Cooper v. Cooper

61 Miss. 676

• Court: Mississippi Supreme Court
• Decided: April 15, 1884
• Status: Published

Opinion

Ed. Clark, Special Judge,

delivered the opinion of the court.

Timothy T. Cooper died in Holmes County in February, 1867, leaving a will dated May 17, 1864, by which he devised the principal portion of his estate to his brother, Joseph W. Cooper, whom he appointed his executor. The latter probated the will and qualified as executor in April, 1867. The will directs that the testator’s debts and funeral expenses shall be paid as speedily as possible after his death out of any money which may come into the .hands of the executor from any portion of his estate, real or personal. It then makes sundry bequests of slaves to- nephews and ■nieces of the testator; directs that if there is a crop growing on his ;place at the time of his death the proceeds, after paying the expenses of the place for the year, “ shall be appropriated ” (to ¡quote the language of the will), “in connection with the interest I -have in notes held by Barnes & Cooper on L. B. Hemphill to the payment of my debts,” and by a subsequent paragraph provides as to the notes here mentioned as follows :

“ Barnes & Cooper hold notes on L. B. Hemphill for several ■thousand dollars. I will and direct that my portion of said notes when collected shall be appropriated to the payment of my debts. If my portion exceeds what is sufficient to pay my debts, then I will and direct that the excess be equally divided between my brother, J. W. Cooper, and my nephews, George W. Barnes and T. E. Cooper.”

It is out of this provision of the will that the present controversy arises between George W. Barnes and T. E. Cooper, two of the legatees named, and the legal representative of J. W. Cooper, the executor and other legatee, who is now dead; and the contest between the parties is as to what amount the executor is chargeable with on account of the fund arising from these notes, and what debts of the testator are chargeable against it. It arises in this manner : The Hemphill notes represented the purchase-money of certain lands of Hinds County in this State, which the testator and George M. Barnes, who was his brother-in-law, had owned as tenants in common and had sold to Hemphill in the year 1860 for about nineteen thousand dollars. Shortly after his qualification, J. W. Cooper, as executor of T. T. Cooper, and J. W. Bobb, as administrator of George M. Barnes, the other payee of the notes, as joint complainants, filed a bill against Hemphill in the Chancery Court of Hinds County, and on November 21, 1867, obtained a decree for the sale of the land for satisfaction of the amount due the vendors, which was ascertained to be about twenty-one thousand six hundred dollars. In the course of these proceedings it was made to appear that Barnes, in his lifetime, had received a payment upon one of the notes, which, with interest to the date of the decree, amounted to two thousand four hundred and eight dollars and seventy-five cents, and that nothing had been received by Cooper, and in accordance with a prayer of the bill that the proceeds of the sale might be distributed equitably between the two estates, it was decreed that the commissioner of sale should first pay the equivalent of this amount out of the proceeds of sale to Cooper’s executor, and should then divide the balance equally between him and his co-complainant, Bobb, as administrator of Barnes.

On February 15, 1868, a sale was made under the decree, at which the executor, John W. Cooper, became the purchaser of the lands for about nineteen hundred dollars, receiving a deed in his own name and delivering to the commissioner his receipt, as executor, for the amount of his bid, less the costs, which he paid in cash. The sale was reported and .confirmed, and on the 18th day of December, 1869, a little less than two years afterward, Cooper sold the land to Green & Echols, of Hinds County, for seven thousand forty-four dollars and twenty-five cents, two thousand dollars of which he received in cash and -the balance in notes, the last of which was paid to him May 12, 1874, the whole amount of principal and interest realized by him on this re-sale of the land being eight thousand three hundred and fifty-one dollars and sixty-one cents. In July, 1864, Cooper died, having 'in the meantime rendered four annual accounts of his executorship, the first on August 25, 1868, the second on August 23, 1869, the third'on July 25, 1870, and the fourth on July 1, 1871. In none of these accounts did he charge himself with the proceeds of the Hemphill land, either the nineteen hundred dollars bid by him at the sale under the decree or the eight thousand dollars realized on the resale to Green & Echols, though in. his first, second, and third accounts he claims credit for sums expended for costs and counsel fees in the litigation. No final account was filed by Cooper, but his annual accounts show that he claimed to have expended about thirty-six hundred dollars more than he had received as executor. Affairs were permitted to remain as left at his death until June 14, 1881, when the appellants, T. E. Cooper and George W. Barnes, as legatees entitled to share in the residuum of the Hemp-hill debt after payment of the proper debts of the testator, filed a petition in the Chancery Court of Holmes County, praying that the appellee, who is a widow and administratrix of the deceased executor, be cited to render his final account as such executor. She was cited and on February 5, 1882, rendered an account (which was but a,r.e-statement .of the account filed by the executor himself), in which she-claimed a balance of three thousand five hundred and twenty-six dollars and sixty-five cents due the executor, exclusive of commissions. 0-n July 6, 1882, the appellants filed exceptions to this account by which they sought (1) to purge it of sundry credits, claimed by the executor on account of debts paid, amount-' ing to about three thousand nine hundred dollars; and (2) to have the executor charged with the entire amount' of eight thousand three hundred and fifty-one dollars and sixty-one cents, realized by him from the sale of the Hemphill land. Their contention, as to the credits objected to, is, as to some of them, that they were not proper debts of the testator but of a copartnership, of which he and the executor and the G. M. Barnes before mentioned were the members, and therefore to be paid out of the partnership assets, and, as to others, that they were properly to be charged against the proceeds of the crop grown on the testator’s plantation during the year 1867. As to the proceeds of the Hemphill land, their contention is that the executor is chargeable with that upon the ground that it was a transaction by a fiduciary with fiduciary funds, the profits of which the beneficiaries of the trust are entitled to take to themselves.

