become obscure, or the acts of the parties and other circumstances create a presumption against it, a court of equity will decline to interfere: Taylor v. Blair, 14 Mo. 437; Whedbee v. Whedbee, 5 Jones Eq. 392. Thus in a Pennsylvania case when, after a delay of seventy years, a bill was brought for an accounting for certain stocks, which had been sold in trust for a person who was then dead, who knew the facts, but never set up any claim under the trust, the court refused to interfere: Halsey v. Tate, 52 Pa. St. 311; and see Robertson v. Macklin, 3 Hayw. 76; Gregg v. Gregg, 15 N. H. 190. In Provost v. Gratz, 6 Wheat. 481, it was said that after the lapse of forty years, and the death of all the original parties, the true and safe course of a court of equity in relation to a trust proved by strong circumstances to have once existed is to abide by the rule of law which, after a lapse of time, will presume payment of the debt, surrender of a deed, and extinguishment of a trust, where circumstances may reasonably justify it. And see Perkins v. Cartmell, 4 Harr. (Del.) 270, where extinguishment of the trust was presumed after twenty years' adverse holding. A bill by one of the next of kin of an intestate filed forty-six years after he had become of age, more than fifty years after the death of the intestate, and thirty-five years after the death of the surviving administrator, was held to be barred by the lapse of time: Graham v. Torrance, 1 Ired. Eq. 210. But in Anstice v. Brown, Paige, 448, a bill by a cestui que trust against the trustee to enforce the trust filed within twenty years after an admission of the trust in writing by the trustee, and within six years after a sale of the trust property by the trustee, was held to be in time. It is held, however, that a court of equity will refuse to interfere where there has been a clear breach of trust, and the cestui que trust has for a long time acquiesced in the misconduct of the trustee, with full knowledge of the breach: Broadhurst v. Belgany, 1 Younge & C. 28.

INSTANCES OF VARIOUS TRUSTS WHICH ARE OR ARE NOT WITHIN OPERATION OF STATUTE OF LIMITATIONS.-It has been our endeavor in the preceding part of this note to present the rules governing limitations between trustor and trustee. In the subdivisions following, we have collected and classified, as far as possible, the large number of cases in which particular trusts have been held to be within or without the operation of the statute of limitations. Agents, Factors, etc. -The relation of an agent to his principal is fiduciary in its nature, and if the party acts as a general agent or factor, with no stated time for accounting, the relation is rather that of trustee than of debtor, and the statute of limitations will not run until an account has been rendered or a demand therefor made: Topham v. Braddick, 1 Taunt. 572; Clark v. Moody, 17 Mass. 144; Sawyer v. Lappan, 14 N. H. 352; Hutchins v. Gilman, 9 Id. 360; Murray v. Coster, 5 Johns. Ch. 531; Baird v. Walker, 12 Barb. 298; Taylor v. Bates, 5 Cow. 379; Davy v. Field, 1 Abb. App. 490; Hays v. Stone, 7 Hill, 128; Paschall v. Hall, 5 Jones Eq. 108; Krause v. Dorrance, 10 Pa. St. 462; Parris v. Cobb, 5 Rich. Eq. 450; Estes v. Stokes, 2 Id. 133; Hopkins v. Hopkins, 4 Strob. Eq. 207. The principle here involved is, that the principal has no right of action, but merely an equitable right to an account, until demand, and hence either a demand must be proved, or a reasonable time within which to presume a demand must have elapsed: Stamford v. Tuttle, 4 Vt. 82; Collard v. Tuttle, 4 Id. 491; Raymond v. Simonson, 4 Blackf. 77.

Where, however, the agency is special, the statute attaches upon the consummation of each transaction, or the accrual of each item: Hopkins v. Hopkins, 4 Strob. Eq. 207; for it is the duty of the agent to account at once, and an action will lie without a demand.

In the case of an ordinary collecting agent, whose duty is to receive and

pay over money to his principal, the tendency of the courts is to hold that the statute begins to run immediately, regardless of whether a demand has been made, unless the agent has fraudulently concealed the fact of the receipt of the money by him: East India Co. v. Paul, 1 Eng. L. & Eq. 44; Cogwin v. Ball, 2 Ill. App. 70; Emmons v. Hayward, 6 Cush. 501; Campbell v. Boggs, 48 Pa. St. 524; Estes v. Stokes, 2 Rich. 320; Hopkins v. Hopkins, 4 Strob. Eq. 207; Lawrence v. Smith, 32 Wis. 587; or in any event, after a reasonable time in which to notify his principal: McDonnell v. Montgomery Bank, 20 Ala. 313; Hickok v. Hickok, 13 Barb. 632; Mitchell v. McLemore, 9 Tex. 151.

