[Present, Chancellors Rutiedge, Mahshaii and James.]

JUNE, 1804.

#### John Ramsay, and Maria his wife, *vs.*William Allen Deas, Executor of John Deas, jun.

The act abolishing' the rights of primogeniture, having a precise day fixed by law for the commencement of its operation, must operate on all cases coming within its scope, on that day.

An executor entering on lands of the estate of his testator, and occupying them, is to be considered as holding them in trust for the heirs or devisees, unless he proves that he held adversely with notice to the heirs or devisees; in which case, the proof lies on him to establish the claim at law, on an issue directed,

JOHN DEAS,jun. died on the 20th October, 1790, possessed of a considerable real and personal estate, leaving alive his wife Maria Deas, andan infant son, John Seaman Deas, and his wife pregnant of a child, who was born soon after, and proved to be a son. A little before his death, to wit, on the 20th October, 1790, he executed his last will and testament, which he left in full force, wherein and whereby he devised, (amongst other things) all his real and personal estate, not otherwise disposed of, to his son John Seaman Deas, and such child as might be born after his decease ; if a son, to be equally divided between them, share and share alike, as tenants in common, and their heirs. But should such child prove to be a daughter, in that case he devised and bequeathed one third of his estate to such child and her heirs, and the remaining two thirds to the said John S. Deas. He bequeathed his *234bouse servants, furniture, &c. to bis wife for life, with *the*remainder to his son J.- S. Deas. He desires the planta-don called Thorowgood, which he had contracted to purchase, should be, actually purchased; and he gives a life ■ estate jn jt to pjs xnother, and the use of it after her death,, to his wife, during the minority of the children. He also demised as follows : That if he,, the testator, should die without male issue, or if said JohnS. Deas, or such other male issue should die under the age of 21 years, he gave and devised the whole of his real estate to such posthumous daughter, her -heirs and *assigns;*and in like manner, h'e gave and bequeathed to her a moiety of Ms personal estate ; the other moiety of his personal estate,, he in such case, gave and bequeathed to his wife for ever. — • And on said J. S. Deas coming of age, he directed a house to be built on Mount Holly, for" the accommodation of his wife. And if he should die without male issue, or *should*such after bom child prove a daughter, in that case, he gave and devised Thorowgood and Mount Holly estates-to his brother W. A. Deas, his heirs and assigns.

And he appointed his wife, Mr. Archibald Brown, and his eldestbrother (Mr. W. A. Deas) executors of his will. They all three qualified as executors on the will. -

That on die 23d October, 1790, the widow was delivered of a child, who proved to be a son. , The eldest son John Seaman Deas, died in November, 1790, an infant, unmarried and *intestate;*and some time in the year 1792, the posthumous child died', an infant, unmarried and intestate.

After the death of the testator, Mr. A. Brown and the said W. A. Deas possessed themselves of the real estate,, and received the rents and profits thereof; and after the death of the posthumous son, the -widow and the two executors sold all the personal estate, (except what was specifically bequeathed to Mrs.- Deas for life) and part of the real estate of testator, and the two executors received the money and specialties.

*235Mr. Brown, tbe executor, died in the year 1797, and the said Wm. A. Deas possessed himself of the real estate unsold, and received the rents and profits, and possessed himself of all the monies and specialties.

Mrs. Deas afterwards intermarried with Dr. John Ramsay.

Upon this state of facts, Dr. John Ramsay and wife filed their *bill of*complaint, claiming the whole real and personal estate devised by the said John Deas to his two sons, both of whom Mrs. Deas survived, and requiring an account from Mr. W. A. Deas. The complainants insisted that by the operation of the statute of Feb. 1791, abolishing the rights of primogeniture, and for other purposes, the wholé estate vested in her, on the death of her' two sons, the devisees of their father Mr. John Deas.

The answer of Mr. W. A. Deas admitted all the facts charged, but denied the conclusions drawn from them by the complainants. He denied the complainants right to the estate, and insisted that ever since the death of his nephew, the posthumous child of testator, he had been iu the peaceable possession in his own right of all such parts of the real estate of said John Deas, as was not sold, and submits to the court whether the residue of the specialties arising from the sale of the lands, made by the executors, should not, (after payment of debts) be considered as real estate. And thatif the complainants ever had any right or title to any of the real estate of said John Deas, (which however, he denies,) he contended they were barred *thereof;*and he prays the benefit of the statute of limitations.

At the hearing, it was insisted for the complainants, that on the death of John Seaman Deas, the eldest son of the testator, in November, 1790, the estate he was entitled to went to his brother, the posthumous son, either by the devises in the will, or by descent, according to the common law; the statute altering the law, not then having been enacted. And that on the death of the posthumous son, an infant unmarried and intestate, in July, 1792, af* *236ter the passage of the act abolishing the rights of primogeniture, and of the time fixed for the commencement of *ts °Peratt°Pj (1st May, 1791) his mother, the complainant Maria, became entitled by the provisions of that statute to t^e wbole estate. That the devise to W. A. Deas, was upon contingencies which had not occurred *;*for the testator did not die without issue male, his son John S. Deas being living at his death: and the child with which his wife was pregnant, did not prove to be a daughter, but a son. And that the executor W. A. Deas, having entered on the real estate, and possessed himself of the personal, as executor, he could not set up his possession after the death of the posthumous child (in 1792) as an adverse possession,-so as to entitle himself to the benefit of the statute of limitations. Thai executors do in this country constantly enter upon the lands of the estates of their testa-? tors, *ex*necessitate, from the blended nature of the real and personal *estate;*lands,, which are real, with negroes, which are personal, placed on them for cultivation ; and this entry and occupation must be considered, not as a trespass or adverse, but confidential, and in trust for the heirs.

