#### Mourning Roberts *vs.*John *W.*Lesly.

Testator bequeathed property real and personal to M. R., a single woman, “ to her, and her heirs forever,” and directed that the property be turned into money, that the money be put out at interest, and the interest paid annually to her; and he appointed J. C. “ trustee and executor with full powers to carry this will into effect;” and should J. 0. die, “then it is my will that the ordinary for the time being for Abbeville, appoint a trustee to the said M. R., and successor to the said J. C

*Held,*that the property, before sale, and the proceeds after sale, belonged absolutely to M. R., and that she had power to oontrol and dispose of it as she pleased, J. C. sold the property and paid the annual interest to M. R. until his death. After his death his executor, with the concurrence of M, R., petitioned D. *It.,*ordinary of Abbeville, to take charge of the money and manage it “ as trustee or as an estate derelict.” The money was accordingly transferred to D.L., who paid the annual interest to M. R., until 1850, when he transferred the fund to 3?. S., his successor in office. 3?. S., paid the annual interest to M. R., for three years, and then died, insolvent:—

On bill filed, 13th March, 1855, by M. B., against the executor of D. 1., *held,*that she could not recover, — she was barred by the statute of limitations, and by accepting the annual interest from 3?. S. had ratified the transfer to him.

BEFORE JOHNSTON, OH., AT ABBEVILLE, JUNE, 1855.

Benjamin Beal, of Abbeville, by bis last will, dated tbe 27th of August, 1827, provided as follows:—

“ As to my worldly affairs, I will and bequeath as follows, that is to say:

“ I will and bequeath all my negroes to Lucinda Gray,' to her and her heirs forever.

“ And to Mourning Roberts I will and bequeath the balance of my estate, both real and personal, consisting of cash on hand, note.s, book accounts, horses, saddle and bridle, bed and furniture, &c., &c., and the whole of the moiety of the tract of land I am entitled to, and on which my father resided, to her and her heirs forever, in the following manner, viz : I will that the bequeath to Mourning Roberts aforesaid, be turned into ready money, and the money to be put out to interest, and, after deducting all necessary expenses, the amount of interest to be *36paid over annually, to the said Mourning Roberts, for her use and benefit.

“ And I hereby appoint James Calhoun, trustee and executor, with full powers to carry this my last will and testament into effect.

“ And should the aforesaid James Calhoun refuse to act, or dies, or removes from the district, then it is my wil that the Ordinary for the time being, for the district of Abbeville, appoint a trustee to the said Mourning, and successor to the said James Calhoun.

“ It is further my will that my funeral expenses, and all other expenses, with debts I may justly owe, to be equally paid by my aforesaid legatees.”

James Calhoun, during his life, duly executed the will, by selling the property mentioned in the will as given to Mourning Roberts, and paying her the annual interest of the nett proceeds. But he died the of January, 1843, leaving a last will and testament, of which,his son, William Henry Calhoun, was executor. William Henry Calhoun continued, as his father had done, to loan out the fund of Mourning Roberts, and pay her the annual interest, until the 1st of April, 1844.

On the 10th of December, 1843, he filed his petition in the Ordinary’s Court (in which Mourning Roberfs concurred) as follows: «

“ South Caeolina, Abbeville DistRict.

“ To David Lesly, Ordinary: The petition of William H. Calhoun showeth, that James Calhoun, deceased, was. the executor of Benjamin Beall, deceased, and executory trustee, in the will of the said B. Beall, deceased, for the interest or legacy of Mourning Roberts, who was to receive the annual interest of said legacy during her natural life,.

“ That by the will of the said B. Beall, deceased, it was also provided that, in case of the death of the said James Calhoun, *37as executor, the Ordinary of the district was to *■take charge of the said estate, or legacy, of the said Mourning Roberts.*

*“*That the said James Calhoun has departed this life, and your petitioner is the qualified executor of his will; and that he is desirous, and in fact, *determined,*to give up his management of the interest of the said Mourning Roberts, as the representative or executor of the estate of his father, the said James Calhoun ; and that there has been a settlement of the estate of Benjamin Beall, deceased, and of the interest which the said Mourning Roberts had therein, in the *Ol^irrlVyi’jWjjflirr/*in 1848, in which it was decreed due to h^áptóg.lT(aéLs|^^s&re-said some two thousand six hundred (Mlars; and tnefsaid Mourning Roberts having signified herfor *you,*the said D. Leslie, *as Ordinary,jio*take charge of «er money *as Ordinary or trustee,*or as an^8ig^i *M*

“Your petitioner prays that yqu, Ordinaru^-iame or receive the same into your hands, the estate or'i^nies, legacy or interest of the said Mourning Roberts; and hold and manage the same as the will directs, and as the law contemplates you should as *trustee,*or *an estate derelict.”*

On the first of April, 1844, William Henry Calhoun transferred the principal of the fund to Mr. Lesly; who thenceforth continued, year by year, to pay Mourning Roberts the interest so long as he continued in the office of Ordinary.