Where money was deposited with an agent to be loaned or invested, and no time for accounting was specified, it was held that the agent need not account until demand, and that the statute did not begin to run until then: Jeseph v. Baker, 16 Cal. 173; Hart's Appeal, 32 Conn. 520.

In the case of a factor residing in another state, it has been held that he is not liable to an action until a demand, and hence that the statute will not run until then: Green v. Williams, 21 Kan. 64; Murray v. Coster, 5 Johns. Ch. 522. But it is said that if a demand is inconvenient, as where one is sent abroad to sell goods, with directions as to the mode of remittance, the statute would be held to run after a reasonable time: Clark v. Moody, 17 Mass. 145. Partners. Partners are trustees for each other, and the statute of limitations will not run against their liability to account to each other during the continuance of the partnership: McNair v. Ragland, 1 Dev. Eq. 533; Hammond v. Hammond, 20 Ga. 556. Whether the statute commences to run immediately upon a dissolution depends on the facts of each case: Massey v. Tuigle, 29 Mo. 437. If the dissolution winds up the concern, and there are no further dealings between the partners, the statute, of course, runs at once. But where one partner is authorized by the agreement, upon dissolution, to carry on the business, so as to dispose of the firm assets, the trust continues, and the statute does not run: Causler v. Wharton, 62 Ala. 358. It is held that upon death of a partner, the statute runs at once: Leakey v. Leakey, Prec. Ch. 518; Knox v. Gye, L. R. 5 H. L. 674; Weisman v. Smith, 6 Jones Eq. 124.

Executors and Administrators.Executors and administrators are direct trustees of the property of the decedent for the heirs or representatives, and cannot, as against them, set up the statute of limitations so long as the relation exists: Arden v. Arden, 1 Johns. Ch. 314; Durden v. Gaskell, 2 Yeates, 271; Dillenbaugh's Estate, 4 Whart. 177; Decouche v. Savatier, 3 Id. 316; Norris's Appeal, 71 Pa. St. 106; Ward v. Ruder, 2 Hen. & M. 154. The relation terminates with the dismissal of the executor or administrator, and the statute begins to run in his favor from that date: Jacobs v. Pou, 18 Ga. 546. Until then an action to compel a settlement by the administrator is not within the statute: Brinkley v. Willis, 22 Ark. 1; Grant v. Hughes, 94 N. C. 231. An executor does not cease to be a trustee upon the settlement of his accounts in the probate court, but will, if assets are left in his hands, continue to hold them for the purposes of the will as trustee: Thompson v. McGaw, 2 Watts, 161; unless he at the time denies that anything is due, in which case his holding is adverse, and the statute begins to run: Dreisbach's Appeal, 2 Rawle, 287; Dabler v. Snavely, 5 Watts, 225; Webster v. Webster, 10 Ves. 93.

.

A legacy is not necessarily held as a trust: Dunden v. Gaskell, 2 Yeates, 271; but it may be so held, and the legatee will not then be barred by lapse of time: Phillips v. Munnings, 2 Mylne & C. 309. Where an executor sets apart and appropriates a specific sum to satisfy a legacy, he is considered to

have changed the character of executor for that of trustee: Byrchall v. Bradford, Madd. & G. 13; Dix v. Burford, 19 Beav. 409; Brougham v. Poulett, 19 Id. 133; Tyson v. Jackson, 30 Id. 304. In Dix v. Burford, supra, an executor apon trust had assented to a specific legacy, and it was held that the legacy thereby became clothed with a trust. When a legacy of the residue or remainder of an estate is given, it is held that the executor becomes a trustee as soon as the residue is ascertained: Willmott v. Jenkins, 1 Beav. 401; Davenport v. Stafford, 14 Id. 319; Bullock v. Downes, 9 H. L. Cas. 1; Ex parte Dover, 5 Sim. 500. If an executor holding a legacy give notice to the legatee that unless it is claimed he will not pay it, this will be treated as a disavowal of the trust, and the statute will commence to run: Robson v. Jones, 27 Ga. 266; Lewis v. Castleman, 27 Tex. 407; Coleman v. Davis, 2 Strob. Eq. 334. Long delay in making a demand for a legacy may raise a presumption, if the party knows of his rights, that it has been paid or that the legatee relinquished his claim to it: Higgins v. Crawford, 2 Ves. Jr. 572; Parker v. Ash, 1 Vern. 256; Thompson v. McGaw, 2 Watts, 161. Each case depends, however, on its peculiar circumstances, and where a party is ignorant of his rights, an account will be decreed after a considerable time has elapsed: Pickering v. Stafford, 2 Ves. Jr. 584; Jones v. Tuberville, 4 Bro. C. C. 114; Dean v. Dean, 9 N. J. Eq. 425. In Peacock v. Black, 4 Id. 61, where a bill to recover a legacy to a married woman was filed thirty-one years after the testator's death, twenty-four years after the settlement of the estate, and seventeen years after the death of the executor, and no cause for delay was shown, the bill was dismissed on the ground of presumption that the demand had been paid, arising from lapse of time.