For the defendant, it was insisted that upon the true construction and intention of the will, if the two children of the testator died under 21 years of age, the defendant was to take the real estates of Thorowgood and Mount Holly. But that if the defendant did not take under the devise, he was entitled as heir at law to the posthumous child. That the law abolishing the rights of primogenir ture did not operate upon cases of this kind, where the wills of testators were executed prior to the passage of the 'law *;*and upon failure of the provisions of the will, a descent took place, and the estate should rightfully go according to the ancient law.

That on the death of the posthumous son, in July or August, 1792, the defendant considered the estates as his .own, and treated them as such j occupying them in his own right, renting them out, receiving and appropriating *237the profits to his own use, until the filing of the complainants bill in Sept. 1801.

That however his original entry on the land might be, on account of the children, yet after their death he claimed it as his own, and held adyersely to all other and his acts manifested this to the world, and particularly to the widow, and those acquainted with these transactions. This entitled him to the benefit of the statute *of*limitations.

The court took time to deliberate, and Chancellor Rutledge delivered the decree of the court.

Upon a fair construction of the will of J. Deas, nothing can be more clear and manifest than that the testator never intended his wife should possess any part of his real estate, except a life estate in Mount Holly, on which he directed a house to be built for her accommodation on a certain contingency. It is also as clear that had not the law for abolishing the right *of*primogeniture interfered, the defendant, upon the death of testator’s children, during minority, would have been entitled to his real estate. The act abolishing the right of primogeniture, passed since the testators death, and also the amendatory act, have made a total alteration in the law, both as to real and personal estates, by making the father or mother of an intestate child capable of taking the real estate, particularly in exclusion of those who were formerly entitled to it. We wished to have restricted the operation of the law to such wills as had been made after it passed, because it was impossible for persons who had made wills previous thereto, to guard against the inconveniences of such alter-tions as might be made in the general law, on the subject, and to have excluded its operation in cases of intestate infants who are by law incapable of disposing of their estates; but the time for the commencement of the operation of the law being fixed to a day, the court have no discretion; and however hard we may think the defendants case to be, such is the law; by it must our decisions be governed, In the sixth clause of the will, testator says, if I should *238*die*without male issue, or should such after born child prove a daughter, in that case I give, devise, &c. Thoro-f 800<^ lind Mount Holly estates unto my brother, W. A. Deas, his heirs, &c. Neither of these contingencies hap-p.;nec^ for he not die without male issue, which according to legal construction must be confined to a dying without leaving male issue at his death ; and the posthumous child did not prove to be a daughter. The consequence then is clear that the devise to defendant could not take effect, and the mother under the law before mentioned (as it then stood) became entitled to the whole estate devised tp her children who died infants • and intestate : No person being designated by the amendatory law to take the part which is therein directed tp go to the brothers and sisters.

In opposition to complainant’s demand respecting the-lands, defendant has pleaded the limitation act in bar thereof. If he had proved an adverse possession in Mount Holly, the court would have directed an issue for defendant to establish his title at law by the verdict of a jury; but as it is evident that the defendant being an executor, got possession of the estate in that character, the court cannot view him in any other light than as a trustee for the devisees, which circumstance alone would give this court ajurisdiction in the case of claims to land, for otherwise the question being merely, as to the validity of a title by possession, it is properly determinable in a court of law. (^Considering defendant therefore as a trustee, in which case the limitation act will not avail him, his plea must be overruled. *J-*Defendant must therefore account for the estate of his testator before the master, namely, the rents and profits of Mount Holly, the bonds which were taken for lands sold, and also the personal estate. Also that he deliver up to complainant all the deeds, evidences and writings relative to Mount Holly tract.

Afterwards in October, 1804, a motion was made for a bill of review, before Chancellors Rutledge and Mar-*239Shall — which was argued, and the court finally directed an issue at law, wherein W. A. Deas should be pith,riff, and Dr. John Ramsay and his wife, defendants,- to ascertain whether.the plaintiifhas had quiet, peaceable, andun-interrupted possession of the Mount Holly lands, or any, ánd which part thereof, for five years before the filing of the complainant’s bill, with notice to the said complainants, ^defendants in the issue directed at law) of such possession.

Messrs. Parker, Gaillard,'Pringle, for complainants.

Messrs. D. Deas, Ward, Smith, for defendant.

On the trial of this issue at law, the plaintiff in the issue, W. A. Deas, went into proof of his adverse possession of the Mount Holly lands, and the jury found a verdict for the plaintiff, establishing his title ; which verdict was af-terwards supported by the *court*— (ex *relatione.)'*