett, does not appear. To my mind it is far from being clearly shown that the marital rights of John Arnett had attached upon this property; for it was not satisfactorily proved that at his death the joint estate of his widow and Mary Conyers did not still subsist. And if this was so, under the decision in *Hyrne*v. *Verdier,*his marital rights would not have attached, even upon his wife’s undivided moiety. I hardly suppose that these parties and their advisers discussed in their conclave the grave and vexed question upon which the opinions of the highest appellate tribunals in South Carolina have oscillated for upwards of thirty years past. But according to the most recently promulgated doctrine in relation to the vesting of the marital rights under circumstances like those that (so far as the proof goes,) existed at the death of John Arnett, the de-cisión upon the claim set up by Mrs. Camlin at the division was not far from being correct. And in that conclusion, as I have already intimated, I should have coincided, had not Mrs. Camlin returned Clarinda and her children to the Ordinary *198as the property of John Arnett. But even if it had been the clearest matter imaginable that these negroes did in fact belong to the estate of John Arnett, the claim set up to them by Mrs. Camlin, in her own right, and adversely to any right on the part of the intestate, and the settlement of every other portion of the estate, constitutes a case where the plea of the statute will be sustained. There is no countervailing equity, such as is recognized by this Court, to prevent the operation of the statute. It is true, as was argued, that when a trustee in the settlement practices a fraud, the statute will not protect him or run in his favor, except from the discovery of the fraud. But in this case there was no fraud, misrepresentation or concealment. There was no suppression of the truth or suggestion of a false state of facts. The complainants were possessed of all the information which Camlin and his wife possessed. The negroes were known to be present. The deed was produced, the sole title on which Mrs. Camlin’s claim was made to rest. All the parties reasoned upon the same, facts and came to the same conclusion. It is impossible to conceive of a more *bona fide*or honest error, if it was one. The complainants not only had an opportunity of exercising their own judgment, but of obtaining professional advice as to their rights.

Lowndes v. Chisolms, 2 McCord’s Ch. It. 455; Lau-rens v. Beau-bein, 2 Bail. L, 623; Hopkins v. Mazick, 1 Hill Ch. Rep 242.

And this brings me in a natural connection *to*consider another argument urged in behalf of the complainants. It was contended that the omission to include these negroes in the division was a mistake of law, and that this Court will relieve against mistakes of law, though it will not against errors resulting from *ignorance*of the law.

There are cases recognizing such a distinction. I will say, *en*passant, that this distinction is exceedingly subtle and • artificial. It is also vague and difficult of application in practice, without making each case to be governed by its own circumstances. I have never been satisfied with the reasoning upon which the distinction has been established. But to this case the distinction, such as it is, does not apply. If it does, ' there are but few cases of settlements where errors have been committed which cannot be opened on the ground of alleged errors of law.

But suppose that this distinction did apply, with all its force, to the case under judgment; suppose that the complainants did have a right to open the settlement, on the ground that, by mistake of law, Clarinda and her issue were not included in the division, would that prevent the currency of the statute of limitations ? Would a mistake of law, committed in a settlement, where the party aggrieved had all the facts laid before him, and that those facts were sufficient to lead him to a correct and just conclusion as to his rights; or supposing him incompetent to reason correctly, where he had *199the fullest opportunity to have sought illumination from the highest professional sources — would a mistake of law like this present such an equity as would induce this Court refuse to enforce the statute? If so, then how long will the party aggrieved, who is possessed of all the necessary information as to the facts, be allowed to make the science of law his study, so that he may be enabled to reason justly as to his rights ? Or being thus possessed of all the necessary data for a correct opinion, how long will he be allowed to lay those data before learned counsel, and to obtain the proper legal advice? I am of opinion that such a mistake as was committed in this case, if it was a mistake, and be it a mistake of law or of fact, and whether the complainants would have been, in consequence of it, entitled, in a proper time afterwards, to have opened the settlement or not, does not prevent the running of the statute in favor of the defendant.

