Andrew Anderson, Appellant, vs. Henry P. Northrop, et al, Appellees, 30 Fla. 612

Taylor, J. : From the bill and the admissions of the answer it appears that Andrew Anderson, Sr., father of the'appellant, died in St. Augustine, Florida, on or about the 9th of November, A. I). 1889, leaving a last will and testament, in which the testator’s wife, Clarissa C. Anderson, wd’o survived him, ivas named sole executrix. That this will was duly probated and admitted to record; and that she qualified and acted as executrix thereof.

By this will the said Clarissa C. ■was not only madr sole executrix, but was given a life estate in all of the testator's property,"* real and personal, with remainder over in fee to the children of the testator share and share alike as tenants in common, and not as joint tenants, and to their respective heirs, executors, administrators and assigns forever That the testator left surviving him four children, three daughters by a former marriage, and one son, Andrew Anderson, the appellant, who is the only issue of the marriage with the said Clarissa O. That Mrs. Anderson, the executrix, departed this life at St.

Augustine, Florida, on the 23d of June, A. D. 1881, leaving a last will and testament in which her son, Andrew, the appellant, is made executor, and by it he is given in the event of his surviving his mother, a,ll of her property, real and personal. Her will was duly probated and her said executor duly qualified as such.

The litigation before us was commenced by bill in equity filed by the heirs-at-law of Hannah Eliza Northrop and Emily Taylor, two of the daughters of the elder Andrew Anderson, against Andrew Anderson, as executor of his mother, Clarissa C., deceased, and in his own right, and against the husband and children of Mary Crafts, deceased,, the third daughter of said Andrew Anderson, Sr., and their trustees created by ante-nuptial settlements.

No relief is prayed in the bill against any of the defendants ex cept Andrew Anderson, the other defendants being made parties that their rights as devisees of the elder Anderson might be adjudicated. Andrew Anderson, as such executor of Clarissa C., and in his own behalf alone, answered the bill, and the case is appealed here by him from the decree rendered against him as executor of his mother, the said Clarissa C., deceased.

By agreement and consent in the record of the counsel for all parties, complainants and defendants, the representative capacity, the descent and relationship of the complainants and defendants, the marriage-settlements, marriages, births and deaths as alleged in the bill are admitted to be trae. The exhibits attached to and referred to in the bill, amended bill and answer are also admitted by agreement without further proof of their authenticity as true copies of the originals as alleged. So that there is no controversy between the parties as to these matters so admitted.

In the answer of the defendant to the bill there is a demurrer raising the issue whether the bill contains sufficient allegations of fraud on the part of Clarissa C. Anderson, as executrix of Andrew Anderson, Sr., and as life tenant under his will, in the disposition made by her of the properties of her testator that are sought to be avoided and overturned by the bill, in order to require an answer thereto by the defendant, or to authorize any relief by reason thereof.

The appellant contends that the bill does not contain a sufficient definite allegation of facts to constitute fraud in the acts of the executrix, or that will authorize inquiry therein, or any relief by reason thereof. We will dispose of this issue first, as it concerns the pleadings in the cause. The following allegations of fact, in substance, set forth in the bill, must be considered in their proper connection and as to their legal effect, if true, in the consideration of this point: 1st.

The bill alleges that the elder Anderson died leaving a will that was duly probated, and that Clarissa C. did qualify as sole executrix thereof. 2d. That by said will the said Clarissa was made devisee for her natural life only of all his properties, real and personal, with remainder over to all of the children of the elder Anderson in fee. ' 3d.

That the personal estate of the testator that went into her hands in her dual character as executrix and life tenant was appraised at over $20,000, besides debts due the estate amounting to over $7,000, and other personal property to which no definite valuation was attached. And that besides the personalty the said testator at the time of Ids death was seized and possessed of much valuable real property in St. Johns county, Florida, that was productive and amply sufficient to support the life tenant and pay expenses of administration. 4th.

That the debts of the said Anderson, Sr., at the time of his death amounted, on complainants’ information and belief, to less than $5,000, and that said executrix had sufficient available assets at her command to pay all lawful debts and claims against the estate without selling any of the real estate or personal property. 5th. That the said Clarrissa C., when her husband died, had no property of her own, nor did she after-wards receive by inheritance, gift or otherwise, any property, except from the use, appropriation and conversion of the real and personal property of said estate. Cth.

That she commenced a series of fraudulent actions whereby she eventually absorbed the whole estate. That she sold a large number of negro slaves and received payment therefor, and collected large sums of money due and owing to.said estate, and appropriated the moneys thus received to the purchase of real and personal property in her own name, and to other uses and purposes personal to herself. 7th.

That she procured a power of attorney to mortgage the real property to pay an alleged debt, when at that very time she held mortgages belonging to the estate amounting to $8,000 or $10,000, and could have paid the debt without encumbering any of the lands. 8th. That instead of foreclosing the Peter Sken Smith mortgage of $6,300 due the estate, she bought in the property covered by it at a tax sale thereof, taking the title to herself individually. 9th.

That during the twelve years of her administration of said estate, she absorbed these valuable lands, besides more than $25,000 of personal property, and $2,000 of borrowed money, while the indebtedness in 1851, as she claimed m her petition for the sale of the real estate for payment of debts, was greater than when she took charge of said estate, and was chiefly owing to herself. 10th.

That on the 7th day of July, 1851, she petitioned the County Court for an oi’der to sell the real estate of her testator for the purpose of paying her alleged advances claimed to be due herself, amounting to $4,858.80, and the $2,000 borrowed from Mrs. Peck. That she obtained an order for such sale, and on the 15th day of July, 1851, she sold the Markland cottage place and a lot on St. George street to William A. Forward for $1,640. That the same land was deeded back t-o her in her own name and right by Forward shortly after for the sum of $1,660.

That the property thus,sold was worth at the time of said sale largely more than the amount paid for same. 11th. That during the period of her administration while the estate was rapidly wasting away, said executrix was purchasing valuable real estate in her own name ; and that, while she had no property of her own when her husband died, and acquired none afterwards, yet in 1851, when she applied for the sale of this real estate, she reports the estate indebted to her in the sum of nearly $5,000, and pretends to have $1,660 to pay Forward with for the purchase of the real estate. 12th.

