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

s9thls proceeding.
n. There appears also to be misceptiol
as tothptpark ~ The bill in relation 10 tn,
slave MaPiaH, lpk there is no prayer t
charge the defendant in respect to her
eparate pfcFeftyis asserted on the par
of Mahaletothis negro, and it is charged
as an actei bad faith in Gayden 10 have
incorporated her with the distributive pro
pcrty Of the deceased, as it is alledged he
knew Of the existence Of her claim, lfa
separate right exists on the part Of this
complainant, her remedy must be in an
other forum. 1t appears probable tina
1this incident could only have been intro
ducedr to give colorto the charge Of bad
faith. The prayer Of discovery in regurd
TO Marian is foreign to the bill. From
!. bltls view of the subject the demurrer must
tbe held to apply (and so far susainable)
1i6 those portions Of the bill which seek
]discoyery inregard to Marian, and which
1seek to make the appellee liable on his
guardian bonds. The Chancellor should
have dismissed thus far.
The questions arising upon the defend
ants plea of the Statute of Limitations as
applicable to the state of facts disclosed by
( the blare attended with some embarrass-
imenl, surrounded as they are with diff
Guilty and involved in uncertainty.
! The relation which subsisted between
the parties, complainant and defendant,
are obviously of trust character, and
though direct in its nature cannot be said
exactly to conform to the incidents Of a
purely technical trust, which is a crea-
ture of a court Of equity, and in no wise
to be affected by the state of limitations.
And as il is contended that the trust here
Is not purely of technical character,
although a direct, the allegations Of the
bill shew state of facts which must make
the statute applicable as rule of decis-
ision in this court.
1t appears from the bill that letters Of
administration were granted to Mrs. Col
Inns, the widow of the intestate, by the
Orphans Court of Wilkinson county, in
the latter part of the year 1904, and that
the appellee shortly afterwards ntermar-
ried with her; thus acquiring the right of
administration of the estate and to the
possession of the intestates personal et-
fects, the whole of which went into his
possession.
No account was rendered or settlement
made with the court having cognizance
of the matter by the administration ante
rior to her marriage with Gayden, or sub
sequently by Gayden and wife, or either
of them.
1t is also apparent that no valid parti-
ton or distribution Of the estate among
the distributes was ever made; and it is
expressly stated in compliments bill that
Gayden, by his marriage with the admin
istratrix, and by virtue of the division
before adverted to, claimed title to the fol-
lowing slaves, viz :-Plim, Betty, Caroline,
Frank, Mary and Sal: these slaves, con-
shutting together with feather bed, chest
and trunk, the distributive portion assign
ed to him and wife at that division.
1t is insisted that the relation of trust
and ciSteque trust was dissolved by the
event above recited. That from the time
Gayden claimed the property so set apart
to him and wife in his own right, and con.
sequently held adversely to any right
which the distributes of Collins may
have asserted to the same property, and
that as the relation which had subslsted
between the parties was not of purely
technical nature, and as court OF law hav-
ing concurrent jurisdiction of the highest
matter litigated in this suit, the statute of
limitations should not be held to bar the
recovery sought.
tits admitted that some of the Incidents
inherent in the origin Of trusts Of a purely
technical character, do not attend the in
ception Of the relation between the admin
istrator and the distributes of his intes-
tates estate. Yet this reasoning must be
considered unsatisfactory, if upon inquiry
it shall be found that the trust continues
to subsist between the administrator and
distributee in case where he has not dis
charged himself of his trust duties by fully
administering the effects Of his intestates,
INAdif there shall not exist at law a rem
/ I'll fiectiyeto subserve theends ofjustiee.
ES appears to be well settled that
ssprts 81 plsy, where there is I. compe
tent legal N6ledy and an equitable meth
ia pg faaFess Nth respect to the same
Isliblcci win applythe same stat
llse bar ftegs which courts. Of law
ought ID intefpose I'll NJ former 2 Atkins,
240. kahe VI Blood kood, Z J. CHI Rep.