The appellee filed what might be considered an answer to these exceptions, in which she set up 'in behalf of her intestate, the deceased executor, the statutes of limitation of six and ten years respectively, and in behalf of herself, as administratrix, the statute of four years in regard to suits against executors and administrators. Upon the issues thus presented and the evidence, the matter was heard by the Chancellor, who held, as matter of law, that the exceptors were not barred by limitation; that the executor must be held accountable for so much of the 'money realized from the re-sale of the Hemphill land as properly belonged to the estate of the testator, T. T. Cooper, and that only his individual debts could be charged against the fund. But he found, as matter of fact, that these debts amounted to more than the sum which was chargeable to the executor on the basis indicated, and he therefore dismissed the petition filed by the exceptors, praying for an account, and discharged the administratrix from making any account in behalf of her intestate. Exactly what proportion of the proceeds of the Hemphill land the Chancellor held to be chargeable to the executor does not appear, but it was stated at the- bar to have been the twenty-four hundred dollars as to which Cooper’s estate was given priority under the Hemphill decree and one-half of the balance; and this is reasonably inferable from the language of his decree, the principle of which appears to have been to charge the executor in respect of the proceeds of the land realized on the sale to Green & Echols, just as he would have been chargeable if this amount had been‘produced by the original sale uuder the decree.

The appellants complain of the decree upon two principal grounds: First, that the executor was not charged with the whole eight thousand three hundred and fifty-one dollars and sixty-one cents realized from the Hemphill land, which would have produced a surplus in their favor even on the basis 'adopted by the Chancellor ; and second, that the Chancellor refused to refer the account to a commissioner after settling the principles upon which it should be stated. The view we take of the case makes it unnecessary to dispose of any but the first objection.

It is admitted by the appellants that, of the credits claimed for the executor, there is about two thousand eight hundred dollars, which is properly chargeable against the Hemphill fund as debts of the testator within the meaning of his will. Unless, therefore, the executor can be properly charged, at the instance of the appellants, with more than that amount on account of this fund, it is plain that nothing can come to them under the will, and that they have not been prejudiced by the decree appealed from. What the amount is with which he can be so charged is therefore the inquiry to be solved.

It is insisted for the appellee that the petitioners, or exceptors, are precluded by the statute of limitations from making any claim against the executor; that inasmuch as they were entitled to an action at law for the recovery of their legacy, which,-as is claimed, they must have brought within six years, they must come within the same time, if they would call him to account in the court in which the trust is being administered, and ask payment there.

We cannot assent to this view. Where a legacy is to be paid by an executor as such, and in the course of administration, it is a duty arising out of an expressed trust which the legatee is entitled to assume the trustee intends to execute. Until the trust is ended and the executor discharged from any further accounting, the beneficiaries have the right to consider the trust an active one, and mere delay on the part of the trustee in settling with the court, and through it with the beneficiaries, and obtaining his discharge, cannot be considered such a breach of the trust as to set the statute in motion in his favor. To so hold would be to offer a reward to executors and administrators to be dilatory instead of diligent in the performance of their duties. Nevertheless, we are not to be understood as saying that there may not be cases in which, after an actual suspension of the trust, there has been such long acquiescence or delay on the part of the cestui que trust as to require the court to deny him relief upon the ground of laches. Upon the principle that the beneficiary is entitled to rest upon the assumption that the trustee intends to execute the trust, we are clearly of the opinion that, notwithstanding the lapse of time, the appellants are entitled to have the executor charged with the nineteen hundred dollars he bid at the Hemphill sale and for which he delivered to the commissioner his receipt as executor.