That Forward was a lawyer and her intimate friend and counselor, and that the transactions were contrived to defeat the elder Anderson’s will. 13th. That she held and used said property as her own until her death, and sold at various times divers pieces of property, and died, possessed of the Mark-land cottage place and other properties of the estate, all of which she left by will to her son, the defendant, Andrew Anderson, Jr.

The effect of all these allegations is, that the said Clarissa C. has mismanaged, wasted and appropriated to herself individually all the estate of which she was the executrix ; and that she' received personal property of the said estate largely in excess of what was necessary to liquidate all the debts without resort to any of the realty; and that therefore the sale of the realty was unnecessary.

This, coupled with the allegation that she had no property of her own at her husband’s death, and acquired none from any source af terwards except from his estate, and with the further allegation that while the estate was wasting away, she was purchasing valuable real estate in her own name and right, seems to us to be tantamount to a direct allegation that she misappropriated the assets of the estate to the purchase of property in her own name and right. The effect of these allegations, coupled with the charge that William A.

Forward was her intimate friend and counselor, and purchased the real estate at her sale for $l,640and shortly after re-conveyed to her in her own individual right for an express consideration of $1,660, and that the transaction was contrived to defeat the elder Anderson’s will, we think amounts to a direct- charge that the sale by her under the order of the County Court was not only unnecessary, but contrived for the fraudulent purpose of converting the title to herself individually, and to defeat and defraud the complainants of their right therein as remainder-men under the will.

The allegation that she had no property of her own to commence with, and acquired none afterwards except from the estate, coupled with the charge that when she applied for the sale of the realty, the estate was more deeply involved in debt than when she started her administration thereof, and that the debts, to pay which she desired the sale of the realty, were chiefly due to herself, savors very much to us, however ironically it may be expressed in the bill, of a direct charge that the debt claimed to be due to herself, and for the.payment of which the lands were chieflly sold, was a fraudulent sham and pretense contrived for the occasion.

We do not think there was any error in overruling this demurrer in the answer, which was the effect- of the decree made.

The effect of all these allegations is, that the personal effects that went into the executrix’s hands were largely more than enough to pay all debts, and that the sale of the lands was unnecessary; and that the executrix mismanaged the estate and appropriated its properties to her own individual uses, and diverted the titles to its realty to herself individually, and with assets of the estate acquired titles to herself individually not only to the realty of the estate, but to other real estate besides.

We think the allegations of the bill make a case of fraud sufficient to be fully answered, and if sustained by the proofs sufficient to warrant relief. Story’s Equity Pleading, (9th ed.),

section 252. The next alleged error that we will consider is the contention of the appellant, that because the evidence in the cause developed the fact that Henry P. Northrop and Thomas Ryan, as executors of Claudian B. Northrop, Sr., deceased, had no interest in the subject-matter of the suit, the decree was erroneously made with their names retained as parties complainant. A sufficient answer to this objection, we think, is, that it was established by the proofs that Claudian B. Northrop, Sr., deceased, was by the deed of ante-nuptial settlement of Emily Constance Anderson, who married George W.

Taylor, made sole trustee of the interest of the said Emily Constance as an heir-at-law and devisee of the elder Andrew Anderson, in and to the properties involved in this suit, and was such trustee at the time of his decease without any consumationof the trust. One of the uses to which such interest was dedicated in his hands as such trustee being, “that he should hold the same upon trust to and for the legal representatives and distributees of the estate of the said Emily Constance such as there shall have been at the Jime of her death.” Claudian B.

Northrop, Sr., trustee, having died leaving a will, Ms executors, the complainants, Henry P. Northrop .and Thomas Ryan, became clothed with the duty, at least, of protecting and preserving the properties conveyed to their testator as trustee by such deed of marriage settlement, and are not improper parties, even if, by reason of the fact that all the beneficiary cestui ■que trustents under said deed of marriage settlement are also made parties complainant, it could be said that they were unnecessary parties.

Story’s Equity Pleading (10th ed.), sec. 510; Ex parte Knust, 1 Bailey, (Eq.), 489; 1 Perry on Trusts, secs. 343, 344; Maudlin, Montague & Co. vs. Armistead, Executor, 14 Ala., 702; Powell vs. Knox, 16 Ala., 346; Bloxham, Governor vs. Executors of Hooker, 19 Fla., 163.

It is contended for the appellant that the relief sought herein is barred by the express provisions of our statute of limitations; and in urging this point it is insisted that the object of the suit is to have certain sales declared void, and deeds cancelled on the ground of fraud, and that our statute expressly bars relief in actions predicated upon fraud.

While it is true that the bill does allege divers fraudulent acts of the- 'executrix, Clarissa C., in the disposition by her of the real and personal estate of her testator, and seeks to have such fraudulent disposition of the realty annulled, yet these averments and the specific relief prayed thereon are only incidents to the main purpose and object of the bill, which is for an accounting generally by the executor of the executrix, Clarissa C., for the properties of all kinds that went into her hands or under her control as executrix, that belonged to her testator, the elder Andrew Anderson.

The bill is by the heirs of the'deceased, Andrew Anderson, seeking an investigation by the court of all the actings and doings of Clarissa C. Anderson, as executrix of his estate, and for an accounting therefor, and for restitution thereof. Viewed from this standpoint, the relief sought as to the realty can not accurately be said to be predicated upon the ground of fraud only. Clarissa C. Anderson, in her capacity as executrix of the will of the elder Anderson, stood towards his property and those ultimately entitled thereto in the relation of trustee of a direct trust.

This suit, looking at its main features, being one by cestui que trustents against the trustee for an accounting generally for the trust properties, is, by our statute expressly exempted from any of its bars. McClellan’s Digest,

section 20, p. 734; Eevised Statutes of Florida, sec. 1283; Amos, Administrator, vs. Campbell, 9 Fla., 187; Bloxham, Governor vs. Executors of Hooker, supra; Joyce vs. Gunnels, 2 Rich. (Eq.), 259. This being true, the bar of the statute does not operate upon a suit brought, against her by the cestui que trust to rectify any improper and illegal disposition by her as such trustee of the trust properties, whether such disposition thereof is tainted with fraud or not.