Executors are not regarded as trustees for the creditors of the estate, and a mere bequest to the executor in trust to pay debts, or a mere direction in the will that the executor pay the debts, does not create a trust: Oughterlony v. Powis, Amb. 321; Proud v. Proud, 32 Beav. 324; Scott v. Jones, 4 Clark & F. 382; Blakeway v. Strafford, 3 Penr. & W. 373; Andrews v. Brown, 3 Prec. Ch. 385; Anonymous, 1 Salk. 154; Burke v. Jones, 2 Ves. & B. 275; Lewis v. Ford, 67 Ala. 143; Parker v. Cater, 8 Tex. 318; nor will a testamentary provision that a debt barred by the statute be paid create a trust: Smith v. Gillette, 59 Id. 86; nor a provision authorizing debts to be paid, and empowering the executors to compound, compromise, submit to arbitration, or otherwise settle the same: Bloodgood v. Bruen, 4 Sand. 427. But where a testator creates a trust for the payment of certain creditors, naming them, it has been held that the executor holds as trustee: Williamson v. Naylor, 2 Younge & C. 210, note. A mere power in gross to sell realty for the payment of debts will not create the executor a trustee for the creditors: Dickinson v. Teasdale, 14 De Gex, J. & S. 52; Hubbard v. Epps, 9 Baxt. 231. But it has been held that where realty is not regarded as assets in the hands of the executor or administrator for the payment of debts, such a devise will suspend the operation of the statute as to all debts not barred at the testator's decease: Burke v. Jones, 2 Ves. & B. 275; Scott v. Jones, 4 Clark & F. 382. An express testamentary trust for the payment of debts will not revive the statute as to debts which are barred, but may suspend the statute as to debts which are not barred, at the testator's death: Agnew v. Tetterman, 4 Pa. St. 56. Where a debtor promises that if the creditor will wait, he shall be paid from a provision to be made for him in the debtor's will, and the debtor makes such a will but afterwards revokes it, it is held that nothing has been done which affects or suspends the running of the statute: Petrie v. Mott, 38 Hun, 259.

An executor entering upon and holding the lands of the testator does so

as trustee, unless it is clearly proved that he claims adversely with notice to the heirs or devisees: Ramsay v. Deas, 2 Desaus. Eq. 233.

An administrator purchasing at his own sale, without any attempt at concealment, holds adversely to the heirs, and no trust is created: McGaughey v. Brown, 46 Arl. 25; or at most an implied trust, which will be barred after expiration of the statutory period: Schwindersine v. Miscally, 1 Bail. Eq. 304. The statute of limitations will run in favor of executors de son tort: Boyd v. Lee, 12 Lea, 77. An executor who has not proved the will, but who is permitted by his co-executors who have proved it, to take into his hands funds of the estate, does not become a trustee as to them of the property so received; and the statute of limitations will bar a suit in equity against him, which is not brought within a limited time: Marsh v. Oliver, 14 N. J. Eq. 259. In a suit by executors for a share of fees due their testator for professional services as attorney for the estate, the statute was pleaded in bar, to which was pleaded on trial an alleged trust: held, that there being no fraud or concealment in receipt of the fees, and no proof that he agreed to hold them in trust, no such trust arose as would prevent the running of the statute: Webster v. Newbould, 41 Pa. St. 482.

The executor or administrator of a trustee for another cannot plead the statute in bar of a claim of the cestui que trust for settlement of the trust: Johnson v. Overman, 2 Jones Eq. 182. If, however, a liability of a decedent originating in a trust assumed the character of a debt merely, the cestui que use would of course become a mere creditor, and liable to be barred as such: Trecothick v. Austin, 4 Mass. 16.

Guardian and Ward - Infancy. — A guardian stands in the relation of trustee to the ward, and the statute is not applicable to his account: Kimball v. Ives, 17 Vt. 430; Mathes v. Bennett, 21 N. H. 204; Chamberlain v. Estey, 55 Vt. 378. It has been held that even after the relation is terminated the statute will not bar a guardian's claim against his ward if the delay is sufficiently explained: Kimball v. Ives, supra. Thus in Hayden v. Stone, 1 Duvall, 396, where a person received money as guardian a few days after his technical guardianship had expired, his ward continuing as before one of his household, he still maintaining the practical relations of curator, it was held that he could not be protected by the statute of limitations against the claim of the ward for the money. But in Taylor v. Kilgore, 33 Ala. 264, the contrary was held, and this, it is said by Wood, seems to be the better ruling: Wood on Limitations, sec. 204. Where the cause of action arises from matters accruing after the guardianship has ceased, however, it seems proper that the statute should not operate: Shearman v. Akins, 4 Pick. 283.

