Wm. D. Bloxham, Governor, for the use of Cuthbert Blount et al., Appellants, vs. H. L. Crane and James N. Hooker, Executors of W. B. Hooker, Appellees, 19 Fla. 163

The Chief-Justice delivered the opinion of the court., This was a suit on a guardian’s bond executed 0» the 24th day of April, 1858, by Wm. B. Hooker, now deceased, brought against the appellees, executors of the will of Wm. B. Hooker. The bond was given to the then Governor and his successors in office, and is conditioned that “ Wm. B.

Hooker will well and truly and faithfully discharge the duties and perform the trusts committed to him as guardian of the person and estate of Cuthbert Parker, infant daughter of William Parker, late of said county, deceased, during the minority of the said Cuthbert Parker, and render to this court a just and true account of his guardianship when he shall be thereunto required.” The declaration alleges that Cuthbert Parker has attained lawful age and is now the wife of James H. Blount. Wm. B. Hooker died in 1871, and defendants are the executors of his will.

The said Hooker as such guardian had in his possession a large sum of money belonging to his ward, and the sum of fourteen hundred and seventy-one dollars remained in his hands at a settlement of the estate made by the said guardian with the Probate Court, which settlement was duly approved by the court in 1867, and Hooker in his lifetime, and his executors since his death, have refused to pay over the money to Mrs. Blount or to her husband. Plaintiff demands judgment for the $1,471, and interest from 1867.

Defendants filed several pleas, upon some of which issue was joined, and to others, or to the replications thereto, demurrers were interposed. The attention of the court is directed only to questions arising upon the demurrers. The third plea is that the suit was not commenced within one year after the issuing of the letters testamentary.

The fourth and an additional plea set up that defendants as executors, &c., in 1872, and after February 27th, 1872, they caused due notice to be published to all persons having claims or demands against the estate of decedent to present the same duly authenticated to them as executors within two years from the date of such notice in default whereof said notice would be pleaded in bar of their recovery, and that the plaintiffs alleged demands was not presented within the two years. Plaintiff demurred to these pleas that they did not constitute a defence, and the court overruled the demurrers.

Plaintiff, with the demurrers, filed replications to each plea, alleging that at the time of the issuing of the letters testamentary, and at the time of the publication a# the alleged notice, the ward was a minor. Defendants demurred to these several replications and the court sustained the demurrers. The plaintiff declined to plead further, and on motion of defendants the court dismissed the suit and plaintiff appealed. .

The errors assigned are the overruling of plaintiffs’ demurrers, and the sustaining of defendants’ demurrers and pleas, and in giving judgment for defendants dismissing the suit. o The questions thus presented are — 1, whether the suit can be maintained under the statute of limitations, see. 15, act of February 27,1872, not having been brought against the defendants as executors within one year after letters testamentary issued ; and 2, whether the claim of plaintiff was bai’red by the statute of non-claim, the same not having been presented to the executors within two years after notice by them requiring claims to be presented against the estate of ¥m.

B. Hooker. The first question arises upon the application of the second clause of

Section 15 of

Chapter 1869, Acts of 1872, (McClellan’s Digest, p. 784,) which reads as follows : “ If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrators after the expiration of that time and within one year after the issuing of letters testamentary-or of administration.” The first

section of the act provides that civil- actions can only be commenced within the periods prescribed in the act. The same statute provides that “ this act shall not apply to any action by this State, * * * Or with respect to any moneys or property held or collected by any officer or trustee, or his sureties.” See. 20. A guardian holds the money of his ward as a trustee for the use of the ward. This guardian was, therefore, a trustee of “ money or property held or colleeted ” for the use of the ward within the meaning of the act. It is a direct trust.

The result is that the provision of the act requiring suit to be commenced against executors or administrators within one year after the issuing of letters to them cannot apply, where the suit is brought by or in behalf of a cestui que trust to recover money held or collected by a guardian which belongs to his ward. This was always the rule in equity, and it is saved as to actions at law by the exception of cases against trustees by this statute. Angelí on Limitations, §§166, 468, and citations.

