#### L. G. Parks and Wife, and Others, *vs.*W. P. Noble, and Others.

In pursuance of an ante-nuptial agreement, husband and wife conveyed certain personalty to a trustee for the separate use of wife; and, on certain contingencies, at her death for her issue, and agreed that a certain tract of land should be settled upop. the same trusts, and in the meantime that they should have puerto sell the'áá&ie, and lay out the proceeds on the same trusts a/s were the‘i>eiii;’^ec|afM_ concerning the persbnalty. Husband afterwhrds sold the land ancfjreceived the purchase money, though the *titlejV4s';tná'd§’¡by*th$;,trustee:*— Held, that husband was an express trustee to ro-invest, or atíány rate bailee of the proceeds and agent to re-invest, and in neither capacity was entitled to the protection of the statute of liihitatidn's agaiinst the claim of the issue.

BEFORE DUNKIN, OH., AT ABBEVILLE, JUNE, 1856.

Dunkin, Ch. This canse was beard upon tbe commissioner’s report, and exceptions thereto. The general statement is so well and fully presented by the report that it is deemed necessary to do no more that consider the questions which arise upon the exceptions. The defendants’ first exception is overruled, for the reasons stated by the commissioner. Bentley’s deed would inure to different uses from those declared in the marriage settlement, and that of the commissioner’s in bankruptcy, for the Port Hannah tract was to Alexander Houston absolutely. The second exception presents the question, whether the husband is accountable for interest from 1837, when the land was sold, or from 26th November, 1843, when his wife died. He is no more responsible for interest from 1837, than he is for the rents and profits from 1826. (Clancey, 169, *170)*— Dulbias vs. *Dulbias,*16 Yes. 116. It is to be presumed they were applied to *86the separate use of the wife during the coverture. But, if they were not, the plaintiffs would have no right to demand an account. This would belong to the legal representatives of the wife, and not to her issue. In this respect, the account should be reformed. The plaintiffs prefer their claim under the deed of November, 1826, and by the provisions of that instrument, their right did not accrue until 26th November, 1843.

The third exception of the defendants is more embarrassing. Six of the plaintiffs and one of the defendants (who is an executor,) are children of Jane Houston, deceased. The bill was filed 7th January, 1856. The plea of the statute of limitations was interposed, It appeared that none of the children had attained majority four years before filing the bill, except *Augusta Gr. Parles*and *O. B.*Houston, the former of whom •was of age 7th May, 1848, and the latter on 22d January, 1850. It is insisted that the right of these plaintiffs is not affected because of the fiduciary relation of the parties, and so the commissioner has ruled, as well in relation to the hire, &c., of the slaves, as of the proceeds of Social Hall. The argument seems to be that, on the death of Pelot, the trustee under the marriage settlement, Alexander Houston, must be regarded to have held the negroes as trustee. And in a certain sense, the proposition is true. But he is a trustee by implication of law, and not an *express*trustee. As between trustee and *cestui que trust,*an *express*trust, constituted by the acts of the parties themselves, will not be barred by length of time; for in such cases, there is no adverse possession, the possession of the trustee being the possession of the *cestui que trust.*(Hill on Trustees, 264.) In a note it is said to have been uniformly ruled in the United States, that, in the case of an *express*continuing trust, the statute of limitations does not begin to run, as against the *cestui que trust,*and in favor of the trustee, until • there has been some open, express denial of the right of the former, or what amounts to an adverse possession on the part *87of the latter; and for the same reason, that the possession of the trustee does not usually bar the *cestui que*trust, the possession of the *cestui que trust*will not, in general, displace the legal title of the trustee.. But where the trust is not express, but is created merely by *implication or construction*of *Jaw,*the exception is inapplicable. The doctrine is recognised and the authorities collected in *Joyce*vs. Gunnels,2 Rich. Eq. 260, in which case it was held that a tenant for life, although .a trustee, was entitled to the protection of the statute from the time when the right of the remainder-man accrued. Upon the death o£ Mrs. Houston, in November, 1843, the rights of her children accrued. Alexander Houston had neither a legal or equitable title to the slaves. He had been entitled in a qualified sense, to the possession during his wife’s lifetime ; after that time, the law implies that he- held in trust for his infant children. While they were under disability, their right was unaffected by time. ' But on 11th December, 1848, the plaintiff^ Lewis L. Parks, the husband of Augusta G-., received from Alexander Houston two slaves, valued at one thousand and fifty dollars, and executed to him the following receipt, viz:

“ Received of A. Houston, guardian of his children, viz: Cornelius, Alexander, Armstrong, Jane, Cornelia, and Alice Houston, the following negroes, Charlotte at seven hundred dollars, Louisa at three hundred and fifty dollars — one thousand and fifty dollars, which is two hundred and seventy-one . dollars and forty-five cents over and above my full part of the negroes of the estate of Jane Houston, deceased, this 11th December, 1848, (signed) Lewis L. Parks, in presence of C. B. Houston.”

If A. Houston had been an *express*trustee, this might well be regarded, *prima*facie, as an act discharging his trust in-reference to the slaves, and that the statute would run, as to the claim of this plaintiff, Parks, from that time. But in the judgment of the Court, it was an implied trust, and the testa*88tor, A. Houston, was entitled to tbe protection of tbe statute in four years after tbe removal of tbe disability of infancy.

*0. B. Houston,*tbe witness to tbe foregoing receipt, became of age in January, 1850, and in December, 1852, received from bis father three negroes, valued at nine hundred and fifty dollars, for which be executed a receipt as of bis lot. His right to an account for hire was barred two years before tbe filing of tbe bill.

Then as to tbe proceeds of Social Hall. Tbe Court has not been put in possession of a copy of tbe deed from tbe trustee, J. E. Pelot, to tbe purchaser, James Edward Calhoun. In bis testimony, Mr. Calhoun stated that it was recorded in tbe clerk’s office, that tbe purchase money was chiefly paid to tbe plaintiff, Cornelius B. Houston, who called frequently for it, and who acted as agent for bis father — that, except a few hundred dollars, tbe payments were completed before tbe end of 1844. So far as tbe Court can form a judgment from tbe evidence, John E. Pelot was tbe express trustee, and was bound to see that tbe proper re-investments were made. Alexander Houston was also affected with tbe trust, as be received tbe money. But none of tbe reasons seem to apply which should except this obligation from tbe operation of tbe statute after tbe rights of tbe parties accrued, and their disability was removed. It is not so clear as in tbe case of tbe hire of tbe negroes, and tbe difficulty arises, in some measure, from tbe deficiency or uncertainty of tbe evidence. But assuming tbe statute to run against tbe claims of Parks and wife, and of C. B. Houston for tbe proceeds of Social Hall, tbe bar of tbe statute will not prevail, for reasons hereafter to be stated. Tbe plaintiffs’ first exception is overruled for tbe reasons stated by tbe commissioner.

Regarding tbe relation of Alexander Houston as only constructively fiduciary, tbe Court is of opinion that be is responsible for hire only as a third person would be. Tbe second exception is therefore overruled.

*89It is stated in tbe bill, that sometime before tbe death of Alexander Houston, be caused an informal partition of tbe slaves, to be made among bis seven children, wbo were entitled to tbe same; but it is alleged that some of tbe children were minors at the time. This statement in relation to the partition, is verified by tbe Exhibit (K,) filed with tbe answer of tbe executors. Tbe plaintiff Lewis Gr. Parks, bad received bis share, as appears by tbe receipt already recited. In 1852, tbe remaining slaves were divided into six lots, marked and numbered, for tbe other six children respectively. O. B. Houston took bis lot and gave bis receipt as before stated. At tbe same time, A. E. Houston took bis lot and gave bis receipt. Tbe lot of Armstrong P. Houston was also received, and be subsequently sold one of tbe slaves at an enhanced price, as appears specially in tbe report. Lot No. 4 was received by John 0. Scott, in right of bis wife, and bis receipt given a few days after tbe other receipts. Tbe other two lots, No. 5 for Cornelia, and No. 6 for *Alice,*wbo were, and still are, under age, remained in tbe possession of their father. 0. B. Houston wbo bad been in possession of bis negroes since 1852, became greatly embarrassed, and bis father’s estate will suffer in consequence of tbe testator’s suretyship for bis son. His negroes are also under levy at tbe suit of creditors, wbo insist on their rights, and furthermore suggest that 0. B. Houston, though nominally a complainant in the bill, bad left tbe State tbe year before tbe bill was filed.