Having arrived at this conclusion, the question occurs, are the complainants bound by the time that has elapsed before the filing of their bill? At the time of the division, which occurred 4th February, 1834, the complainant’s wife wanted a little less than two months of being 21 years old, she having been born the 23d March, 1813. But her age is unimportant, as her legal rights were at that time merged, as to this property, in those of her husband, Samuel Brockington. He was born, according to the testimony, in 1816, but "the day and month were not proved. At the time of the settlement in 1834, when he executed the receipt, he was eighteen years old, or thereabouts. In 1837, three years after the settlement, he attained his majority. In 1841 the statutory bar was complete. The complainants filed their bill on the 21st December, 1847,- so that more than thrice the period necessary for the discharge of the defendant, by operation of the statute, had run out before they instituted their suit. Sarah Nesmitte was born the 13th of October, 1810. She was, consequently,-between 23 and 24 years old at the date of the settlement. The age of her husband, David. Nesmitte, was not shown. But there was no pretence that he was not of full age when he executed his receipt.

Before I conclude, it will be proper for me to notice another view, urged in favor of the complainants. Among other matters testified to by John J. Tisdale, he said that Mrs. Gamlin “thought they had no right.to divide the negroes until after her death.” It is not said that she expressed herself in these words; but this, it is contended, is the implication. And hence, after implying that she used these words, it is inferred either that these negroes constituted a separate estate in her, or that it was an admission that, after her death, the negroes were to be divided, as a portion of the estate of John Arnett. There does appear to have existed a *200vague notion that she had an independent estate in the negroes> This was the general impression, and her husband seems to have paiticipated in this illusion, when, from 1834 [Q ^839, he returned the negroes as her property: but, in fact, there was no foundation for such a belief. There is not a tittle of proof that there ever was a separate estate. At the same time, this erroneous impression serves to explain why she supposed that the property, after her death, might be divided as her estate. Nor do I perceive any ground for inferring that the expression of Mrs. Camlin, which has been cited, was an admission that, after her death, and after she had enjoyed a life estate in them, the negroes were to be divided, as a portion of the estate of John Arnett. There was just as much reason for her claiming them in fee, as for life. And the evidence is full and conclusive that she claimed the negroes in her own independent right, and adversely to the title of her deceased husband.

It is ordered and decreed, Jhat the plea of the statute of limitations, filed by the defendant, Camlin, be sustained, and that the bill be dismissed with costs.

The complainants appealed from the decree of his Honor, Chancellor Dargan, dismissing the bill in this cause, on the following grounds:

1. Because it sufficiently appeared, from the pleadings and evidence in the cause, that Clarinda and her issue, forming a large portion of the estate of John Arnett at the tune of his death, were not included in the partial division made in 1834, and have never been accounted for by defendant, Camlin, who remained in possession of them, as administrator; and, therefore, complainants are now entitled to have an account of the said property against him, and to have their share delivered to them.

*2.*Because the complainants, being both infants at the time of the division, in 1834, and not entitled to receive their share of Arnett’s estate from the administrator, could give no receipt or release, nor do any act which would terminate the fiduciary relation, or bar or prejudice their rights in the premises.

3.- Because, whether the said property was omitted from mistake of law or fact, fraud or misrepresentation, in neither case can the defendant, Camlin, be allowed to take advantage of such *error;*nor can the statute of limitations have any application, but from the time that it appears that the mistake, fraud or misrepresentation was discovered by the complainants.

4. Because the division made in 1834, was confined to certain specified property; and the relation of trustee and *cestui que*trust, continuing as to the residue of Arnett’s estate, the statute can have no application.

*2015. Because the defendant, Camlin, having retained possession, with the understanding that the same was to be divided upon her death, his possession during her life could give him no title beyond such claim.

6. Because the estate of James Jaroe Arnett having never been previously represented, or the interest in the estate of his father accounted for by the defendant, Camlin, (the administrator of the estate,) and complainants being entitled to a distributive share of such estate, an account should have been ordered between the defendant, Camlin, and his co-defendant, Nesmitte. the administrator of James Jaroe Arnett, and the share of complainants in such estate ascertained and decreed to them.

7. Because it is, upon the whole case, inequitable to allow the defendant, Camlin, to retain the property of those whose interests he was bound by law to protect, in consequence of a transaction which was either fraudulent in the beginning, or which has been converted into an instrumeut of fraud by his subsequent conduct.

MITCHELL, *Complainants's Solicitor.*

The defendants, Nesmitte and wife, also appeal from the decree of his Honor, Chancellor Dargan, relying on all the grounds (except the 2d) taken on behalf of complainants, and submit that an account should have been decreed against their co-defendant, Camlin, either to this defendant, Nesmitte, or his co-defendant, Flagler, the Ordinary of the district.

