#### *G. Coleman and wife*v. *A. G. Davis et al.*

Columbia,

Nov. 1848.

Plaintiff, while an infant, executed a receipt as a discharge in full of a legacy, to which he was entitled in right of his wife, and when four years had elapsed after the attainment ofliis majority, filed his bill against the executors to have the receipt set aside, *held*that he was barred by the Statute of Limitations.

When an act is performed by a trustee purposting tobe an execution of his trust he is thenceforth to be regarded as standing at arms length from the *cestui que trust,*who is put to the assertion of his claims, at the hazard of being barred by the Statute of Limitations.

*Before*Caldwell, Ch. *at*Marion, *Febuary Sittings,*1848.

Caldwell, Ch. This was an original and amended bill, filed by the plaintiffs against A. G. Davis and Daniel H. Davis, *335the surviving executors of Joseph Davis Sr., and against the administrators and heirs of Benj. S. Davis, a deceased executor, for the recovery of a legacy, and to make nine negro slaves, Doll, Stephen, Lisett, Becky, Frank, John, Peggy, Aley and Sarah Ann, of whom it is alleged he died intestate, liable for the legacy. The testator made a last will and testament on the 12th February, 1832, in which there is the following clause: “I give and bequeath unto Mary and Elizabeth, (the plaintiff) daughters of Aley Whaley, one negro girl each, to be purchased by my sons herein before mentioned, the property of my sons herein before mentioned to be subject to the purchase and payment of the said legacies ; the said negroes to be of or about the age of the said Mary and Elizabeth severally, the one to Mary to be of or about her age, and the one to Elizabeth to be of or about her age, to them their heirs and assigns forever.” The testator died in 1833, and Abraham G. Davis and Benjamin S. Davis qualified as executors on the 11th of February, 1834, and took possession of his effects; but they did not purchase a negro girl between nine and ten years old (the age of the plaintiff Elizabeth) agreeably to the directions of the will. That the plaintiffs intermarried in 1837, and Griffin Coleman admits that he received various small sums of money from Huge P. Fladger, which amounted in the whole to $>125, and he executed a receipt, while he was an infant and unapprised of his rights, as a discharge in full .of the legacy to which he was entitled in right of his wife, in 1838 ; that he placed the most implicit confidence in the statements of Fladger, who told him that the $125, was the one half of the proceeds of Pat and Cain, two old negroes which were the only property given by the will subject to the payment of the legacies bequeathed to Elizabeth and Mary, and believing that he was not entitled to anything more, on account of the failure of assets, he executed the receipt. That at the time the legacy should have been paid, (twelve months after the decease of the testator,) a girl of the age of the plaintiff Elizabeth, would have been worth from $350 to $400. Plaintiffs insist they are entitled to either the value of the negro girl, at the time above mentioned, with legal interest, after deducting payments, or to be paid in specie, taking into consideration the loss of time. The bill further states that Benj. S. Davis, one of the executors, died in 1843, leaving the other two surviving, and that Julian Davis administered on his estate. The amended bill states that Joseph Davis Sr., died intestate as to nine negroes, and that after his death the executors took them into their possession and management, or Benjamin S. Davis took them into his possession and management with the' consent of the other executors, without the warrant or authority of the law, and proceeded to appraise and allot them *336out among themselves and certain other *persons claiming to*be the distributees of Joseph Davis, Sen., thereby making themselves *executors de son*tort, for said slaves.

The answer of the surviving executors admits the will, and that they and their brother, Benjamin S. Davis, qualified as executors ; that testator died considerably indebted, and that all the personal estate was exhausted in paying his debts, but the negroes Pat and Cain, whom the executors sold, and divided the proceeds between Elizabeth and Mary Whaley. That the negro left in the will to the defendant D. H. Davis, and Peter, left to A. G. Davis, had been the property of them respectively, and in their possession, long before their father’s death, and that there remained nothing out of their individual funds or property, bequeathed them in the will, charged with the satisfaction of their legacy; and that all the assets *of testator*ought to be marshalled and applied to the due course of administration, and to pay this legacy, and that others ought to be made parties, &c. Their answer states that the heirs at law contested the will, and the executors effected a compromise by giving up a portion of their individual estates to them, to let the will stand, and they insist that if the plaintiffs are allowed any thing from them, that their shares should abate in proportion of property allowed them respectively. Defendants do not admit that plaintiff executed the receipt to Fladger, (who bought the negroes Pat and Gain, as the agent of defendants in disbursing the fund) when he was in ignorance of his rights or while he was under age, and insist upon strict proof of the same. Defendants set up the receipt as a bar to any further claim to the legacy. That they have administered the estate of the testator more than four *years before the*filing of plaintiff’s bill, and have ceased to act as executors, and they rely upon the Statute of Limitations, and upon the lapse of time and the acquiescence of plaintiffs, &c., and insist that if their legal defence be overruled, that whatever may be decreed for the plaintiffs be settled upon Elizabeth for her sole and separate use.