Although this partition was not strictly formal, it is binding upon those wbo participated in it and have taken tbe benefit of it, as well as confirmed it by their subsequent conduct. (Osioaldvs. *Givens,*Eicb. Eq. Oases, 326.)

Tbe testator by bis will, describes these negroes, “ as tbe property and their increase of Jane Houston, deceased,” and bequeaths tbe negroes to tbe several children according to tbe partition already made. He also makes some special *90bequests to Cornelia and Alice, not probably of very considerable value. It is not suggested that the negroes retained for the minors, Cornelia and Alice, are not equal to their proportion, or that their rights have been, in any manner, prejudiced, or that the prayer for a repartition is for their benefit. — There are considerations which might render it disadvantageous to the interests of the minors; and the other parties who are united with them as plaintiffs, have no right to complain. If *they*have received more than their share, their interests are antagonistic to those of the minors, with whom they are associated as plaintiffs. It will be referred to the proper officer to inquire and report whether it is for the benefit of the minors, Cornelia Houston and Alice Houston, that the partition made, in their behalf, by their father, Alexander Houston, deceased, in his life-time, and recognised by his will, should be affirmed or set aside by the Court, with leave to report any special matter growing out of the inquiry. The testator, A. Houston, devised the Port Hannah tract of land, to be equally divided between the seven children (by name) of his last marriage. On the part of the plaintiffs, it is insisted that they are entitled to the benefit of this devise, in addition to their claims against the estate of testator, arising out of the marriage settlement. On the other hand it is maintained that the devise of Port Hannah must be regarded as a satisfaction *pro tanto*of the testator’s obligation, or a performance *pro tanto of his*agreement or covenant. The doctrine upon this subject is fully discussed by Mr. Justice Story, in his Equity Jurisprudence, § 1099, et seq. It is deemed necessary here only to repeat the language of Mr. Boper:

“ In the discussion of questions of this nature, two descriptions of cases have occurred; the one consists of cases called cases of performance; the other of cases of satisfaction. — The cases considered in this section are cases of the former class, in which there has been a covenant by a husband, to leave *91or pay to Ms wife a sum of money at bis death, and be dies intestate, and Ms wife’s distributive share of Ms personalty, under the statute, is equal to or more than the sum stipulated under the covenant. In that case, he is held to have performed, through the operation of the law, what he had covenanted to do. The other case is where the wife takes a benefit to an equal or greater extent, under her husband’s will, to which the same reasoning is not applicable. But although the bequest is not a performance, still it may be inferred that the testator intended it as a satisfaction of the covenant, so as to raise a case of election. Satisfaction, as Sir Thomas Plumer observes, supposes intention: it is something different from the subject of the contract, and substituted for it. And the question always arises, was the thing intended as a substitute for the thing covenanted ? — a question entirely of intent. But with respect to performance, the question is, has that identical act, which the party covenanted to do, been done?”

Satisfaction being a question of intent, the Court may look for the evidence of that intent in the conduct of the party as well as to the instrument itself, and even to extrinsic circumstances. In cases of portions secured by marriage settlement, Sir John Leach says: “ The rule of the Court is, as in reason, I think, it ought to be, that, if a father makes a provision for a child by a settlement on her marriage, and afterwards makes a provision for the same child by his will, it is *prima facie*to be presumed that he does not mean a double provision. But this presumption may be repelled or fortified by intrinsic evidence derived from the nature of the two provisions, or by extrinsic evidence: where the two provisions are of the same nature, or there are but slight differences, the two instruments afford intrinsic evidence against a double provision. Where the two provisions are of a different nature, the two instruments afford intrinsic evidence of a double provision. But in either case, extrinsic evidence *92is admissible of tbe real intention of tbe testator.”. *(Weall*vs. *Bice,*2 Boss, and M., 267: Story Eq., § 1109.) Tbe inquiry is, not whether tbe provision made by tbe will of .the testator, *was*a satisfaction of tbe plaintiffs’ claims under tbe settlement, but whether it was or was not tbe *intention*of tbe *testator*that tbe provision made by tbe will should be so taken; and if so intended by him, does it not, as Mr. Boper puts it, “raise a case of election?” All tbe circumstances are properly to be taken into consideration in solving this inquiry.