The possession of the trustee of an express trust is in law the possession of the cestui que trust, and there can be no adverse claim or possession during the continuance of the relation. 2 Perry on Trusts, §868, and notes.

An executor of a trustee or guardian by entering upon the administration takes the property and estate charged with all the trusts attached to them. “An executor, in proving the will and in accepting the office from his immediate1 testator, accepts not only all the trusts' imposed by the immediate will under which he acts, but also all the trusts in respect to the assets which come to his hands with which his immediate testator was charged; and he must execute those trusts until he is relieved by a new appointment in the Probate Court and a settlement and payment over of the assets.

He will not be allowed to accept the trusts created by his immediate testator and to repudiate those with which his testator was himself charged. 2 Perry on Trusts, §264; Mitchell et al., Ex’rs., vs. Adams, 1 Iredell, L., 298; Schenck vs. Schenck, 1 C. E. Green, N. J., Ch. 174; Worth vs. McAden, 1 Dev. & Bat. Eq., 199, 209.

The trust fund coming to the hands of the executors is held by them, not as guardians but as the legal representative of the guardian, for the purposes of the trust, and not otherwise, and they are in no better or other position in respect to the statute of limitations than would be the guardian himself if he were living.

The suit is not brought to recover an ordinary debt due from the testator, but to recover money in his possession and in the possession of his representatives as custodians, belonging to the ward; Neither is the statute of non-claim pleadable by these executors as such trustees for the same reason. The claim here made is not strictly that of a past due indebtedness of the testator to the plaintiff, for in his lifetime he owed no debt to the ward who was an infant, and no cause of action had accrued because until her majority he rightfully held her money for her use.

No right of action accrued until she became of lawful age, and then it accrued against the executors because they had become the trustees holding the trust money. An executor is liable upon an obligation or note which becomes payable subsequent to the death of the testator. (3 'Williams on Ex’rs.. 6 Am. Ed.,. 1826.) Neither did a right of action arise in this case solely because the guardian had given a bond binding himself to account to and pay over the money to her, but it accrued by reason that he had her money in his hands; and the exectors, as we have seen, stand in his place in respect to it.

They stand in the double relation of executors representing the estate of the testator, and trustees holding the funds of the ward by virtue of being executors and legal representatives of .the estate. As such trustees they represented the ward, and it was their duty to withhold her money from liability to pay the general debts and from distribution. They are bound by the trust l’esting upon the guardian. The money does not belong to the general assets of the estate. In Sanderson’s Adm’rs vs.

Sanderson, 18 Fla., 820, 846, a claim against the estate of the intestate due to an administrator was objected to because it had not been “ presented ” under the statute of non-claim; and it was held upon principle and authority that being himself the creditor it was not necessary to enact the absurd performance of presenting his own claim to himself in his capacity of administrator, but if his demand was legitimate he could retain it out of the assets, the estate being solvent.

Here also it seems that these executors holding this fund in trust and as trustees representing the ward, it was unnecessary that they should “ present ” this claim to themselves .as executors. The amount due to the ward was known by'the accounting had with the Probate Court in 1867 by the guardian as shown by the records of the same court-from which the letters testamentary were issued to these defendants. No further accounting by the guardian can now be had because he is not in existence.

Where a complaint alleged that certain funds were held by A. at the time ot his death in trust for the plaintiff, and that the defendants, the executors of A., had refused to account to the plaintiff for such funds, it was held that a good cause of action was stated. King vs. Lawrence, 14 Wis., 238. The court erred, therefore, in overruling the demurrer of the plaintiff to the third, fourth and additional pleas of limitation and non-claim.

The plaintiffs’ replication to these pleas setting up infancy, coverture, &c., in avoidance of the statute of limitation, tendered an- immaterial issue, and was therefore demurrable, but as the demurrer of the defendants thereto reached all defects in the pleas replied to, the defendants were not entitled to judgment upon such demurrer.

The judgment dismissing the suit for the causes stated is reversed and the cause remanded, with directions to enter judgment for plaintiff upon the demurrer to the third, fourth and additional pleas, and for such further proceedings as may be had consistent with the practice of the court.