#### J. H. Read, Jr., Adm’r, *vs.*J. H. Read, Sr., and others.

J. H. and M. TV., prior to their marriage in 1811, executed a settlement, •whereby M. TV. conveyed her land and negroes to two trustees, in trust, *inter*alia, that upon the death of either husband or wife, the property should be held to the joint use of the survivor, during his or her life, and the children of their marriage. 3VI. TV. died in 1817, leaving J. H. and four children of the marriage, two of whom died in infancy, one at the age of five and the other at the age of eight years. J. W., another of the children died in 1851, and this bill was filed by his administrator and the surviving child, against J. H. for an account of the rents and profits of the trust estate. Both the trustees were *dead:*— Held, that representatives of the survivor of the trustees were necessary parties to the bill; and, also, that representatives of the two children who died in infancy should be made parties.

BEFORE DARGAN, OH., AT CHARLESTON, JUNE, 1854.

Dargjan, Oh. On the 18th July, A. D. 1811, a marriage being about to be solemnized between J. Ilarleston Bead, Sr., and Mary Withers, a deed of marriage settlement was executed by them, by which they conveyed to Bobert E. Withers and Francis Withers, their heirs, executors, and administrators, a plantation on Winyaw Bay, in the District of Georgetown, and eighty slaves, (which land and negroes are particularly described in the said deed, and all being the estate of the said Mary Withers in her own right, and then in her possession,) in trust for the use of the said Mary Withers, until the solemnization of the marriage; “ and from and immediately after the solemnization of the said intended marriage, upon the further trust and confidence that they, the said Francis and Bobert Withers, their heirs, executors, and administrators, shall well and truly permit and suffer the said John II. Bead and the said Mary Withers to have the use, occupation, and enjoyment of the said lands and slaves, herein and hereby intended to be conveyed, and the future issue and increase of the female slaves, during their joint lives, and for their joint use; and to *146have, receive, and take the rents, issues, profits, and proceeds thereof, but so that the said lands and slaves, and the said rents, issues, profits, and proceeds thereof, should not be subject to, or be liable for the debts of the said John H. Read; and in case of the death of the said John II. Read, or Mary Withers, (whichsoever may first happen,) without leaving issue of the said intended marriage, then upon the further trust and confidence that they, the said Robert and Francis Withers, their heirs, executors, and administrators, shall stand seized and possessed of the said lands and negroes, and the future issue and increase of the females, to and for the use of the survivor of them, the said John H. Read and Mary Withers, his or her heirs and assigns forever, and shall reeonvey and be discharged from any further trusts or limitations whatsoever; but in case of the death of the said John H. Read, or Mary Withers, leaving issue of the said intended marriage, then upon this further trust and confidence, that the said Robert and Francis Withers, their heirs, executors, or administrators, shall stand seized and possessed of the said lands and negroes, and the future issue and increase of the females, to and for the joint use of the survivor of them, the said John II. Read and Mary Withers, during his or her natural life, and the children of the marriage; and from and immediately after the death of the survivor, (in case the said John H. Read shall survive the said Mary Withers,) in trust for all and singular the said child or children of the said intended marriage, his, her, or their heirs and assigns forever. But in case the said Mary Withers should survive the said John H. Read, then in trust (as aforesaid) during her natural life; and from and immediately after her death, in trust for all and singular the children of the said Mary Withers, his, her, or their heirs and assigns forever, freed and discharged from all other trusts and limitations whatsoever. But in ca.se any child or children, hereinbefore provided for, should happen to die during the lifetime of the said John H. Read or Mary Withers, leaving issue, such issue shall imme*147diately become entitled to the share or portion of said lands and negroes to which his, her, or their parent or parents may be entitled to, at his or her death.” Then follows a provision for a sale of all or any of the slaves, with a condition that the proceeds of the sale should be vested in other property, to be held by the trustees, subject to the same trusts and limitations, &c.

Shortly after the execution of the deed the marriage was solemnized, and John H. Read and Mary his wife went into the possession of the said lands and negroes. They continued in the joint use and enjoyment of the same until the month of May, 1817, when Mary Withers Read departed this life, leaving the said John H. Read surviving her. There were born of the marriage the following children: Sarah Ann, born in 1812, who died in September, 1817. William was two years younger, died in September, 1822; John Harleston Read, Jr., born July, 1816; and James Withers Read, born May, 1817— his mother died at the time of his birth. I will remark in this connection, that in reference to the births and deaths of the children of this marriage, the statement of the defendant, John Harleston Read, Sr., in his answer, is fully sustained in every particular by the evidence of II. A. Desaussure, Esq., who was an intimate friend of the family. James Withers, w7ho attained his majority in 1888, died intestate, in June, 1851, leaving surviving him his wife Caroline Laurens Read and three infant children, namely, John Laurens Read, Mary Withers Read, and Caroline Ball Read. Caroline Read, the widow of James Withers Read, intermarried with John W. Maffitt, 2d August, 1852. The trustees of the marriage settlement have long since departed this life, and John Harleston Read, Sr., has ever since the death of his wife been in the sole possession of the trust estate, and the enjoyment of the rents and profits. He has accounted for, and paid no part thereof, to any of the children or issue of the marriage; and the latter have received *148no benefit therefrom, except such education and maintenance as they have received from J. Harleston Read as their father.