As to that sum, he is an express trustee; it is money received by him in performance, and not in violation, of his trust, and while it is doubtless true that he did not pay the amount to the commissioner and then receive it back from him, yet no court Avould permit him to deny that this sum had actually come to his hands in the coarse of his duty. He is chargeable with it in the same right and upon the same footing as with any other assets of the estate, and cannot be heard to assert that he holds it differently.

But, inasmuch as the debts of the testator, Avhich are admitted to be a legitimate charge upon this fund, exceed the sum of nineteen hundred dollars, and the appellants have suffered no prejudice by the decree appealed from, if this is the only amount with which the executor can be charged on this account, it becomes necessary to determine Avhether he can be charged with the amount realized from the sale of the land to Green & Echols, in December, 1869, in lieu of the amount bid by him at the commissioner’s sale, in February, 1868.

It is a familiar principle that a trustee can make no profit for himself with the trust fund, and if he invests the fund in property, the cestui que trust has the election to take the property or to hold the trustee accountable for the money, and may even go to the extent of having the property sold to produce the fund, and of charging the trustee with the deficit, if any. On this principle we entertain no doubt that, if the appellants are in time, they can have the executor charged with the entire amount realized from the Hemp-hill land — not merely with what would have been the proportion Avhich Avould have been the testator’s share if he had bid that amount at the commissioner’s sale, but with the whole of it. He stood in no relation to the estate of Barnes, the co-payee of the notes, which, in the absence of fraud or unfairness, precluded him from getting a bargain at the sale, and if he did get a bargain there, it was for the benefit of his cestuis que trust, who, unless they are precluded by a failure to act in time, are entitled to appropriate it.

It remains, therefore, to determine whether the executor is protected by any provision of the statute of limitations from being charged with the seven or eight thousand dollars for which he resold the land, as before mentioned. We have two statutes which bear upon the case. Code of 1871, §§ 2143 and 2175; Code of 1880, §§ 2665 and 2696.

By the adoption of these provisions, much of the learning in the books touching the application of the statutes of limitation to trusts in-equity has been rendered valueless in this State. There is no distinction as to the character of trusts to which the statute applies as respects their being express or implied, technical or constructive; the only limitation is that they be “ not cognizable by the courts of common law,” a qualification which may attach to one kind as well as to another. In the nature of things, however, the statute must act upon express technical trusts less frequently than upon any other class, since it is only through the breach of such a trust that it is set in motion. The statute never runs except against a cause of action, and a cause of action implies not only the existence of a right but such a denial of it, either actual or constructive, as puts the party entitled under a necessity to act if he would preserve it. An open, subsisting, and acknowledged trust is not within the operation of the statute, fox’, as said by Lord Redesdale, in the old case of Hovenden v. Annesley, 2 Sch. and Lef. 607 : “If a trustee is in possession, and does not execute his trust, the possession of the trustee is the possession of the cestui que trust; and if the oxxly circumstance is that he does not perfox’m his trust, his possession opex’ates nothing as a bar, because his possession is according to his title.” -

But implied, resulting, and constructive trusts are subject to the operation of the statute, which begins to run fx’om the time the wrong is committed by which the party becomes chargeable by legal implication. The very nature of such trxxsts excludes the idea that they are acknowledged, open, and active, and implies that the parties staixd in such adverse x’elations to each other as to require him who asserts tlie trust to become an actor if he would establish it. They either arise out of an intention which the law imputes to the party to do equity if seasonably called upon, or are thrust upon him at the instance of the injured party contrary to his known intention and will. Mr. Perry assigns to the head of resulting trusts cases “where a person standing in a fiduciary relation uses fiduciary funds to purchase property and takes the title in his own name ” (Perry on Trusts, § 125), though it is obvious that where the party so purchasing intends at the time to hold for himself, the case partakes also of the nature of constructive trusts, which are said to arise out of either actual or constructive fraud. Pomeroy’s Eq. Jur., §§ 148, 1030 et seq. When Cooper, the executor, by the use of a debt which he held in that capacity, purchased the Hemphill lands in February, 1868, he became chargeable in respect to them as a trustee for the beneficiaries of that fund, but it was upon a resulting or constructive trust, and not an express one. He did not become a trustee of the land in the proper and technical sense of the term, but only became liable to be made a trustee by decree of a court of equity. This liability arose upon the instant of the transaction, and upon the same instant the statute began to run in his favor. More than ten years elapsed before any attempt was made to charge him. The exceptions filed by appellants on the 5th of July, 1882, constitute the first effort to do so, though the result would be the same if we take the petition filed June 14, 1881, as the initiation of proceedings for that purpose. The statute appears to us to be an insurmountable difficulty. Murdock v. Hughes, 7 S. & M. 219; Prewett v. Buckingham, 28 Miss. 92; Watts v. Gunn, 53 Ib. 502; Wilmerding v. Russ, 33 Conn. 67; Wood on Limitations, §§ 200-201; Perry on Trusts, §§ 124-127, 166, 854-866.