Because fraud is alleged as the means by w;hich the trustee has diverted the property from its proper and legitimate end, does not render the suit any the less one by cestui que trustents against the trustee of an express trust for an accounting, and for restitution of the subject-matter of the trust, and therefore within the exception to which no express bar of the statute applied.

The bill also presents the complainants in the character of remaindermen instituting their action for recovery of the reversionary property within one year after the death of a life tenant; this life tenant being also the executrix or trustee, and, as we shall see further on, the statute does not begin to run, as against such reversioners, until the termination of the life estate.

It is contended further for the appellant that the cause of action to annul the disposition of the realty made by the executrix, accrued to the complainants in July, 1851, when the sales were, made by her, and that they are barred by time, and estopped by laches in not instituting suit earlier. By the will of Andrew Anderson, Sr., all of his property, real and personal, was bequeathed and devised to his wife, Clarissa C., the executrix of his will, for and during her natural life, with remainder over in fee to all of his children, share and share alike.

It is alleged in the bill, and not denied, but admitted by the answer, that the said Clarissa C. held continued possession of much of the most valuable part of the realty of her testator’s estate from the date of his death until her own decease. Under these circumstances, was it incumbent upon the remaindermen during her life-time to look into the char acter of the title, from time to time, by which she retained that possession of the reversions in which she was left by the testate ancestor at the time of his death, and the right to which, for her life, was created by the will of which she was sole executrix ?

And were they obliged to resort to the courts, pending her life, to cancel and remove fraudulent or other wrongful clouds thrown over the title by her, she, by the will, having the right to possess and enjoy it both as executrix and as life tenant, unless such cloud or title intended to be set up adversely to that of the remaindermen had been brought to their knowledge by direct and unmistakable notice? Especially when the acts that culminated in such wrongful cloud were done by her during her administration of the property as executrix or trustee thereof ?

And does the statute of limitations run against them until the falling in of the life estate ? It is undoubtedly true that remaindermen, having a vested remainder in fee, have the right, pending the continuance of the life estate, to resort to the courts by bill to remove clouds from and otherwise to protect and preserve their reversions. Aiken vs. Suttle, 4 Lea, 108; 1 Story’s Equity Jurisprudence, sec. 704.

We have carefully review ed the authorities cited by the appellant to this point, and many others, but we fail to find any case sustaining the view that the statute will begin to run against them, or that ladies will be imputed to them, unless they have actual notice of ad'oerst rights, before the termination of the life estate, except it be in the case of Woodstock Iron Co. vs. Fulenwider, 87 Ala., 584 (13 Am. St. Rep., 73) in which the facts, in brief, were, that the widow of one Hudson owned a life estate in the lands in controversy based on her allotted right of dower therein.

The administrator of the estate, who was a person other than the dowered widow of the deceased, sold the reversionary estate by order of the Probate Court for the payment of debts of the estate, and the widow purchase d such reversionary estate at such sale, thereby becoming vested with the entire title in fee. She immediately after the purchase at the administrator’s sale, conveyed the property to the defendants by deed absolute, and put them in possession. She at the administrator’s sale paid the purchase money, that was devoted by the administrator to the payment of debts of the estate.

The defendants remained in continuous, open, exclusive possession of the premises under this claim of right for more than twenty years. Within less than ten years after the death of the widow, the heirs of her deceased husband brought ejectment against the defendants (her vendees) to recover the lands because of alleged irregularities and illegalities in the proceedings in the Probat e Court that culminated in the sale to the widow.

The case is silent as to whether the plaintiff heirs had any notice or not of the Probate Court proceedings or sale thereunder, but it does not show that the possession of the defendants was open and adverse. The court there held that the plaintiffs had the right to sue in equity to remove the cloud on the title under the irregular adminisistrator’s sale; and that their failure to exercise this right for more than twenty years was such laches as authorized the inference that the right to do so was barred in any of the modes in which that result may be effected.

This decision, though silent on the question-of notice to the plaintiffs of the Probate Court proceedings, and of the purchase and possession by others than the life tenant, treats the question as though the plaintiffs were affected by notice of their rights in the premises, but knowingly slept over them for more then twenty years, during which time there was open and adverse possession in another. This decision, in view of the adverse possession of the premises by persons other than the life tenant under a claim of right based upon such illegal and void sale, we think is right in principle.

But it differs from the case under consideration widely, in this, that in this case the life tenant, who-is also executrix, remains and dies in possession of the reversionary property, or a large portion thereof, and her heir sets up in her an adverse title acquired through her own sale thereof while acting as executrix; of which sale, and of which adverse claim the complainants are not shown to have had notice or knowledge until after her death; and fraud is alleged in the acquirement by her of the adverse title that is set up.

By a decided weight of the authorities, amply supported by soundest reason, as we think, re - maindermen. are not obliged to resort to this remedy, where the reverting property remains in the possession of the trustee and life tenant with whom it was left by the same instrument creating their reversionary rights, until after the termination of the life estate, unless at least there be clear proof of actual knowledge brought home to them of the abandonment by the life tenant of her claims as such, and the setting up by her of title hostile to that of the reversioners; and the statute of limitations will not begin to run against remaindermen in the absence of such knowledge until after the termination of the life estate.

Kemp vs. Westbrook, 1 Vesey. Sr., 279; McCreary vs. Burns, 17 So. Ca., 45; Kellar vs. Stanley, 86 Ky., 240; Luntz vs. Greve, 102 Ind., 173; Jackson vs. Schoonmaker, 4 Johnson, 390; Wells vs. Prince, 9 Mass., 507; Angell on Limitations, 377; Beattie vs. Wilkinson, 36 Fed. Rep., 646; Evans vs. Benyon, L. R., 37 Ch. Div., 329; Orthwine vs. Thomas, 127 Ill., 554; Hope vs. Norfolk & Western Ry., 79 Va., 283; Pettyjohn’s Executor vs. Woodruffs Executor, 77 Va., 507; Allen vs. DeGroodt, 98 Mo., 159, (14 Am. St. Rep., 626); Lindley vs. Groff, 37 Minn., 338; Wallingford vs. Hearl, 15 Mass., 471; Fleming vs.