In April, 1837, Social Hall was sold. Between that time and 1844, (inclusive,) tbe testator received tbe proceeds which, by bis covenant, were to be invested to tbe same uses. On 10th February, 1838, be purchased tbe Bentley tract for five hundred dollars, and took a conveyance to tbe trustee of tbe settlement. For tbe reasons heretofore stated, this was not ,a fulfilment of bis covenant even *pro tanto,*although it cannot be doubted that be so intended, and that be regarded that property as correctly settled. In 1844, be made a further purchase of Fort Hannah for six hundred dollars, from tbe Commissioners in bankruptcy, but took tbe title in bis own name.

This tract contained six hundred and thirty acres, and it is in evidence that the- testator held it, at one time, at three dollars per acre. In August, 1855, tbe testator’s will was executed. To bis eight children, by a former marriage, be devises and bequeaths “ all bis real estate, except tbe tract of land known as tbe Fort Hannah tract, then in tbe possession of Alexander E. Houston,” and several negroes, (by name,) *“*in addition to what they bad already received,” and refers to a book kept by him to show that *■“*those children would be all equal.” He then proceeds to give and bequeath to bis “ last set of children,” tbe following negroes, &c., describing those which were under tbe marriage settlement, and which be distributed among tbe children according to tbe previous *93partition. Tbe Eort Hannah tract is tben devised to be equally divided between tbe same children. Yarious other articles are tben bequeathed to tbe *six*younger children of tbe second marriage, and tbe will concludes, “ and what moneys and notes may be on band, after paying all my debts, to be equally divided between my last named six children, that is to say,” &c.

So far as tbe Court can collect from tbe instrument itself, as well as from tbe pleadings and evidence, tbe testator bad thus made a formal disposition of *all the'tangible*property in bis possession, except tbe Bentley tract; tbe title of which was in tbe name of tbe trustee. His moneys, cboses in action, &e., were bequeathed to tbe six children of tbe second marriage, as above recited. Tbe inquiry tben is presented, was it tbe intention of tbe testator that tbe devise of tbe Eort Hannab tract should be regarded as a satisfaction of what remained due on tbe sales of Social Hall ? Although tbe deed did not require, in terms, that tbe re-investment ■sbould.be in real estate, the testator seems to have regarded that as necessary or proper. He accordingly makes an immediate re-investment (as he supposed,) in tbe Bentley place for five hundred dollars, and took tbe deed in tbe name of tbe trustee. When be purchased tbe Eort Hannab place, be took tbe title in bis own name, and not in tbe name of tbe trustee. It could, in no view, be therefore properly regarded as an investment for tbe trust estate. He asked three dollars per acre for this tract of six hundred and thirty acres. Among tbe witnesses, there is a difference of opinion as to tbe intrinsic value. But tbe testator, having failed to reinvest nineteen hundred dollars of bis children’s money as received from tbe purchaser of Social Hall, by bis will devises to them a tract of land which be valued at nineteen bundr'ed dollars. Although tbe settlement of November, 1826, was not strictly a marriage portion for tbe children, much of tbe reasoning applies as stated by Sir John Leach *94in *Weall*vs. Bice, 1 Eng. O. R. 19. Tbe presumption in sucb case should be against tbe intention of a double provision. In that case, it was said to afford intrinsic evidence against a double portion, that'the provisions in tbe two instruments were of tbe same nature. Under tbe settlement of 1826, the provision was of real estate, and tbe provision by tbe will is of tbe same character. But, as in that case, a reference to tbe extrinsic evidence strongly corroborates tbe inference that tbe testator, at tbe making of tbe will, did not intend a double provision. Having made a deliberate and careful disposition of tbe whole of bis estate, and having manifestly in bis contemplation tbe rights of tbe plaintiffs under tbe settlement, be would have left nothing to satisfy them, unless tbe provision of bis will was so intended. In tbe judgment of tbe Court, tbe devise of tbe Port Hannah tract was intended as a satisfaction *pro tanto*of tbe obligation of tbe testator in reference to the proceeds of Social Hall, so as to make a case of election. Tbe parties having, by their bill, expressed their choice to abide by their claim under tbe settlement of 1826, can derive no advantage from tbe devise, except as an acknowledgment by tbe testator of a subsisting indebtedness for tbe proceeds of Social Hall. This saves tbe claim of all tbe parties from tbe operation of tbe statute of limitations in regard to that fund.