It was suggested in argument that the purchase of the land by the executor was consistent with an intention on his part to devote it to the use of the beneficiaries, and that wrong intent cannot be assumed. We have considered this point with care, but are unable to see that such an intention could alter the case, even if clearly proved. Nothing short of an agreement taking upon himself the character of an express- trustee would arrest the statute, Prewett v. Buckingham, supra, and such an agreement cannot rest in parol. Gibson v. Foote, 40 Miss. 788; Code of 1871, § 2896. But, if the law were different, we. think we would be bound to conclude, upon the record, that Mr. Cooper bought the land for himself and ahyays claimed and held it as his own. Though he rendered two annual accounts after the sale to Green & Echols, he did not charge himself, in either, with any part of the proceeds of this sale, though a considerable poi’tion of it had been then paid. In these accounts, he states under oath that he had received no money on account of the estate since his last settlement, and claims credit for expenses incurred in reference to the Hemphill debts, thus indicating that the failure to charge himself was through no want of recollection. It is true that he failed, also, to charge himself with the one thousand nine hundred dollars bid at the commissioner’s sale, which comports with the view that he meant to hold the land for- the benefit of the estate; but we think this may be accounted for upon another view which equally repels any imputation of intentional fraud. Under the will he was required to pay the testator’s debts promptly out of any moneys coming into his hands, though the Hemphill notes were designated as the fund upon which the burden was ultimately to fall. As he was himself the residuary legatee, whatever he paid before realizing on the Hemphill notes was in the nature of an advancement out of his own means. His first annual account shows disbursements amounting to about six thousand dollars; it is but a fair inference, therefore, that he considered that the one thousand nine hundred dollar bid at the Hemphill sale belonged to him, and that he need not account for it to the court.

L. Brame, for the appellants,

filed the following suggestions of error and brief in support thereof:

1. If Cooper, before the sale, occupied a relation as trustee to the land, the nature of the trust, must have been an express one arising from the grant of letters testamentary to him under the will of T. T. Cooper. If as to this land the executor was an express trustee, we do not understand the opinion of the court 'to be that by any act of his own, not distinctly communicated to the beneficiaries, he could change his attitude and claim to hold adversely, nor by his own act convert himself from an express into an implied trustee. We think the fundamental error in the opinion of the court consists in the assumption that the relation of trustee arose at the instant of the purchase by Cooper, which necessarily excludes the idea that he was trustee in relation to the land before the purchase. He was the representative of the intestate, and as such was the holder of whatever rights the intestate had against Hemphill. The value of the debt consisted in the fact that its payment was secured in part by lien on the property for which the notes had been executed. The security and the debt were inseparable. If before the purchase the executor was a trustee as to the land, it is inconceivable how he could become a constructive trustee. To do this he must not only have taken on the character of constructive trustee, but also have divested himself of the character of express trustee, and this, we think, he could not do. Stacits v. Bergen, 17 N. J. Eq. 562; Rafferty v. Mallory, 3 Bissell 362; Schoonmaker v. VanWyck, 31 Barb. 458; Jeivett v. Miller, 10 N. Y. 402; James v. Throckmorton, 57 Cal. 368; 4 Hawks’ Law and Eq. 412.

The decree is affirmed.