Their amended answer denies that Joseph Davis died intestate as to the negro slaves claimed, or that he died possessed of any other property than that contained in the appraisement of his estate; that the negro slave Lissett was given verbally to the defendant A. G. Davis’s wife before the deed which testator, in his lifetime, made to these defendants, of said negroes, and that they were the property of defendants at his death. That having proved the will in common form after his death, some of his other children instituted proceedings to set aside the same, on the ground of mental incapacity, and to avoid a family feud and difficulty, and to preserve harmony with their brothers and sisters, and also *the*will of *337their father, they consented and agreed to divide said negroes amongst them; but although A. G. Davis gave up his interest, in them for the purpose aforesaid, he did not receive any distributive portion of them. They aver that they have administered the estate, and insist that plaintiffs’ claim, if they have any, ought to abate in favor of them, who have made sacrifices in giving up their own property to save her rights under the will. That defendants have exhausted the assets of their testator, left for the payment of his debts, and they insist they are not liable to account as prayed for in the amended bill.

The answer of Julia F. Davis, administratrix of Benj. S. Davis, denies that he had the negroes Doll and her family, but has been informed and believes that the same were given to A. G. and D. H. Davis, as stated in their answer., and insists upon the same grounds of defence in her answer to the original and amended bill, and relies upon thesame de-fence as the survivingex ecutors.

There are two questions presented in this case; first, is the receipt given by Griffin Coleman, Jr., a bar to his wife’s legacy ? He alleges he was under the age of twenty-one years, and was ignorant of the extent of his rights. Giving a receipt by an infant is like any other contract, and is voidable after he arrives of age ; and the first inquiry is, what was his age when he gave it? The personal recollection of the witness, Dozier, who stated to the best of his recollection he was born in the latter part of the year 1819, about a month before his daughter, who was born on the 1st of Nov. 1.819; and he says the entry of his age was made in the *“*Saints Úest,” and resembles witness’s hand-writing a little; and the witness Rowell made an entry of Griffin Coleman’s age, which he transferred from the “Saints Rest” to the Bible in 1821, when Griffin Coleman, Jr. was a child, and appeared tobe about two years old, establish the fact conclusively, that he was an infant at the time the receipt was given, and the executors must account for the legacy unless the claim be barred by the Statute of limitations, the lapse of time, or some act of confirmation. As to the Statute of limitations, it cannot affect a direct, declared, or express trust, it is only applicable to an implied or constructive trust: a legacy is not within the Statute, and length of time only produces a presumption of payment; here the defendants do not pretend they have paid the legacy, but only $>125, by way of satisfaction, and they contest their liability to pay it. There is material difference between a legacy and a debt; the executor has notice of the former by the will which he qualifies to execute, and no further notice is necessary ; but debts of the testator may be either dormant or not discovered, and it is incumbent on the creditor to give the notice. The period that has elapsed since Griffin Cole*338man, Jr. has arrived at age, is not sufficient to make it a stale claim. The lapse of 40, 35 or 30 years, has been held to afford a presumption that a legacy has been paid, but it appears that presumption, when applied to the last period, may be repelled by circumstances. There has been no act on the part of the plaintiffs since the disability of the husband has been removed to confirm his receipt, and it must beheld null and void as a discharge in full, and can only be considered as payment of the amount admitted in the bill; and the executors must account for the legacy (subject to the payment pro tanto) which ought to be settled upon the wife for her sole and separate use, as the husband is insolvent.

The second question arises under the amended bill, are the plaintiffs entitled to the claim they have set up to make the nine slaves liable for their legacy? The first clause of the will is evidently defective, and one word, at least, must be implied before a clear and sensible construction can be given to it; it is as follows: “It is my will and desire, that my executors *hereinafter named,.in their possession and management all m/y estate, both personal and real,*my personal estate to be kept on my plantation and managed by my executors, until all my just debts be fully paid and satisfied, which my executors are requested to do with all convenient dispatch.” It is apparent that something important has been omitted, and as a single word may make the sense complete, it is probable that the word *“take,”*or *“keep”*was omitted between the words *“nam*ed” and *“in;”*if this construction be given to the will, it is then plain that the testator gave them all his estate, and from his subsequent devises and bequests, it may fairly be inferred that he did not consider the negro slaves Doll, Stephen, Lis-sett, Becky, Frank, John, Peggy, Aley, and Sarah Ann, part of his estate, as they are neither specified nor alluded to, in any clause of the will. The parties offered much evidence on the subject of these nine slaves, and the weight of it is, decidedly, that the testator, for a very strong reason, did not desire these negroes to be disposed of like his other property, or put to hard service. He said he intended to leave these negroes in Abraham and Daniel Davis’ hands, to let them be as free as they could, although he could not liberate them. It was also proved that he said he had left them in their hands to take care of them; also that he had said that *“he had given them to Abraham and Daniel Davis.”*Lissett was, for several years, during the lifetime of the testator, in the possession of Abraham G. Davis, and the proof establishes that the others were sometimes under the control of Benj. S. Davis, and of Daniel H. Davis. The repeated declarations of testator, taken in connection with the acts of his sons, and the fact that not one word is said in his will about these slaves, (who if they had been his property, would have constituted the most important and valuable part of his estate,) leave no *339doubt Hot only that it was not only his intention to give them, but that he actually did give them to his two sons, Abraham G. Davis and Daniel H, Davis. After much deliberation on the subject, such declarations, independently of other proof, have often been held sufficient to establish a gift, even in cases where the property has not gone out of the donor’s possession ; but as one of the negroes went into one of the do-nees’ possession, and the others were under his and Benj. S. Davis’ control, and their names are not mentioned in the will, connected with the testator’s declarations, makes the inference irresistible, that these slaves *had been given*by him to these two sons.