Having been succeeded'in office by E. W. Selleck, who demanded the fund, Mr. Lesly ( — first paying over the- interest to Mourning Roberts, to the 1st of April, 1850 — ) stated an account with Mr. Selleck, his successor, showing a balance in his hands of two thousand five hundred and sixty-two dollars and twenty-five cents; under which he took the following receipt:

“ This amount of two thousand five hundred and sixty-two *38dollars and twenty-five cents was tliis day paid over to me by D. Lesly, late Ordinary. 28th March, 1850.

“ E. W. Sbllack, O. A. D.

“ Witness, Thos. 0. PbRRIN.”

Selleck died insolvent. Afterwards David Lesly died, leaving a will, of which the defendant, J. W. Lesley is executor.

The bill was filed by Mourning Roberts, the 13th March, 1855, against William Henry Calhoun, and against the executor of David Lesly, seeking payment of the fund thus lost.

The case was set down and heard, first against William Henry Calhoun; and the bill was dismissed as against him, on the ground among others, that by plaintiff’s own showing, he transferred the fund to Lesly with her privity and consent.

The case came on then to be heard as against the executor of Lesly.

It appeared in evidence that on the 28th of February, 1851, the plaintiff, Mourning Roberts, drew on Selleck for the interest of the preceding year, but the draft not being then honored, her subsequent receipt to Selleck, as Ordinary, for one hundred and seventy dollars and forty-eight cents, dated the 17th March, 1851, was proved, “ being the whole amount, due me from my legacy for the last year.”

Another draft was put iri evidence from her on Selleck, “ for the money due me for the last year,” and dated 8th April, 1852; accompanied by a receipt from her to Selleck, dated April 9, 1852, for one hundred and seventy dollars and forty-eight cents, “being the amount due me from the estate of Benjamin Beall, deceased, for the last year.”

Also, a draft, dated March 21,1853, from same on same, for one hundred and seventy dollars and forty-eight cents, “ due me from your office,” with a receipt, of same date, from same to same, styling him Ordinary for Abbeville District, for one hundred and seventy dollars and forty-eight cents, “being in full for this amount due me for last year.”

*39Johnston, Oh. The money has been lost, eventually, in Selleck’s hands; and, as he had no right to the possession of it in his official character, it cannot be, and ought not to he, charged to his sureties. This being clearly seen by the plaintiff, she has not impleaded them in this suit.

Selleck having died insolvent, it would have been a vain thing to bring his representative before the Court.

The question is, which of the parties now before the Court shall lose the money ? and, let the decision go which way it may, it will work a hardship. But this is a matter which, though it may affect the feelings of the Court, must not influence its judgment.

This fund has been considered by all parties, from the time it came to the possession of James Calhoun to the present, as subject to a trust. But I am very clearly of opinion that, from the time the legacy was assented to, as no longer subject to debts of the testator, the interests of Mourning Roberts in it were legal, and not equitable. The property was given to her and her heirs forever, which vested her with a legal and absolute right of dominion; and the direction to convert it, and apply the annual interest to her, did not abrogate the right of control arising to her from her title to the property or its proceeds, (a)

She could, any moment she chose, have compelled the delivery of the property, before it was sold, or its proceeds after-wards, by an ordinary proceeding at law, suited to the circumstances.

Therefore, the delivery of the fund to Lesly, by Vm. Henry Calhoun, at her instance, or with her assent, was a delivery to herself; and, if she had, at any time afterward, demanded a delivery of it by Lesly, he could not have resisted. Calhoun was only her agent while he held the fund, and Lesly was no more'after it came to his hands.