2. Having now shown that the executor was an express trustee in reference to the land and that his purchase of it did not raise a trust by mere implication of law, as. in the ordinary case of a resulting trust, we submit that the statute of limitations could not commence to run in his favor as against the beneficiary until there was an open disavowal and repudiation of the trust, which had to be brought home to the knowledge .of the cestui que trust. James v. Throckmorton, 57 Cal. 388; Hastie v. Aiken, 67 Ala. 313; Bacon v. Rives, 106 U. S. 99; Perry on Trusts, §§ 863 and 864. The mere fact that the executor failed to report this fund, or to charge himself in his accounts, did not operate to give notice to the beneficiaries that he occupied a hostile relation in reference to the same. This fact is offset, by the fact that he charged the estate with the cost of the Hemphill sale and attorney’s fees, from which it was to be inferred, of course, that he intended to give credit for what he might eventually realize. But all this amounts to nothing, because, under the authorities above cited, the uniform rule is that time only begins to run in favor of a trustee after he openly disavows the trust relation, which must befiiWij and unequivocally made Jmown to the cestui que trust.

3. This is a case in which an accounting is being made with the court by' the trustee in respect to the property or the funds of the estate in his hands, as trustee or officer of the court. The fund in question was realized by him as a trustee out of the trust property, and inasmuch as it is the case of an unsettled administration, the trustee, after citing the beneficiaries to a settlement, ought not to be allowed to say to them, or to the court, that by reason of his failure to settle earlier the cestuis que trustent are to be barred in respect to the assets in his hands. See The Governor and Company v. McKenzie, 8 Brown’s Cases in Parliament 65 ; 4 Hawks’ Law and Eq. 412. The mistake which we think the court has made is in applying a statute of limitation which has reference only to suits to be brought, so as to prevent a court of equity in which there is a pending administration from the application of the equitable maxim that no trustee shall profit by his unauthorized dealing with the trust estate. The court, in effect, says that the rule cannot here be enforced because of the lapse of time. The profits of the fund necessarily follow the fund. If the legatees are entitled to the fund itself, they are entitled, under this well-recognized maxim of equity, to its incident, .the profit. The trustee derives an advantage from his own neglect to account.

4. Under, the statutes of our State, which require a refunding bond to be executed before an action can be commenced for a legacy, the appellants had no standing in court, except to proceed as they have done, and could not therefore file a bill to have the purchase declared to be in trust for their use; for we think it will hardly be argued that where the statute requires the execution of a bond as a 'condition to a suit, the statute of limitations begins to run as if a right of action had existed. The right to sue depends upon the ability to give the bond. We also call attention to the fact that whether anything would be realized by the legatees must depend on the amount of the debts and the amount realized on the Hemphill notes. The legacy was therefore conditional. Whether anything passed by it, and if so how much, could not be determined until the proper settlement in the course of administration. See Jones v. Irvine, 23 Miss. 361 ; Donaldson v. Raborg, 26 Md. 312, and cases there cited.

5. Conceding, now, that we are wrong in the foregoing position in relation to the statute of limitations, and that the opinion of the court is correct in holding that as to the one thousand nine hundred* dollars the executor was an express trustee, and as to the balance of the money a constructive trustee, we desire to suggest a qualification of the decision which probably was not considered by the court, and which has occurred to us since the decision in the case. The executor collected the whole of the eight thousand three hundred and fifty-one dollars before the bar of the statute of limitations had attached in reference to any part of the fund. As to a part of this fund, the court holds that he is an express trustee and cannot invoke the statute, but that as to the balance the right of action is barred. Upon the well-known maxim that equity considers that as done which ought to have been done, we submit that the court ought to hold that such portion of the fund as will now be barred by the statute of limitations ought to be considered as having been appropriated toward reimbursing the executor in respect to the debts of the testator which he had paid and in satisfaction of his part of the legacy, and that we are entitled to hold him responsible so far as the one thousand nine hundred dollars will go toward paying our proportion of the legacy.

S. S. Calhoon, Special Judge, delivered the opinion on suggestions of error.

We have carefully examined the suggestions of error, which have been presented with great ingenuity and force in this case, but feel compelled by the facts in the record to adhere to our previous opinion.

1. If the statute of limitations, which is a well-marked favorite in the jurisprudence of Mississippi, applies at all in this case, it applies in the proceedings giving rise to the record. Appellants were as much actors as if they were complainants in an original bill. They sought to bring into the account a constructive trust fund after the bar had attached, which is no more allowable than a direct proceeding for its collection. Certainly the proceeding is in no more favored position than a cross-bill seeking a decree against the executor as a trustee ex mal officio upon the averment of a constructive trust. Regardless of form or forum, the statute may be availed of whenever and wherever the party entitled to its protection is assailed. In this connection the general rule that in“proceedings to settle accounts any party in whose favor a decree may be rendered is an actor is not inapplicable. Raymond v. Came, 45 N. H. 201; Grove v. Fresh, 9 Gill & J. 280; Scott v. Pinkerton, 3 Edw. Ch. 70.