After an infant ward comes of age, the fiduciary relation of the guardian ceases; they stand as debtor and creditor, and the claim of the ward is clearly subject to be barred by the statute of limitations: Bull v. Towson, 4 Watts & S. 557; Bertine v. Varian, 1 Edw. Ch. 343.

A man intruding upon the estate of an infant, and taking the profits thereof, will be treated as guardian, and cannot set up the statute of limitations against the claims of the infant: Goodhue v. Barnwell, Rice Ch. 198. Where a father receives a legacy of his minor child, a trust is raised by operation of law in respect to the funds so received, which is within the operation of the statute, the father having no right as natural guardian of his children to intermeddle with their estate: Haynie v. Hall, 5 Humph. 290. Where a sale of infant's property was made by a master under a decree, by which he was directed to sell and apply the interest, and as much as might be necessary of the principal of the proceeds, to the support of the infant, it was held that

he was a trustee, and that the statute did not run against a suit by the infants for an account, until he had denied his liability: Houseal v. Gibbes, 1 Bail. Ch. 482. In Owen v. Crow, 62 Md. 492, a husband and wife conveyed all of the wife's property on naked trust for use of the infant, the husband continuing to manage it. It was held that a trust was created against which the statute would not run. The statute of limitations does not run in favor of a trustee of a minor cestui que trust to bar a recovery for waste committed by him on the trust estate during the minority of the cestui: Wyant v. Dieffendafer, 2 Grant Cas. 334.

Vendor and Vendee. After a sale of real estate and before a conveyance, the vendor in possession is held to be the trustee of the legal title for the vendee, and the vendor's possession, while it can be reasonably supposed to be in accordance with the trust, will be construed to be that of the vendee, and the statute of limitations will not operate: Graham v. Nelson, 5 Humph. 605; Harris v. King, 16 Ark. 122; Scarlett v. Hunter, 3 Jones Eq. 84. Equity treats the vendee who has fully performed, on his part, as the absolute owner, and the vendor as a naked trustee charged with the simple duty to convey to the vendee upon demand, and the statute does not begin to run upon his right to a specific performance, until the vendor has given notice of his intention not to convey, or has done some other unequivocal act indicating that he claims and holds the land adversely: Love v. Watkins, 40 Cal. 547; S. C., 6 Am. Rep. 624. If the vendee is in possession under his contract, the statute cannot run upon his right to a conveyance: Bodley v. Ferguson, 30 Cal. 511; Morrison v. Wilson, 13 Id. 498; Love v. Watkins, 40 Id. 547; S. C., 6 Am. Rep. 624; Richardson v. Kuhn, 6 Watts, 299; Martin v. Willink, 7 Serg. & R. 297; Hemming v. Zimmerschitte, 4 Tex. 159; Mitchell v. Shepperd, 13 Id. 484; Holman v. Criswell, 15 Id. 394; Vardeman v. Lawson, 17 Id. 10; Newton v. Davis, 20 Id. 419.

Purchaser for Another's Benefit. Where one by agreement purchases land with another's money for his benefit, but takes the title in his own name, a trust is created by consent of the parties, and the statute will not commence to run until a repudiation of the trust and adverse claim by the trustee: Hutchinson v. Hutchinson, 4 Desaus. Eq. 77; McDonald v. May, 1 Rich. Eq. 91; as where a husband purchased with his wife's money, taking the title in his own name: Milner v. Hyland, 77 Ind. 458. But where the trustee took the conveyance in his own name, without the consent of those whose money paid for it, his holding would be adverse, and the statute would run at once: Kennedy v. Kennedy, 25 Kan. 151. Where one purchases with his own money, on an agreement to hold the property for the benefit of another, this creates merely a technical trust subject to the bar of the statute: McDonald v. May, 1 Rich. Eq. 91; Hughes v. Hughes, Cheves L. & Eq. 33.

Power to Sell. A simple power to sell property does not create an express trust which suspends the operation of the statute of limitations: Dickinson v. Teasdale, 14 De Gex, J. & S. 52. But a power of attorney given by A to B, placing the whole property of A at the disposal of B, with full authority to collect all claims, and make sale of all property, real or personal, and out of the interest of the proceeds to pay for the maintenance of A, with a provision that B shall account whenever desired, is a direct trust, which lapse of time or the statute of limitations will not bar: Cooke v. Williams, 2 N. J. Eq. 209.

Assignees for Benefit of Creditors. — An assignee in bankruptcy or insol. vency, or for the benefit of creditors generally, as soon as the property becomes vested in him, becomes a trustee for the creditors, and from that time