*40This was the law, I apprehend, if the parties had understood it. But it is manifest that none of them viewed the matter in this light. They all considered it as a case of express continuing trust. Lesly acted under the same mistake as the other parties. There was a mutual mistake. It was, in truth, owing to the prior mistake, of Calhoun and Roberts, that Lesly was led ■into the blunder of taking trust control of the fund. To the legal inferences proper to be drawn from this mistake of all the parties, I shall hereafter turn, and show how they, in my judgment, affect the case.

If, in fact, such a trust existed under the will, as the parties supposed, or assumed — that is to say, if, under the will, James Calhoun was a pure trustee of the fund, then, upon his death, the provision came into operation that the Ordinary should appoint a successor. But this being no part of the *official*duty of the Ordinary, Lesly had no *official*power, *as*Ordinary, to make the appointment. The power was a mere personal power with which he was clothed by the *descriptio personen*of the testator. It was a private, and not an official authority, which he might or might not exercise, according to his pleasure. And, moreover, the *cestui que trust*was at liberty to absolve him from making the appointment, and consent that he, himself, might take the trusteeship. This is what she did. Concurring with Calhoun’s application, she desired him to assume the trusteeship, or the control of the estate as derelict; and, thereby, none the less dispensed with his appointment of the successor, because she contemplated that he was to act as *Ordinary.*

If a trust existed, therefore, under the will, (which is the view I am taking for 'the present,) then the fund came to the hands of Lesly with that trust attached to it. He was then trustee to execute it. This was in conformity with the view of Mourning Roberts; of which we have evidence in her regularly calling on him and receiving the annual interest, for four years in succession.

Now, if we stop at this point to inquire what was the effect *41of Lesly’s transfer, of the fund to Selleck, on the 28th of March, 1850; the answer must be, that the act was intended, either as a complete discharge of the trust, or as a violation of it; and, if a violation, or breach, of trust was intended, then this was either with the concurrence of the *cestui que*trust, or without it.

If the transfer was made with the intention to discharge the trustee, then the case of *Moore*vs. Porcher,(a) shows that the statute, barred this suit before bill filed.

The statute has, upon principles equally plain, established a bar in case a breach of trust was intended; (provided, as I shall here assume, the *cestui que trust*had knowledge of it;) and whether she concurred in it or not.(b) In case of her non-con: currence, the trust was openly thrown off, and she was impliedly defied to sue; and her negleet justly subjects her to the bar. In case she concurred, if she were not by that very fact deprived of all remedy, it is plain that no remedy could be administered to her after the expiration of four years.

If no trust attended the fund into the hands of Mr. Lesly, then the case, in One aspect, was the very common one of money received by one man to another’s use. An action lay from the moment it came to his hands; and is barred. In another aspect, it may be regarded as money in the hands of an agent. In such case, it seems, the law courts regard the possession of the agent as that of the principal, and apply the statute only from the time of demand made to pay it over. I suppose they apply it, also, in case the fund was misapplied, from the time of misapplication. Certainly principle would seem to require this, if the misapplication was known to the principal. In this case, I assume, upon the evidence, that the transfer to Selleck was known to Roberts. Her early application to him for the interest, as soon as interest had accrued, and the repetition of this application year by year, favor the idea that she knew the *42fund, from which the interest was to arise, was in his hands. If to this we add the fact that, prior to, and as a preparation for, the transfer, Lesly paid her, in anticipation, the interest not then quite accrued, — it is almost certain — at least there is a moral probability, which, as evidence, should not be disregarded — that she knew of the transfer at the time it took place. Look, also, at her order on Selleck, of 28th Eeb., 1851.

Thus, whether the supposed trusts under the will actually existed, and attended the money into the hands of Mr. Lesly ; or whether the money went into his hands divested of all trusts ; in either of these cases the bill cannot be maintained.

But there is another view of the subject which should not pass without consideration. Lesly, as Ordinary, was neither bound to appoint a trustee, nor act as trustee ; nor to take possession of the fund as derelict. But as Mourning Roberts was *aui juris,*she was at liberty to place the fund in his hands upon whatever terms she pleased; and this whether it was a trust found or not, or whatever the trusts attached to it were. There was no other person interested in the trusts, whatever they were, but herself. No person who could gainsay her act. Now, it is plain that the mistake of all these parties was that Lesly was, somehow, bound to take this fund into hand as *Ordinary.*No doubt he received it in that character. It was so considered by all parties. Though this was not the law, it was the understanding.

Looked at in this light, the expectation of all was that he was to deal with it as *an Ordinary*should deal with funds properly in his hands in his official character.