Burnham, 100 N. Y., 1; Smith vs. Patterson, 95 Mo., 525; Jones vs. Freed, 42 Ark., 357; Jackson vs. Johnson, 5 Cowen, 74; Ball vs. Johnson’s Executors, 8 Grattan, 281. It seems to be well settled, and we cannot conceive how it can be otherwise, that the possession of the life tenant can not, from the very nature of things, ever be adverse to the rights of the remaindermen. So long as the life tenant lives, no lapse of time can ripen a possessory title in the life tenant as against the reversioners. See authorities supra, and 1 Washburne on Real Properiy, 97, and authorities there cited.

The life tenant under the will here died in 1881, in possession of much of the realty, and that possession is shown to have been continuous from the death of her husband and testator, the elder Anderson, up to the day of her death. This suit was instituted by the reversioners in 1882, within one year after her death. There is, therefore, no bar by any express provision of the statute, no matter from what standpoint we view the case; whether we treat 'Clarissa C.

Anderson as tenant for life holding the property in her capacity as such under the terms of her testator’s will, or whether we treat her as an undischarged executrix and trustee holding the properties of the estate in her capacity as such up, to the date of her death.

The conclusion that we have reached from the evidence is, that she was never discharged or relieved from her position, duties and responsibilities as executrix or trustee of the estate of the elder Anderson ; but continued to be such executrix, clothed with all the duties, responsibilities and trusts imposed upon her by that position, so far as these complainants are concerned, up to the day of her decease.

And it is upon this ground that we base our conclusion that the complainants as remaindermen or devisees under the will of the elder Anderson are not barred by any statute of limitation from seeking, as they do, an accounting from her, at the hands of her executor, for the properties devised to them by the will of which she was the executrix at the time of her decease.

The appellant contends, and the allegation is made in his answer, that this executrix was discharged, but the only proof of the fact is the filing in evidence of a notice made by her that she would apply for final discharge, in the following words: “Notice is hereby given that in foco months from the date hereof, I will file my final accounts in the office of the Honorable Judge of Probate of St. Johns county, for settlement, allowance and final discharge.” Appended to this notice is proof by affidavit of one E. B. Gould, made before G.

Humphreys, Judge of Probate, to the effect that said notice was, on the 20th of March, 1852, posted at the post office, and at the Judge of Probate’s office. The law as it existed then, and as it stands to-day, authorizes the discharge of an executor or administrator only after notice of the intended application for discharge has been published for six months in one newspaper, at least, nearest the place where letters were granted. Act of February 15th, 1834 ; McClellan’s Digest, page 211 ; sec. 1876 Rev. Stat. Fla. This court, construing this statute, in Gadsden vs.

Jones, Admr., 1 Fla., 373, said: “ Before the court can hear the application of an executor or administrator under the provisions of this act, before it can even take jurisdiction of the case at all, six months'1 notice of such intended application must be given in one or more of the gazettes nearest the place where the letters were granted.” The notice introduce! here to establish, as we suppose, a presumption of discharge is for two months only, and even then was made public only by posting, a mode of publication that, in such cases, at no time seems to have been contemplated by our statute.

Had a final discharge been granted upon such a notice, it would have been a fraud upon the law, and would have been worthless and void. The notice introduced here to establish the fact of discharge, then, proves nothing, and does not give rise even to a presumption that there might have been a discharge. And there is no proof that she ever made any final accounting as executrix.

Never having been discharged as executrix, she occupied the relation, at the time of her decease, of trustee ■ towards the complainants, and towards all properties of the estate that had not been properly disposed of, and the defendant, Andrew Anderson, Jr., having been made executor of her will, and duly qualified as such, became clothed at once with the character of trustee over the properties that she held as trustee, and as such substituted trustee, is amenable to an accounting therefor, to the extent hereinafter indicated, to the cestui que trustents in a court of equity.

This court said in Governor for use of, etc., vs. Executors of Hooker, 19 Fla., 163: “He will not be allowed to accept the trusts created by his immediate testator, and to repudiate those with which his testator was charged.” Because of this conclusion that we have reached, that Clarissa C.

Anderson was never relieved or discharged from her position as executrix and trustee of this estate, and that the suit is properly one by cestui que trustents seeking a general accounting from the trustee for the properties subject to the trust, it becomes evident that there is no foundation for the contention of the appellant that the complainant’s remedy was at law' by ejectment, and not in a court of equity. It is further contended for the appellant that the complainants are barred of any remedy in equity, apart from the express bar of the statute by laches.

In considering this question, the dual character of the appellant’s testatrix, Clarissa C.

Anderson, 1st, as executrix or trustee of the estate of her deceased husband, and, 2d, the position of life tenant that she had the right to hold under her testator’s will, and that she might have held towards all of his property not properly consumed in the payment of his legal liabilities, had she been properly relieved of her liabilities and responsibilities as executrix, must be borne in mind in connection with the nature of the relief sought by the bill; and the dual attitude of the complainants: 1st, as devisees under the will generally, seeking an accounting from the executrix of the properties entrusted into her hands as such, and 2nd, the character given to them by. the will as reversioners entitling them to the corpus of the property devised only at the termination of the natural life of she that was executrix.

And wre enter the discussion of this feature of the case with the enunciation of some general principles of law that are settled beyond controversy, and that are applicable to a proper decision of the question under consideration : 1st. That laches is a neglect to do something that, by law, a man is obliged or in duty bound to do. Sibag vs. Abitol, 4 Maule & Selwyn, 462 ; Wilmot vs. Barber, L. R. 15 Ch. Div., 96; Weldon vs. Dicks, L. R. 10 Ch. Div., 247; Murray vs. Palmer, 2 Sch. & Lef., 474. 2nd. That the application by the courts of the doctrine of laches depends upon the circumstances of each case. Bryan vs.

Kahs, 134 U. S., 126; Bowden vs. Layland, L. R. 26 Ch. Div., 783 ; Platt vs. Platt, 58 N. Y., 646 ; James vs. Throckmorton, 57 Cal., 368 ; 1 Perry on Trusts, sec. 230. 3rd. That no laches can be imputed to reversioners in a contest between them and the tenant for life over the reversionary property until after the termination of the life estate, unless it be shown clearly and unequivocally that before that time they had actual knowledge, of an abandonment by the life tenant of her status as such, and of a holding of the property by her under a different and adverse right.