The last question is, what property of the testator is liable to make up the legacy to the plaintiff? The will expressly provides that “ *the property of my sons hereinbefore mentioned to be subject to the purchase and payment of said legacies.”*It therefore plainly follows, that all the property (specified in the will) which he devised or bequeathed to his sons, is charged with the purchase and payment of this legacy; as it is a demonstrative legacy, entitled to a preference over the specific devises and bequests to the sons, the executors were bound to make good the legacy, either specifically or in value. The doctrine of election must be applied in this case; every son who received a legacy under this will, took it subject to the liability of contribution; had the debts been sufficient to exhaust the whole real and personal estate devised and bequeathed to them, so as to leave a balance barely sufficient to purchase the .two negroes and pay for them as provided in this clause, the executors would have been bound to have appropriated the balance to these purposes. Those to whom the testator had personally given property, might have declared to take under the will, and could have held what had been given them in ppposition to the will, but they cannot take any thing under it without making themselves liable for the contribution it requires. The principle is clear, that no one can claim under, and against a will; and although the testator has no interest or estate in the property he devises or bequeaths, if the owner is one of the legatees, he cannot claim under the will, without giving up his right to the property it disposes of; if he takes the benefit he must bear the burden.

It is therefore ordered and decreed, that the receipt of Griffin Coleman, Jr., mentioned in the pleadings, is null and void as a discharge in full of the legacy bequeathed to Elizabeth his wife, and that the same is only a payment pro tanto, in part of said legacy; that it be referred to the Commissioner to ascertain and report what is the specific value of such a negro girl as the testator directed to be purchased for the said Elizabeth, or the value of the same in cash and interest from the time when the executors of his will ought to have made *340the purchase and delivered the negro girl, or paid the legacy, after ¿editing the payment heretofore made to Griffin Coleman, Jr., in part; and that the Commissioner do report what estate, real and personal, the testator left which is liable to purchase and pay the same, and into whose possession the estate aforesaid has come; and that he do ascertain and report who is a fit and proper person to act as trustee of said Elizabeth Coleman, and that the said Commissioner do report upon what terms the said legacy should be settled upon the said Elizabeth Coleman. It is also ordered and decreed, that the said executors do account for and pay over and deliver the said legacy to the trustee that may be appointed by this Court for the said Elizabeth Coleman; and that the property of the testator’s sons, mentioned in his will, be subject to the purchase and payment of the *said legacy*(after deducting the payment as aforesaid.) Wherever the said sons have received a legacy under the said will, they (or their lawful representatives) shall respectively and proportionally contribute to the payment of the same.

Moore v. Por-cher, Bail. Eq. Starkv'stark Car. Law ’ Joum. 503.

The defendants moved to reverse the decree of the Chancellor, in this case, on the following grounds, viz r

1. Because the receipt and discharge executed by complainant, G. Coleman,, in 1838, purported to be, and was, according" to the proof, a dull arid' final settlement with defendants as executors of Joseph Davis, Sr.,' and the rights of complainants to any further claims were barred by the Statute of limitations, as more than four years had elapsed, by complainant’s-own shewing,"after die came of age, before filing the bill in this case.

2. Because the acquiescence of complainant in the settlement for the length of time, after coming of age, was a confirmation of the settlement, and the discharge is a bar to any further account by the defendants.

3. Because if the executors are liable to account at all, they are not bound to account for more than the personal assets of the testator which were left in their hands after the payment of testator’s debts; and the legacy to complainant creates no specific lien upon the real estate devised by the testator.

4. Because his Honor erred in admitting the testimony to prove the age of the complainant at the trial, when it is submitted the said testimony was not the highest evidence.

W. W. HaRxlee, defendants’s solicitor.

Johnston, Ch.

delivered the opinion of the Court.

The doctrine is well established that when an aet is per-f°rm0d bY a trustee, purporting to be an execution of his trust, he is, thenceforth, to be regarded as standing at arms length from the *cestui que trust;*who is put to the assertion of his *341claims, at the hazard of being barred by the Statute of limitations.’ *

x strob. Eq?’ 79!

This change in the relations of the parties in this case ivas produced by the release of the plaintiff, Coleman, when he received the $125. The release was a void contract by reason of his infancy. But the transaction out of which it arose gave currency to the Statute: and having neglected his remedy for four years after he attained majority, he is barred.

It is ordered, that the decree be reversed and the bill dismissed.

Dunkin, Ch. and Dargan, Ch. concurred.

*Decree reversed.*