Bohannon's heirs vs. Sthreshley's Ex'ors, 2 B. Mon 437

Chief Justice Robertson delivered the Opinion of the Court. In February, 1817, William Bohannon, son-in-law of Thomas Sthreshley, being pressed by debts and wishing to sell some of his slaves, made to the said Sthreshley a bill of sale of three of his slaves {Mira, Jordan and Laura,) for the recited considration of 11034, which, as we believe from all the facts, was actually paid by Sthreshley to Bohannon, and to the use of his creditors. On receiving the bill of sale, Sthreshley handed it to his daughter, Mrs.

Bohannon, with an injunction to keep it safely and an assurance that it would secure the slaves to herself and her children. Her husband and herself enjoyed the continued possession and use of those slaves until his death in the winter of 1818.

Sthreshley having administered on his estate, and become guardian for his infant children, hired out the slaves and appropriated the proceeds to the payment of the intestate’s debts and the maintenance of the wards and the widow, until 1822, when he made a settlement with the proper County Court, and refused to make distribution then of the slaves, on the avowed ground that the adult heirs ought not then to take any portion of them, but that he should retain them for the use of his wards during their minority.

After that settlement the widow seems to have retained Mira without question as to her right, and Slhreshley kept Jordan and Laura, frequently declaring that they were finally to be distributed among Bohannon’s heirs, and used in the mean time for the benefit of his wards; but sometimes also declaring that he had a right to dispose of them as he might think fit.

He died in 1829, and by his will, which did not mention any of those slaves, he devised his estate to be equally distributed among five stocks of descendants, the heirs of Bohannon constituting one of those stocks, The father-in-the Psondn-lawf (who wasembarrassed) sundry slaves; took a it'to’w^daugh^ ter, enjoining its assuring her that the'siaves to herself and ehildren; the slaves lemain with the son-in-law till his death; the famfnísterMeaves part of the slaves the daughter, •for the benefit of dren^"ondnlaw, for whom he was guardian; dies and devises five stocks^ this oneSllsayingeno^ thing of those thosesiaveswere the daughter's i^ldldead)heand held by the faring"hisaTife as then trustee.

Limitation canto1 the11 person himseif or his •who obtains and odp3ropertyS1as trustee, but from the time of opentL Trastean! claim,ins adversely to the cestui que trusts. In 1831, the widow of Bohannon being dead, their children filed a bill in chancery against Sthreshleifs ex-editors, praying for a decree for Jordan and Laura and . , ™ , , . , her increase.

I he executors resisted the decree on three grounds—1st, that neither the complainants nor their mother ever had a valid title to those slaves; 2d, that if they had, it had been lost by their election to claim under the will; and 3d, that their claim was barred by lamp nf U.-np iaPse ot Ilme> The Circuit Court dismissed the bill, and we are now . to revise that decree. 1* Our deduction front all the facts'is, that Slhreshley jn fact gjTC siaves to Mrs. Bohannon, or to her and her children, and delivered to her the bill of sale for securing that gift.

And there is strong evidence tending to Prove that the gift of the slaves was only the execution of a promise to indemnify her for the price of a 1 ' A tract ot land which he had settled her* upon and verbalty given to her, but afterwards sold for his own benefit.

We are a^s0 °pini°n that Slhreshley obtained the possession of Jordan and Laura in his fiducial character as administrator of Bohannon, and guardian of his infant children, and that he continued to retain them as §uarchan> never satisfactorily manifesting an intention to appropriate them to his own use as his own property, even if such a determination could have affected the right of the children of Mrs. Bohannon. 2.

As the will does not mention these slaves, and there *s no satisfactory evidence tending to prove that the testator considered or claimed them as his own, or intended to embrace them in the general devise of all his estate, no sufficient ground has been established for applying the equitable doctrine of election. Morehead fy Reed for plaintiffs; Robinson <£■ Johnson for defendants. 3d.

And, as it appears to us from what we consider a decisive preponderance of facts, that Thomas Sthreshley obtained and held Jordan and" Laura as a fiduciary, in trust for the benefit of Bohannon’s children, the lapse of time cannot operate as a bar eilher in equity or law, *• * J 7 to the successful assertion of their right to them as against his representatives, this suit having been brought within about two years after his death.

Had there been conclusive proof that be had, in fact, held the slaves avowedly and notoriously in his own beneficial right, and adversely to the title of his said grand children, the lapse of more than five years from the commencement and announcement of such -an adversary claim and possession, might (so far as there was no saving disability) have been available to his executors as a bar to any suit instituted after that limitation. But there is no such proof; and, therefore, time is unavailing to the executors representing a trustee whose trust should be presumed to have been subsisting at his death.

It is, therefore, our opinion that the bill should be maintained against the representatives of the trustee, Slhreshley, but subject to all equities as to compensation for maintaining his wards, concerning which, there may be a proper enquiry hereafter. Decree’reversed and cause remanded.