The plaintiff, J. Harleston Read, Jr., who is the only surviving child of the marriage, has been duly appointed the administrator of the estate of his deceased brother, James Withers Read; and renouncing all claim for an account against his father in his own behalf, he has filed this bill against the said J. Harleston Read, Sr., for account of said estate, and for such share of the rents and profits thereof as his intestate may be entitled to, under the provision and limitation of the marriage settlement deed. The defendant, J. Harleston Read, Sr., has answered, and denies all liability to account. The plaintiff has made the widow of James Withers Read and her present husband, John Maffitt, parties defendant to the bill; as also the children of the said James Withers Read. They have answered, and concur in the general allegations of the bill and the prayer for an account.

I do not think there can be a serious doubt but that the plaintiff’s estate was entitled, by the terms of the deed of marriage settlement, to a share of the rents and profits of the trust estate: for it is expressly declared, that “on the death of Mrs.' Read, the said J. Harleston Read surviving, the estate shall be held in trust for him, and all and singular the child'or children of the marriage, his, her, or their heirs and assigns forever.”

I incline to the opinion that, as to the real estate, (but not as to the personalty,) all the trusts created by this deed were, at the death of Mrs. Read, executed by the Statute of Uses- “ There are three circumstances necessary to the execution of a use by this statute; 1st, A person seized to the use of some other person; 2d, A *cestui que*use *in esse ;*and, 3d, A use *in esse*in possession, remainder, or reversion.” 1 Cruise Dig. 412; *Hartón*vs. *Hartón,*7 Durn. & East, 652; *Jones*vs. *Say ‡ Scale,*1 Eq. Ca. Abr. 382. These three circumstances concur in this case. During the life of Mrs. Read, the uses *149remained unexecuted, because that was necessary to the preservation of the separate estate, otherwise the marital rights would have attached, and one of the principal intents of the settlement would have been defeated. Where the three circumstances above mentioned concur, in the question as to the execution of the uses by the statute, the test always is, whether the trustees have any other duties to perform, or whether there be any important or necessary purpose to be subserved by the continuance of the trust? If this question be solved in the negative, then the uses are executed. If in the affirmative, the trust continues, that the trustee may be able to perform his duties, and the beneficiaries of the trust have only an equitable estate, enforcible against the trustees. In *McNish*vs *Gruerard,*4 Strob. Eq. 74, it is said by the Circuit Chancellor, (whose decree in this respect was affirmed,) without going specially into the cases, it may be laid down as the result of them, that where he to whom a conveyance is made, has some duty to perform, for the perfect performance of which, it is necessary that the legal estate be in him, the statute does not apply. He shall be regarded as vested with the legal title; and the person interested in the performance of the duty required, with an equity which he may enforce against him in respect to the legal estate thus held by him. This is a trust, and not a use executed. In this case, the land in question was conveyed to John McNish, “as trustee of his eight children, (who were named,) and in trust for said children, and such other children as may be born of the body of Ann McNish, wife of John McNish, to be divided among them equally, share and share alike; and until such division takes place, to be occupied and used entirely and specially for the support and maintenance of the said children.” The Court decided that the legal estate vested, not in John McNish, who was named as the trustee, but iu the existing children of Ann McNish, subject to open and admit such other children as she might have.

But it does not appear to-me to be-of any importance to *150decide this question. Eor either as legal or equitable owners of a joint estate with J. Harleston Eead, Sr., as to the land in question, the children of Mrs. Mary Eead are entitled to an account from him, he having received all the rents and profits to himself. Under either view, the result would be the same : the question could not arise as to the negroes, as trusts of personal estate are not embraced in the provisions of the Statute of Henry 8.

But the defendant, J. Harleston Eead, Sr., has interposed the plea of the Statute of Limitations, and set up the same as a bar against any claim for an account, except for four years prior to the death of the said James Withers Eead, and the plea must be sustained.

James W. Eead attained his majority in May, A. D., 1888, and died on the 28th June, 1851. He slept over this claim without prosecuting it for nearly thirteen years after the disability of infancy ceased to exist. I cannot imagine a reason why the plea of the statute should not prevail.

There is another branch of this case, to which I must now direct my attention. Sarah Ann Eead, who died in September, 1817, and William Eead, who died in September, 1822, both after the decease of Mrs. Bead, their mother, had vested estates in the said property, with the present right of enjoyment to the extent of their interest. *Sarah Ann*was *entitled*to *one-fifth*of the annual rents and profits, and *William*was also *entitled*to the *one-fifth*of the rents and profits, and to *one-fourth*of *Sarah Ann’s share.*Their shares in the rents and profits, and their shares in the *corpus*of the property when that should be divided, constituted the estates of Sarah Ann and William Eead respectively. The plaintiff has also prayed an account of the defendant, J. Harleston Eead, Sr., for the shares to which his intestate was entitled in the estates of his said deceased brother and sister.