It is ordered and decreed that tbe Commissioner amend bis report according to tbe principles herein declared, and that be also inquire and report as to tbe interest of tbe infant plaintiffs in abiding by tbe partition already made.

It is further ordered and decreed, that parties have leave to amend tbe pleadings, if so advised, and apply for sucb further orders as may be necessary in reference to tbe Bentley tract and tbe Eort Hannah tract of land, as well as to pray an account of tbe estate Of Alexander Houston, deceased in tbe bands of bis executors, if sucb account be desired.

*95Tbe complainants appealed on tbe grounds,

1. Because bis Honor, tbe Chancellor, applied tbe bar of tbe statute to tbe negro hire of two of tbe complainants, viz: Lewis Gr. Parks and wife and O. B. Houston. None of tbe claim of tbe complainants, or either of them', being subject to tbe statute of limitations.

2. Because tbe complainants are entitled to interest on tbe purchase money of *“*Social Hall,” not only from tbe death of Mrs. Houston, but from tbe time tbe money was wrongfully received and appropriated by Alexander Houston, deceased.

3. Because tbe complainants are entitled to receive tbe provisions made for them by their mother under tbe marriage settlement; *and also*to tbe Fort Hannah place, given to them by their father in bis will.

Tbe defendant, W. P. Noble, also appealed. .

Because bis Honor erred in bolding tbe bar of tbe statute of limitations not to apply to tbe proceeds of tbe sale of Social Hall. It is respectfully submitted it is applicable to two shares of it, viz : Tbe shares of Lewis (x. Parks and wife and C. B. Houston.

Alexander P. Conner and "William McOelveyalso appealed —because bis Honor did not dissolve tbe injunction granted by tbe Commissioner in this case, nor otherwise afford them relief.

*McG-owen,*for plaintiffs.

Nolle, for tbe executor.

Thomson, for Conner and McCelvey.

*96The opinion of the Court was delivered by

Warel aw, Ch.

The plaintiffs have not pressed their appeal upon us, indeed have avowed their willingness that the circuit decree shall stand; the creditors Conner & McCel-vey, so far as we can judge from the imperfect brief before us, have no just ground to complain of the decree, and it remains to consider the appeal of the executor of Alexander Houston, that the shares of Parks and wife and 0. B. Houston in the proceeds of the sale of Social Hall are barred by the statute of limitations. Jane Postell before and when she became the wife of Alexander Houston, was seized in fee of the plantation called Social Hall, and of certain slaves and other property; and in the treaty of marriage between these parties, it was agreed that all the estate of the intended wife should be settled to her separate use. In pursuance of this agreement and after their intermarriage, the parties, on November 18, 1826, did convey the negroes and other chattels to John E. Pelot, in trust for the separate use of the wife, with power of appointment, and in lack of appointment, and in case of her predeceasing her husband, at her death for her issue; and in the same instrument, the parties, without actually settling Social Hall, agreed that it should be settled upon the same trusts as the personalty, and that in the meantime they, Houston and wife, should “ have power to sell and dispose of the same, and lay out the proceeds on the same trusts as were therein declared concerning the personalty.” In April, 1837, Houston sold this land to J. E. Calhoun for twenty-four hundred dollars, and afterwards received the purchase money; Pelot as trustee making the conveyance. On February 10, 1838, Houston purchased the Bentley tract for five hundred dollars, and took a conveyance to this trustee, but not precisely on the trusts of the settlement, and 'in 1844, he purchased the Fort Hannah tract, which he seems to have valued at nineteen hundred dollars, and took the conveyance, to himself. Houston died in 1855, *97and bj bis will dated August 11, 1855, be devised Port Hannah to bis seven children who were the issue of bis wife Jane.. These children filed this bill, January 7, 1856, among other objects, for the proceeds of Social Hall, not contesting the title of the purchaser; and the executor pleads the statute of limitations. Two of the plaintiffs attained maturity more than four years before the bill was filed, namely, Mrs. Parks on May 7, 1848, and C. B. Houston January 22, 1850; and as to these two only, the others' being"infants, is the statute relied upon.