I assume it as sound doctrine, that when one person places a subject in the hands of another, which is accepted by that other, with a stipulation express, or necessarily evidenced by the circumstances, that the latter shall deal with the subject according to some standard of duty contemplated by both parties, the acceptor of such authority is absolved from liability if he conforms to that standard. . Of course I am understood, *43here, as referring to the standard of duty arising from .the law of the Ordinary’s office. I wish to be explicit. If, in any point of view, it had been possible for this money to have gone into Lesly’s hands officially, then no mistake of the parties as to what his duties demanded could have been set up as the standard of his duties: he must conform to the law. Different, however, is the doctrine where the transaction, from the necessity of the case, must be regarded as entirely voluntary. The engagement in this case, — there being really no law to compel either party to enter into it, — must be regarded as purely voluntary on both sides. But all voluntary engagements should be enforced according to the intention of the parties, and not otherwise. It is admitted that Mourning Roberts supposed she was properly confiding her funds to the Ordinary, and that she had the security of his official bond for the performance of the duties she expected him to perform, as such. This security she could not have, because the law would not allow his bondsmen to be made liable except in cases where the law required the principal to act. But the question before us does not relate to the security to which Roberts is entitled, but to the nature of the duties she intended to exact from Lesly.

These duties were measured in the conception of both parties by what an Ordinary should do with a derelict estate. If this had, in fact, been such ah estate, Lesly has transferred it to his successor; and that is what he was expected to do: and he is absolved.

It is said he could not have regarded it as a derelict estate. Why ? Because he did not deposit the fund in bank, as required by law. But it is not the neglect to make such deposit that is now complained of. The complaint is, that he transferred the fund to Selleek, who has wasted it. And had Lesly deposited it, would he not have been bound to transfer all proper de-posites to his successor? and this among others? Would not the money have been equally lost, whether the fund was directly transferred, or transferred through the circuity of a deposit ? *44Besides, is it not a sufficient answer to the-objection of neglect to deposit, that the plaintiff may have excused that duty ? and is it no evidence of this, and of her ratification of Lesly’s conduct, that she received the interest at his hands for four years ?

Having disposed of every view heretofore suggested, it remains only to notice the plaintiff’s ratification of the transfer to Selleck, evidenced by her repeated drafts on him, as Ordinary, and receipts to him, as such, up to the time his insolvency became notorious. Had he never failed, we should never have heard any complaint.

It is ordered, that the bill be dismissed; each of the parties now before me (the plaintiff and Lesly’s executor) to pay his and her own costs. The executor’s costs to be charged to his testator’s estate.

The plaintiff appealed, and now moved this Court to reverse the decree on the grounds:

1. Because it is respectfully submitted, the interest the plaintiff took under the will of B.enjamin Beall, deceased, was a trust estate — that the trust was executory, and not subject to the plea of the statute of limitations.

2. Because David Lesly, by accepting the trust estate from the executor of James Calhoun, *deceased,*executor of Benjamin Beall, appointed himself trustee in the place and stead of the said James Calhoun, by virtue of the power conferred upon the Ordinary of Abbeville District for the time being, by the will of Benjamin Beall, deceased; and that he did not divest himself of the trust by paying over the trust fund to E. W. Selleck, his successor in the office of Ordinary.

3. Because if David Lesly was not trustee by his own appointment, as aforesaid, he was by his agreement with the plaintiff, and was liable in that character.

*454. Because if David Lesly was neither trustee by his own appointment, nor by his agreement with the plaintiff, he was, at least, her agent; and his paying her funds to E. W. Selleck without her knowledge or authority did not discharge his liability to her.

5. Because the plaintiff’s demand was not barred by the statute of limitations.

*Jones, Sullivan, Thompson,*for appellant.

*McGowen,*contra.

(a)

*Jasper*vs. *Maxwell,*1 Dev. Eq. 358; 2 Story Eq., § 971.

(a)

 Bail Eq. 198.

(b)

*2*ad. 109.

The opinion of the Court was delivered by

Johnston, Ch.

As the observations of the Chancellor with regard to the liability of Selleck’s sureties were not intended to prejudice any proceedings the plaintiff may institute against them; we desire that the opinion of the Court as to their liability be reserved.

We are satisfied with the result of the decree; and it is ordered that the same be affirmed, and the appeal dismissed.

Dunkin, Daecan and WaRDLAW, CC., concurred.

*Appeal dismissed.*