Liberty advocate. [volume] (Liberty, Miss.) 1835-1866, 1837-01-24

After the most mature deliberalion,
which under the circams.ahcaS We have
been enabled to bestow on this difficult
and intricate question, we have come to
this conclusion, that all causes Of trust
where L. The trust is direct and express
in its character; 2. Where the trust is
direct and technical, and cognizabIe only
in court of equity; and 3. Where the
right is litlgated between the trustee and
ceStueqne trust, are not within the statute
Of limitations.
1t is also well settled rule that where
the trust subsists, being direct one, the
statute will not be adopted in Equity as a
rule of decision, although a concurrent
remedy may exist at law; Cholmondy Us.
Clinton, 2 Mu. $50, 7 J. CHI. R. (l23.)
In England, the Statute does not apply
IN suits in Equity for the recovery Of leg
acies and distributive shares Tor the rea.
son that no remedy exists at law, but il
becomes matter Of serious question
whether we are not bound to modify this
rule in consequence of there having been
a remedy provided at law in this State
Once the subject of Executors and Ad-
ministrators Equity possessed original
and conclusive jurisdiction, and it is con,
tended this as the remedy given at law, lor
the enforcement of their duties is cumuIa-
tive, Equity ought not TO apply the Statute
bar, which would attach in q suit at law
against them.
And it would appear that this view of
the question has been adopted in the State
of New York. In the case of Arden Us.
Arden, q J. ch. Rep. 3l6,) it was held
there was no legal bar by force of the
Statute of limitations to legacy In the
case of De Couche cS. Lavatier, e G. Oh.
K. 2l6) the same doctrine is expressly
recognized.
The learned Chancellor says, 'Tho
administrator, though he may plead the
Statute as against creditor, can never
plead the Statute as bar to a legacy, ana
by purity of reason it would not be appli.
cable in a suit for distrihutiye share"
In the'Stateof South Carolina the same
doctrine has been maintained; 4 DeSS aus
Sare, Reps. 439; it was decided that the
Statute did not apply 10 suit in Equity
against the Executor for legacy. This
case is very strong one, for the suit was
not instituted until after final settlement
of the Estate and delivery TO the heirs.
If these decisions are maiGtanable on
principles of reason and authority, the
objection to the application of the Statute
in suit against the administrator OF an
unsettled Estate must recur with increased
force.
1t is said that it cannot be known when
the Executor is bound to pay the egacio5,
as they arc payable when the Executor
shall have possessed effects sufficient to
pay the debts which may be at an indef-
mite period, q that therefore no time can be
fixed at which the Statute will commence
to run.
lfthis be the true reason Of the will in
relation to legacies, it must apply with
full force in suit brought in Equity, for
the purpose OF compelling an administra-
tor to account and pay over the Estate to
them entitled to it. For the obvious rea,
son that the distributee could not at law
leave his action for distrbutive share un-
til after settlement, although he might
maintain an action on the administration
bond for breach of the condition.
In the case Of an unsettled administra,
ton, the trust remains unexecuted, and
must, therefore, we apprehend, be regar
ded as subsisting between the Trustee
'ceStltpque trust" and can alone be sus-
tanned as between them by bona .fde exc
cution on the trust. But if the trust sub
ssts, no doubt can exist that the Statute
will not attach.
In the case before US, Gayden came into
the Estate of the deceased, as admnistra-
tor, by virtue of his marriage with the
He was therefore the Trustee for
those entitled to the succession, his Office
was a trust, and he could take it in no
other capacity, he failed wholly to dis
charge the duties which the law had i'm -
posed upon him in that character, he did
not even render an account or settle III
any respect with the Orphans Court, and
VI consequence tlGlC Couil NV Hufo pSSu
a legal distribution ofthe Estate.
If Gayden had any right to part of
the Estate which he held as administrator,
it was joint interest with the other dis
and did not authorize him to as.
;umea distinct and separate title to any
specific chattel or separate portion of the
rust fund; the case would have presented
/ different aspect had there been decree
setting apart to him the distributive share |
o which his wife may have been entitled,
or as to the part thus decreed to him, he
would have held not as Trustee, but in
lis individual character. The trust rela
ion, so far, would have ceased to exist.
But by his own act, or rather by gross
Neglect Of duty, injurious to his cestHegne
rust and beneficial to HIMSELF he has pa-