The said defendant pleads and insists that this is a stale demand, and must be considered.as satisfied by presumption of *151payment arising from the lapse of time; and so it would be, if the whole of this claim had subsisted twenty years or more before the filing of the bill; and as to so much of the claim as has existed for twenty years, it may be disposed of in favor of the defendant on that ground. But I cannot perceive how that doctrine can apply to so much of the account as has accrued within twenty years, and particularly as to that which has only accrued within a few years past, some of which was only due on the 1st January last. I think it is obvious, that so much of this account as has fallen due within twenty years, cannot be got rid of by presumption of payment arising from the lapse of time.

But the defendant has also pleaded the Statute of Limitations : and it remains to be considered whether the statute is applicable. The only plausible ground on which the plea of the statute could be evaded is, that upon the estates of Sarah Ann and William Read, there has never been any administration ; and that, in the absence of a legal representative who alone is entitled to sue, the operation of the statute is suspended. The rule is strictly true in a Court of Law, but in this Court there are exceptions.

Sarah Ann Read died at the age of about five years, and William at about the age of eight years. Prom *their tender*years, the Court will presume that *they oived no debts;*and in such cases it has been held, that the distributees may proceed in this Court without an administration. Walker, *Adm’r,*vs. *May,*Bail. Eq. 66. The plakitiff’s intestate might, therefore, have sued for his share of those estates at any time before his death. There was no disability. At least, if he can maintain his claim in this suit, he could have done so at any time before this after their death, for there is still no administration. If he was entitled to bring his suit, (as he has now,) the statute would run. I hold that the plea of the Statute of Limitations is a bar to the plaintiff’s claim, except for four years prior to his intestate’s death. It is ordered and decreed, that the plea *152of the Statute of Limitations be sustained against all the claims of account set up by the plaintiff in his bill against the defendant, J. Harleston Read, Sr., as well as regards the original share of James Withers Read, in the rents and profits of the said trust estate, as for *his share of the estates of Sarah Ann and William Read,*(arising to them from the said rents and profits,) except for four years previous to the death of the said James Withers Read, and the rents subsequently accruing.

It is ordered and decreed, that so far as the claims set up by the plaintiff are covered by the plea of the Statute of Limitations, the bill be dismissed.

It is ordered and decreed, that the plaintiff is entitled to an account in behalf of his intestate’s.estate, as to the rents and profits of the said trust estate, for four years prior to the said intestate’s death, that is to say, from the year 1847 inclusive, and as to all the rents and profits that have subsequently accrued ; and that one of the Masters do take such account, and report thereon.

It is further ordered and decreed, that in stating such account, the said J. Harleston Read, Sr., be allowed to set up, as discounts, any sums of money which the said intestate’s estate may be justly'owing to him, on any account whatsoever; and that the Master strike a balance.

Appeals were taken by the plaintiff, and some of the defendants.

*Simons,*Mitchell, for appellants.

-, contra.

The opinion of the Court was delivered by

Wardlaw, Ch.

We have attained the conclusion in this Court, that this case is not ripe for adjudication until other parties be made; and we desire to be as reticent as practica*153ble of our opinions on the questions in the cause until all the interests of the parties may be fully concluded by-our judgment.

Whether under the marriage settlement in this case, the trusts of the land were executed or not in the beneficiaries upon the death of Mrs. Read, (which is not determined by us), it is clear that the legal estate in the personalty abided in the trustees and their representatives, and that these representatives, or at least the representatives of the survivor of the trustees, are necessary parties to a litigation involving partition, perhaps of the corpus, certainly of the income of the personalty. If these representatives be necessary parties as to the personalty, they are proper parties as to the realty, as to which the extent of their estate and their consequent liability are directly involved. Where real and personal estate are conveyed to the same person by the same words in a single clause, or by the same words in different clauses of one instrument, this constitutes some reason for giving the same construction as to both descriptions of estate. *Genery*vs. *Fitzgerald,*1 Jacob.

We consider it safer, too, that representatives of the infants, Sarah Ann and William, be brought before the Court. That these children had some vested interests under the settlement can hardly be disputed, but the extent and the devolution of these interests may be disputable, and representatives of these interests are proper. It can scarcely ever be affirmed of decedent infants having estates, that they can owe no debts, at least, for the expenses of their last illness, and of their burial. The cases of *Thompson*vs. *May,*Riley’s Eq. Ca., 33, and *Marsh*vs. *Nail,*Rich. Eq. Ca., 115, stand on their peculiar circumstances; and for the reasons assigned in *Petigru*vs. *Ferguson,*6 Rich. Eq., 378, it is the better course to require the representatives qf infants to be before the Court in contesta-tions concerning their estates.

*154It is ordered and decreed, that the Circuit decree in this case be set aside; and that the plaintiff proceed with convenient dispatch to make representatives of the surviving trustee of the marriage settlement, and of Sarah Ann and William Read, parties to this suit.

It is further ordered that the cause be remanded to the Circuit Court.

JoiinstoN, Dunkin and Dargan, 00., concurred.

*Oase remanded.*