The Chancellor held that the statute was no bar, because the devise to the plaintiffs of Port Hannah was satisfaction *pro tanto*of the plaintiffs’ claim, and served as a recognition of this claim at the death of the testator, creating a new point of time for the beginning of the barring term of the statute. "Without discussing the sufficiency of these particular grounds, we think the Chancellor’s conclusion may be vindicated for more palpable reasons.

We regard Alexander Houston as express trustee to reinvest the proceeds of Social Hall in other estate, and that his executor as representative stands in the position of the testator. Social Hall was not conveyed to Pelot as trustee by the post-nuptial deed, but was reserved under the express covenant of Houston and wife, equivalent to his single covenant, that they would reinvest the proceeds of sale, which they were authorized to make, in other estate to be held for prescribed uses. He sold, but did not reinvest the proceeds, at least for the whole sum. This express trust continued until full reinvestment." Lord Nottingham, who has been sometimes called the father of equity, in *Goolc*vs. *Fountain,*8 Swans. 585, defines implied trusts, to be such as are raised by construction of law, from the circumstances of the case, as from the relation of the parties, and defines express trusts to be those created by the act of the parties declared by word or writing, and manifested by express proof or violent pre*98sumption. In tbe present case Alexander Houston expressly covenants to reinvest tbe proceeds of Social Hall for tbe use of bis wife and ber children; and although be did not fully reinvest, it does not appear that be ever repudiated or denied bis obligation to this duty. Justice and policy require that a mere trustee should not be protected by lapse of time, in any attempt to appropriate to himself tbe property of bis beneficiaries. So long as tbe trust continues, and while tbe trustee acknowledges bis relation to tbe beneficiaries, equity will grant to tbe beneficiaries an account or any other proper relief. If tbe trustee does some act distinctly importing an end of tbe trust, as if be makes a settlement of bis accounts apparently in full, or denies in tbe presence of tbe beneficiaries any or further liability, this breaks tbe fiduciary relation between tbe parties, and is an origin for tbe running of tbe statute against tbe beneficiaries, who are not under incapacity. *Long*vs. *Gasón,*4 Eicb. Eq. 63, and tbe cases there cited. Instance of such an act as disturbs tbe fiduciary relation and creates a point from which tbe statute runs, is afforded in this case by tbe receipt taken by Alexander Houston from Parks and C. B. Houston, as to tbe negroes held in trust, more than four years before tbe filing of tbe bill, and we concur with tbe Chancellor in bolding that these plaintiffs are barred by tbe statute from any account for tbe hire of these negroes. But as to tbe proceeds of tbe sale of Social Hall, it does not appear, that Alexander Houston in any form disputed tbe rights of bis children by tbe latter marriage. The bill relates to tbe proceeds only, and we are not required to consider tbe title of tbe purchaser, Mr. Calhoun. If there be reasons, which do not appear to us, to doubt that Alexander Houston was a technical trustee to reinvest tbe proceeds of Social Hall, surely it cannot be contested that be was bailee of tbe proceeds, and agent for bis wife and children to reinvest; and in such case tbe statute does not begin to run until there be usurpation and refusal *99of the xigbts of the claimants. As Chancellor Harper remarks in *Lever*vs. Lever, 1 Hill 67, “ the possession of an agent or bailee, (and a bailment is a trust) is the possession of the principal or bailor, and is not adverse until demand and refusal.”, In this case we are not advised of any demand or refusal before bill filed.

It is ordered and decreed that the appeal be dismissed.

JOHNSTON, DutsTKIN and DargAN, CC., concurred.

*Appeal dismissed.*