And that the onus of showing such notice or knowledge, as, -when coupled with long acquiescence, would amount to laches, is on the party urging laches as a defense. Life Association vs. Siddal, supra; Cooper vs. Green, 3 DeG., F. & J., 57; Haynie vs. Hall’s Executor, 5 Humphreys, 290; s. c. 42 Am. Dec., 427; Larzelers vs. Starkweather, 38 Mich., 96; Lux vs. Haggin, 69 Cal. ,255 ; Massie’s Administrators vs. Heiskell’s Trustee, 80 Va., 789 ; 2 Perry on Trusts, sec. 850 ; McCarthy vs. McCarthy, 74 Ala., 546; Randall vs. Errington, 10 Ves. Jr., 423 ; Duke of Leeds vs. Earl of Amherst, 2 Phillips (22 Eng. Chy.), 117.

And it is for the party urging laches to show when his adversary acquired a knowledge of the truth, and to prove that he knowingly forebore to assert his right. Lindsay Petroleum Co. vs. Hurd, L. R. 5 App. Cas., 221; Bennett vs. Colley, 2 Mylne & Keen (7 Eng. Chy.), 225; Paschall vs. Hinderer, 28 Ohio St., 568; Roach vs. Caraffa, 85 Cal., 436 ; Orthwine vs. Thomas, 127 Ill., 554; Pomfret vs. Windsor, 2 Ves. Sr., 472; March vs. Russell, 3 Mylne & Craig, (14 Eng. Chy.), 32 ; Bausman vs. Kelley 38 Minn., 197 ; Shannon vs. White, 6 Rich. (Eq.), 96 ; McClure vs. Ashby, 7 Rich. (Eq.), 430. 4th.

That in cases of continuing trusts, that are strictly such and recognized and enforced in courts of equity only so long as the relation of trustee and cestui que trust continues to exist, no length of time will bar the cestui que trust of his rights in the subject of the trust as against the trustee, unless circumstances exist to raise a presumption from lapse of time of an extinguishment of the trust, or unless there has been an open denial or repudiation of the trust brought home to the knowledge of the cestui que trust which would require him to act as upon an asserted adverse title. Robinson vs.

Hook, 4 Mason, 139 ; Baker vs. Whiting, 3 Sumner, (U. S. C. C.), 475 ; Boone vs. Chiles, 10 Pet., 223 ; Kuton’s Heirs vs. Kuton’s Administrators, 20 Mo., 530; Kane vs. Bloodgood, 7 Johnson’s Chy., 89.

With this statement of the principles that govern in this case, we will now apply them to the pertinent facts and circumstances that have been established, as we think, in the proofs, for the purpose of ascertaining whether, and to what extent, the complainants, considered either as ordinary devisees, or as remaindermen under the limitations of their ancestor’s will, are to be charged with laches in their effort to recover the devised properties that they find in kind in the hands of the person at her decease who w~as trustee of such property, and who had the rights also, by the will of her testator, of a life tenant in such property.

It is admitted that the elder Andrew Anderson died leaving a will; that it was duly probated; and that the defendant’s testatrix, Clarissa C. Anderson, was named in and qualified and acted as the sole executrix thereof. That she, under said will, took charge, control and possession of all the real and personal properties of said estate.

That she died in 1881, and at that time still retained in her possession a considerable portion of the real estate of her testator, and some little of the personalty in kind, besides some real estate that, it is clearly established, she acquired title to by means of obligations enuring from others to 'the estate.

The proofs, we think, establish clearly the further facts that all the complainants and all of those in whose right they claim by inheritance were continnously non-residents of this State from the time of the death of the elder Anderson np to the filing of their bill herein, at great distances from the locus of the properties and the scene of the administration, with no evidence of any direct communication between them and the executrix by correspondence or otherwise, except for a short while during the first years of the administration.

That the said Clarissa C., as executrix, in 1851, obtained an order from the Probate Court of St. Johns county for the sale of, and, under it, did sell all of the real estate then standing in the name of Andrew Anderson, Sr., for the alleged payment of a debt of $2,000, contracted after her testator’s death by her as executrix, with the sanction of some of those through whom complainants claim, and a claim of upwards of $4,000 which she, as executrix, brought against the estate for “advancements,” and for the expenses of her administration. That the terms of that sale, as advertised, were to be for cash.

That at that sale William A.

Forward, a personal friend of the executor, bid off all the property sold in one single lump, although it consisted of separate detached lots, for the sum of $1,640 ; that he did not comply with the advertised terms of the sale by paying cash therefor, but gave to the said executrix, not as executrix, but in her own individual name and right, his note for the amount of his bid at said sale, payable twenty days after its date, July 15th, 1851, secured by a mortgage to her individually on the same property purchased at the sale ; and that on the same day, July 15th, 1851. she, as executrix, conveyed all of said property to him by deed in lee; the mortgage containing a clause expressly permitting her to retain possession of all the mortgaged property.

That on the 80th of August, 1851, Forward conveyed the entire property to Clarissa C. Anderson, in her own name and right, by deed in fee, in consideration, as expressed in said deed, of $1,660 ; and on the same date the said Clarissa C. executed to him a cancellation of his mortgage. We think the proof further establishes the fact that the said Clarissa C. continuously retained possession of all of said real estate, except such parts thereof as she afterwards sold and conveyed to others, from the death of her husband until her own decease, without, any break in her possession.

Under this sale by order of the Probate Court she claimed, and the defendant, as her sole devisee, claims that the rights of the complainants as reversioners were divested, and that the title of the said Clarissa C. became absolute thereto.

In considering-the question as to whether these cestui que trustents and reversioners are in laches in their present assault upon this transaction, we have to look to the evidence to see whether that actual knowledge of these Probate Court proceedings and the sale thereunder to Forward, and by him back to the said life tenant in fee, was carried home to the complainants, and when it was so brought to their knowledge. The onus, as before seen, of showing this knowledge, and time of its acquirement, is on the defendant.