2. We cannot sanction the suggestion that the executor should be held to have paid himself his advancements to the estate and his own share of the legacy out of the^fund derived from the re-sale of the land, thus leaving for appellants the one thousand nine hundred and fifty dollars bid at the first sale. To hold him liable for both the bid and the profits would be in the same breath to affirm and disaffirm the transaction by which he became the purchaser of the land. Appellants must either affirm the investment and claim the land or repudiate the investment and claim the fund invested; and as to the former, it being a constructive trust, “ a trust not cognizable by the courts of common law,” the statute interposes a bar, while, as to the latter, the search is fruitless because the object is absorbed in the proper liquidation of debts. Moreover, to accede to this suggestion would be to effect by indirection what is forbidden to be done directly. We cannot decree the executor a direct trustee of the fund had from the re-sale and require him to produce the proceeds for distribution, and therefore we cannot overlook the adverse holding by him and imply that he paid himself out of the fund realized from the sale of property he held and sold as his own. For ten years after his purchase he was not trustee of the land in any legal sense, but liable to be made such at the election of a proper party by decree of a proper court. No such decree was sought or had within ten years, and we cannot pronounce one nunc pro tuno.

3. Neither can we approve the suggestion that the executor was an express trustee of the land which secured" the debt, because he was such of the debt itself. Even if we proceeded on this idea, which -we cannot do, it could yield no results to complainants, for the plain reason that he could thus be held as to only one-half, this being his testator’s interest, and this was more than absorbed in the proper extinguishment of legitimate debts.

But the executor was not express trustee of the land. The testator had no equitable ownership of it nor power to create a trust in it. The executor undoubtedly held such relations to the land as disqualified him from holding title to it against the objections of the legatees seasonably interposed. But he did not hold it by any such technical trust as authorized them to regard Ms possession as their possession, so as to exempt them, as in cases of direct trust, from the necessity of action or election to affirm or disaffirm within the period of the statutory bar or such shorter period as circumstances might dictate.

The cases cited in support of the suggestion of error now being considered are in every instance either cases of express trusts pure and simple, or cases where the statute of limitations was not involved.

In Staats v. Bergen, 17 N. J. Eq. 562, quoted from by counsel, Bergen held a second mortgage on land on which there was a first, third, and fourth mortgage to other mortgagees, and while thus second mortgagee he executed a covenant to hold this mortgage and the bond it secured as trustee for complainant. The fourth mortgagee foreclosed for the benefit of all the mortgagees, and Bergen bought at the foreclosure sale, and the court held, at the instance of Bergen’s cestui que trust, immediately interposed, and where there was no question of limitation, that Bergen could not avail as against his beneficiary of a purchase by him at a sale at which he was practically one of the vendors. The principles announced there and set forth in the quotations of counsel have no significance in their bearing in the case before us when considered in reference to the facts and the whole context of the -opinion, and yet this case has more apparent strength for appellants than any other they produce.

4. In the case at bar, J. W. Cooper bought the land at a public sale, not as excutor, but as an individual, took a deed to himself as the record seems to fairly import, held the land as his own, and sold and conveyed it as his own, showing such an open, notorious, flagrant adverse claim that the legatees must be held to have known it, perhaps, even if the doctrine of notice applied to constructive trusts. Being adult and free from disability, they waited more than ten years without proceeding. No case can be found, we venture to say, where, after such delay, legatees have been allowed to sue or maintain exceptions on the ground that they thought the executor was holding for them. If, in fact, it was the thing committed to his care which he held, unless upon notice of repudiation of the trust, no statute could ever apply. But the rule is not the same where, not the thing itself, but something into which that thing is converted, is involved, for, in the latter case, the election and claim must be made and asserted at least within ■ ten years, which lapse of time it is well settled in this State gives title to the adverse holder against the world — even against the true owner.

A trustee is disabled by law to buy either the thing intrusted to him or property mortgaged to give that thing value. If he buys the thing intrusted to him, he holds it under the same trust he held it before and it remains an express or technical trust, and time does not bar the beneficiary’s suit.

For the other, the beneficiary may elect to hold him as trustee by construction of law and may sue for it, but he must do it within ten years.

Suggestions of error denied.