MOSES, *Solicitor.*

Curia, *per*

Dargan, Ch.

The general reasoning of the decree, and its conclusions as to the rights of the parties, have met the approbation of this Court. I do not deem it necessary to enter into any further disquisition as to the questions of law and of fact, which I discussed in the circuit decree. There is one point, however, which, though made in the argument, and considered and adjudged by the Circuit Court, has not been discussed in that decree. It is to this point alone that I will address the observations which I now have to submit.

James Jaroe Arnett was one of the children of John Arnett. He was born on the 7th October, 1815, and he died on the 2d of September, 1828. He died before” he had quite attained his thirteenth year, and after the decease of his father. He was, consequently, one of the infant distributees of John Arnett’s estate. He died about six years before the settlement among the surviving distributees, which occurred on the 4th of February, 1834. There was no administration on his estate until after the filing of the complainant’s bill. It is contended that *he*was not a party to the settlement, *202having died before it was made; that his legal representative is not bound by the settlement; that his estate was not then represented, inasmuch as administration of his estate was granted afterwards; and that, therefore, the principles of law upon which thp rights of the living distributees who were parties to the settlement were made to turn in the decree, were not applicable to the claim set up in behalf of the estate of James Jaroe Arnett.

In reference to this branch of the case, it would be sufficient to say, that administration was granted to David Nes-mitte, after the commencement of this suit. And, although the complainants have made him a party defendant, as entitled, in right of his wife, to one of the distributive shares of the estate of John Arnett, they have not charged him in his representative character, as the administrator of James Jaroe Arnett. Nor has he, in his character as the legal representative of James Jaroe Arnett, filed any bill, or served any process, against Wm. Camlin, who is-at present in possession of the negroes, claiming them in his own right. This objection is fatal to any claim in that behalf, arising on these pleadings.

But this Court is of the opinion that the administrator of James Jaroe Arnett would not be entitled to recover upon the merits. The time that has elapsed from the date of his death to the trial was eighteen years. This is not sufficient to bar the claim on a presumption arising upon the lapse of time. The doctrine is, where the party who sets up the presumption, in support of his title, relies *solely*upon the lapse of time, nothing short of twenty years will be sufficient to raise such presumption. But a shorter period than twenty years has often been considered sufficient, where there were auxiliary and corroborative circumstances. I will not undertake to say that such circumstances exist in this case. But there is one fact that is manifest. In the division of the estate of John Arnett, which occurred on 4th February, 1834, the distributees of that estate, the defendant, David Nesmitte, who is the administrator of James Jaroe Arnett, being one of them, proceeded to divide the whole estate of John Arnett, then admitted to be such, including the shares of James Jaroe Arnett and other deceased distributees, and not deeming an administration necessary. They represented, though irregularly, the interests of James Jaroe Arnett in that settlement, and, disregarding the forms of law, divided his share of what was admitted to be the estate of John Arnett among them. They thus became executors in their own wrong. And now, for the purpose of obviating the effects of the settlement and partition, which was full and complete, so far as the defendant, Camlin, then or since has admitted, the parties to it have put forward one of their num*203ber to administer on the estate of James Jaroe Arnett. The statute of limitations, it is true, does not run until after nistration has been granted. This is the rule. But, where the parties, who are entitled to the fund or estate, have received it informally, and without an administration, and the same parties afterwards administer, or one for the rest, and set up a claimin their character as administrators for the fund or estate which they have already received, their claim would meet with no countenance or aid in this Court. And if, in a settlement based upon their equitable rights, they, supposing themselves not to need the instrumentality of a representative of the legal estate, have omitted something which ought or might have been included in the settlement, I do not perceive any reason why the statute should not run in favor of the party intended to be discharged, from the time of the settlement, as in the case of any other settlement with trustees. The only difference is that, in the one case, the settlement is made with a party seized of the legal estate in trust for others, and, in the second case, the settlement is made with the equitable and real owners themselves. I think the principle is equitable alike in both cases.

It is the opinion of this Court, that the administrator of James Jaroe Arnett stands in the same category with the other distributees of John Arnett, in regard to the claim which they set up in their bill, and that the bill was properly dismissed.

It is ordered and decreed that the circuit decree be affirmed, and the appeal be dismissed.

Johnston and Dunkin, CC., concurred.

*Decree affirmed.*