The only evidence we have from the defendant on this point is, that his mother, the said Clarissa 0., told him that she had notified Claudian B. Northrop. We hardly think that this hearsay statement coming’ from the lips of the .party charged with wrong doing can be seriously urged as an establishment of the fact that the complainants, or those through whom they claimed, were possessed of the requisite actual knowledge on this subject. The defendant contends, however, that the record of the deeds from the said Clarissa C. to Forward, and by Forward to her, wras notice sufficient to them.

We can not agree with this contention.

The 'continued, unbroken possession, of the trustee or executrix, who had the rights also of a life tenant, in the absence of actual knowledge to the contrary, was of itself an evidence upon which these remaindermen had a right to rely, that she held it thus continuously in right of her executorship or life tenancy as created by her husband’s will; and, so long as she continued in its possession the remaindermen had no cause to look or enquire into the tenure by which she held, and wrere not obliged to look to the records, at least in the absence of actual knowledge of an adverse holding by her under another title hostile to that created by the will of her husband under which she first acquired that possession.

Leach vs. Ausbacher, 55 Pa. St., 85; Varney vs. Stevens, 22 Maine, 331; McCarthy vs. McCarthy, 74 Ala., 546; Bowden vs. Layland, supra; Maul vs. Rider, 59 Penn. St., 167; McMahon vs. Mc-Graw, 26 Wis., 615; Duffitt vs. Tuhan, 26 Kansas, 292. Even were we to regard the assertion of the defendant : “That his mother had told him she had notified Claudian B. Northrop,” as competent evidence to establish the fact asserted, it could not avail in this case as notice to the complainants, since none of them claim through Claudian B.

Northrop, but through his wife, Hannah Eliza; and in such casethe knowledge or acquiescence of the husband could not bind the married woman, nor those who claim through her. Underwood vs. Stevens, 1 Nerivale, 712. If we view this feature of the case from the standpoint of the appellant, as being one for relief on the ground of fraud, our statute (McClellan’s Digest, sec. 10, p. 733) itself fixes the time of the^Bpual of the cause of action at the date of the discovery by the aggrieved party of the facts constituting the fraud. The above authorities sustain the idea that there can be no constructive discovery.

In Rolfe vs. Gregory, 4 De G., J. & S., 579, it is held: “As the remedy is given on the ground of fraud, it is governed by this important principle, that the right of the party defrauded is not affected by lapse of time, or, generally speaking, by anything done or omitted to be done, so long as he remains, without any fault of his own, in ignorance of the fraud that has been committed.” The same rule in effect is reiterated in Bailey vs. Glover, 21 Wallace, 342, and in Traer vs. Clews, 115 U. S., 528. The possession by the executrix or life tenant, Clarissa C.

Anderson, of the reversionary property being entirely consistent with and permitted by the title by which the reversioners could claim only at her death' was, of itself, calculated to deter them from enquiring for any other title not consistent therewith, and furnishes a natural and, as we think, sufficient excuse for their failure to examine the records.

And in this connection it may be said that1 the continued absence from the State of all the complainants, 'and their consequent want of access to the records, and to the knowledge of the transactions that might have been general m the immediate community, is a circumstance that should weigh in favor of their want of knowledge on the subject. Holt vs. Wilson, 75 Ala., 58; Heirs of Ware vs. Brush, 1 McLean, 538.

The fact, too, that in the deed of marriage settlement executed by Mary Anderson, one of the daughters of the elder Andrew Anderson, niffe^n 1855, several years after this Probate Court sale, he rone-fourth interest in this reversionary property is expressly conveyed to the trustees named in said instrument, along with other property, is a strong circumstance in favor of her want of knowledge at that time of the divestiture of her rights as a reversioner by means of these Probate Court proceedings.

The bill and the developments from the proofs present the case to our minds as being one where reversioners, entitled to the corpus of the estate only at the termination of the life of one who has the rights of a life tenant, and who is also executrix and trustee of the property, quietly, and without fault of their own, waiting for the time to arrive when they can claim that property as their own; during all of which period of waiting they see the person in the enjoyment of its actual possession whom they know has the right to enj oy it pro tern, by the same instrument that gives them their rights when her life is ended.

When the legal period of their waiting is over they promptly move to claim their patrimony, and are met at the threshold with the assertion that in the long past she who was trustee, and whom these reversioners had just right to believe was life tenant, had purchased the property, and during all these years of their silent and trustful waiting, had been holding and enjoying it, not as trustee, not as life tenant, but adversely, en autre droit.

Under these circumstances we think that the complainants were not under any obligation or duty to make search or enquiry for any other title by which sucli trustee and life tenant held the possession of these properties than the one under which she first entered into its possession; and we do not think that laches can be imputed to them under the circumstances for failing to make such enquiry, or for their failure to resort to the courts sooner than they did, viz: within a year after her death.

As we have before seen, there is no proof that this executrix was ever discharged or relieved of her duties and responsibilities towards this estate as direct and continuing trustee thereof; and there is no proof that the attempted change by her of her attitude towards the property from that either of trustee 01 life tenant to that of absolute and-adverse owner was ever brought home directly or indirectly to the actual knowledge of the complaining cestui que p'ustents.

Neither are there any circumstances in the pleadings or proofs that give rise to a presumption, from lapse of time, of a repudiation by her of her trust or of her rights as life tenant, such as would have put the co'mplainants upon notice of the setting up of an adverse title. Our conclusion is, therefore, that the complainants are not barred either by any express provision of the statute of limitation, or by lapse of time through any apparent or unexcused laches.

The appellant contends further that the complainants’ bill is defective because it fails to affirmatively disclaim that the complainants’ ancestors were also without knowledge of the mismanagement and appropriation of the estate alleged to have been made by the executrix, and of the Probate Court proceedings by which the title to the lands of the estate were devoluted into the individual name of the executrix.

There is a well-established rule affecting more directly the pleadings in a court of equity to the effect that where a bill upon the face of its allegations shows long acquiescence and laches by the complainants in the assertion of their claims, then it becomes necessary for them, by way of excuse for such apparent acquiescence and laches, to allege and prove some actual hindrance or impediment to the seeking of their rights, such as concealment of, or faultless want of knowledge of facts, and if they fail to allege or prove such excuse or reason for the long delay, laches will be imputed to them, and the courts will refuse their aid by reason thereof.

Badger vs. Badger, 2 Wall., 87. And if the bill shows such laches on its face without any allegations excusing it, the defect can betaken advantage of by demurrer. Bercy vs. Lavretta, 63 Ala., 374 ; Maxwell vs. Kenedy, 8 How., 210. But-we do not think this bill, or the case made thereby,, falls within this rule.

Taken as a whole, it does not show a case of long acquiescence, or its consequent laches, but on the contrary, it carries on its face a just and natural excuse for the delay in the application to-the courts for the relief now asked — in the fact that the complainants all along saw the person in possession of the properties, who, by their grandfather’s will, was entitled to that possession both as executrix and as life tenant. Suppose they had applied earlier for the relief now sought, what would have been the result of the litigation ?

Clearly, under the limitations of the elder Anderson’s will, no litigation over his estate instituted prior to the death of Clarissa C. could, have resulted in dispossessing her of any of the properties, real or personal, nor could it have resulted in an immediate enjoyment of any such property by the-complainants until after the termination of her natural life. So that the bill, upon its face, does not present a case where it was necessary for the complainants to excuse self-evident laches by allegations of ignorance of facts.

And when the proofs came m it further appeared, as we have seen, that the defendant’s testatrix was never divested of her character as trustee and executrix; and that she has never, as. such, rendered any full and final accounting for the-properties that went into her hands as such. And 'that we have to deal with her acts as trustee in reference to the properties of the estate.

Having found that the executrix, Clarissa C., was never discharged or relieved in any way of her position of trust as executrix, and that she has never rendered • any final or full accounting of her trusteeship, and that she was still such trustee at the time of her death, we will now, in connection with the subject of laches, en- ■ quire how far and to what extent' it would be proper, under all the circumstances oí this case, to require an •accounting from the executor of the executrix for the properties that went into the hands of the latter as •such.

That she, as executrix, was required to make ■annual accountings of her administration, and, within a reasonable time, a full, minute and final accounting thereof, are matters of law which the complainants were bound to take notice, and their ignorance thereof furnishes no excuse for their delay in demanding such an ■accounting if they saw proper to have, or desired one. Campan vs. Godfrey, 18 Mich., 27; Adams vs. Guerard, 29 Ga., 651; Brist vs. Yeaton, 101, Ill, 242.

Before moving for such an accounting the complainants Nave waited for more than forty years since the executrix, as such, took charge of the estate; and until after her lips are forever closed to all explanation, in death, -and until all witnesses conversant with her actings as executrix are dead, and until the archives of the office where the record evidence of her acts should have been •kept, have passed through the recklessly destructive mill of a civil war — the office itself, the proofs show, having been used as quarters for soldiery.

All the evidence that we have left upon the subject of her administration, and all that, it appears to us, is now procurable are a copy of appraisment or inventory of the personal jmoperty and her annual accounts filed in the years 1841, 1842, 1846, 1847 and 1848, but none of them appear to have been passed upon or approved by the Probate Court, except the one filed in 1847.

There is nothing to show what the actual indebtedness of her testator was; indeed, no evidences of indebtedness appear, except the record of a decree of foreclosure of a mortgage on the negroes of the estate for $5,800, rendered on the 14th of November, 1840, in favor of one McRae, against her as executrix. Other items of indebtedness are represented in her extant accounts to have been paid by her, but the evidence of the claims themselves, or the vouchers received by her on their payment, are absent.

Under these circumstances it would be requiring the impossible to oblige this defendant, as executor of the executrix, to go at this time into a strict, minute and accurate accounting for all the items of personal property that went into his mother’s hands as executrix of the elder Anderson.

And our conclusion is, that under the rules go erning courts of equity, the delay of the complainants in asking for such an accounting must be visited upon them to the extent that no strict or minute accounting for the personalty of the estate will now be accorded ex-c.>pt where it is found in kind in the hands of the executrix at her death, with no proof from which a presumption could arise that it was ever properly administered upon by her.

Neither do we think that it would be proper at this time, under all the circumstances, to make any item or items in the annual accounts of this executrix that now survive her the basis of a monetary charge either in favor of or against her estate. Many items therein stated as credits to herself are clearly wrong and illegal upon their face, but after the death of all the parties and the obliterations of evidence consequent upon the great lapse of time, it would be inequitable to single out these items, because their amounts may have been properly applied elsewhere.

As to the personalty of the estate that has been disposed of by her it would keep the conscience of equity clearer to leave the disposition of it made by her in the same state of oblivious repose, uncertainty and doubt that the unsatisfactory proofs herein found them in at the date of her death. Morrison's Executor vs. Householder’s Administrator, 79 Va., 627; Barnwell vs. Barnwell, 2 Hill’s Chy. (So. Ca.), 228; Raynor vs. Pearsall, 3 Johnson’s Chy., 578; West, Administrator, vs. Thornton, 7 Gratt., 177; Weatherford vs. Tate, Executor. 2 Strobh. Eq., 27; 12- Am. & Eng. Ency. of Law, 589, and authorities cited.

In Lafferty vs. Turley, 3 Sneed (Tenn.), 157, a case analagous to the one under consideration, the administrator rendered' no accounts whatever, not even filing an inventory of the estate. He administered in 1823, and died in 1851. In 1852- a bill was filed against Ms executor by the heirs of his intestate for a full accounting of his administration of the former estate.

The court held that under the circumstances the transactions wmre too much obscured by time, and the danger of injustice too great to enter into a strict and minute accounting, and that to this extent the laches of the complainants must be held to affect their claim.; but certain large sums that the administrator had collected, of -which there wms record evidence, and, that the evidence showed, had never been accounted for or administered in any way, his executor was required to account for.

We turn now to a consideration of the issue as to the validity of the ju’oceedings had in the County or Probate Court of St.' Johns county, by which the appellant claims that his testatrix acquired an adverse title to the realty of the estate of her testator that was found in her possession at .her death. The appellees contend that said proceedings, and the title predicated thereon, are void, because upon their face it is shown that the Probate Court had no jurisdiction to order the sale thereof.

That the jurisdictional fact — ‘‘that the personal estate had been exhausted” — is not shown by said proceedings to have appeared. The appellant, on the other hand, contends that the question of the Probate Court's jurisdiction to order suck-sale can not now be made to avail the complainants, because they have not in their bill raised any such issue, or made any assault upon these proceedings upon that ground.

We agree with appellant’s position, that whether the Probate Court had jurisdiction or not to order this sale, it can not avail the complainants because in their pleadings they have not presented any such issue. The rule is thus stated in Story’s Equity Pleading (9th ed.), sec. 257: “Every fact essential to the plaintiff’s title to maintain the bill, and obtain the relief, must be stated in the bill, otherwise the defect will be fatal.

For no facts are properly in issue, un less charged in the bill; and of course no proofs can be generally offered of facts not in the bill; nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, for the court pronounces; its decree secundum allegata et probata.” Glascott vs. Lang, 2 Phillips (22 Eng. Chy.), 310; Hoyt vs. Hoyt, 27 N. J. (Eq.), 399 ; Eyre vs. Potter, 15 Howard, 42 ; Hart vs. Stribling, 21 Fla., 136; Branerd vs. Arnold, 27 Conn., 616.

Reaching this conclusion, the question of the jurisdiction of the Probate Court to order this sale is eliminated from further consideration in the case. We turn now to a discussion of the necessity for, and the bona tides of, this sale of the realty.

And we announce it as a preliminary proposition that ifRhere was sufficient personal property' that went into ’the hands of this executrix fully to pay all of the debts of the testator, then there was no necessity for the sale of the ..realty; and if the executrix, instead of applying the personal assets to the payment of debts, misapplied them to other purposes, and misappropriated them to her own uses, and afterwards procured the order for the sale of the realty for the payment of debts that should have been paid with the personalty, then, under such circumstances, such sale was, as between the executrix and devisees, a fraud in law upon the reversioners, no matter how regular upon their face the proceedings for such sale may appear, nor whether the court ordering it had jurisdiction or not, and she should not be allowed to derive any benefit therefrom, as purchaser of the trust properties sold.

Although we think it proper, as above shown, to close the door, after such great lapse of time, to a strict and minute accounting by the executrix of the elder Anderson, in her capacity as such, particularly so far as the personalty is concerned, yet we think it proper, under the peculiar circumstances of this case, to resort to the annual returns made by her that are still extant,- as evidence, for any light that they might throw upon the subject now under consideration— the necessity for, and bona fides of, this sale of the realty.

Referring to the appraisement list, still extant, of the personalty, we find that the aggregate total thereof, concluding three negroes and some railroad and. canal stock and nursery of mulberry trees, amounted to the sum of $33,551.66. This included debts due to the estate amounting in the aggregate, those considered good as well as those considered doubtful or bad, to $11,621.41.

The defendant contends that these claims were uncollectable owing ta the financial depression of the times, though her returns show that the executrix did collect a considerable percentage thereof; yet we can give the defendant the benefit of more than this contention, and treat all the debts due the-estate-as bad by deducting their gross sum from the appraisement, and it leaves a balance of $21,930.25 of personalty a& per appraisement.

No comfort can flow to the defendant out of the supposition that the values fixed to the different items in this appraisal were too high, because the extant returns show that wherever sales were made by the executrix of the personalty, the items brought the full snm at which they were appraised,., and in many instances considerably more. The defendant in his answer also .contends that this balance includes $6,300 ©f worthless stock in the Southern Rife Insurance and Trust Company.

Giving him the full benefit of this contention, by deducting the latter sum also, and there isa balance left of $15,630.25, that can fairly be assumed, went into the hands of the executrix with which the debts should have been paid. Indeed it is shown from her returns. still extant,., that up to May 6th, 1843, she had actually recei ved from sales of the personalty and collections the sum of $13,866.06, and at that date she still had fifteen negroes on hand and undisposed of, that were appraised at $6,350.

What the debts of the deceased actually amounted to is nowhere very definitely shown, but from the returns of the executrix in proof we can find only the sum of $7,-938.18 of anything resembling legitimate debts due by him at the time of his death. The bill alleges that the debts amounted to less than $5,000 at the time of the elder Anderson’s death, but the answer denies this and asserts that they amounted to more than twice that amount.

Let us admit this contention of the answer, and even go further and say that they amounted to three times that amount, or $15,000 (though this is a violent presumption, with the lights before us), even then by the defendant’s own showing the dxecutrix had more than enough personal assets to pay them all in full without resort to any of the realty, and without any necessity for the loan of $2,000 affected from Mrs. Peck by the mortgage of the realty.

Instead of paying the debts, however, with these assets, we have the affirmative evidence from her returns that she diverted the large sum of $7,204 towards improving the Markland cottage property. That, of itself, was almost enough to liquidate all the legitimate debts left by her testator, so far as any exhibit of them is made in her extant returns, or even suggested by anything in the record. In her application for the sale of the realty, she represents the debts, for which a sale thereof was necessary, to consist of $4,853.80, alleged to be due to herself for ‘'advancements,” and $2,000 due to Mrs.

Peck for the money borrowed on mortgage, making a total of $6,833.80. The money expended in building upon and improving Markland cottage was considerably more than enough to pay this amount, had it been properly applied. And again the sale of the realty was applied for mainly for the purpose of paying the aforesaid sum of $4,853.80, alleged to be due to the executrix for advances claimed to have been made by her for the estate.

It is alleged in the bill, and practically admitted by the answer, that at the time of the death of her testator she had no property of her own of any kind, and did not acquire any afterwards, save as executrix from the properties of the estate. This, it seems to us, completely negatives the correctness of her claim for advancements made.

The terms of the sale, too, were advertised to be for cash, a circumstance that tended to keep off all bidders except the favored few who could command the cash — and yet we find a friend of the executrix buying in all of the property advertised, in one lumping bid, though the property consisted of detached parcels, and paying no cash therefor, but making his twenty days’ note and mortgage payable to the executrix in Tier own individual right, serves the purposes of the cash for which the advertisement called.

And we find, too, that this note and mortgage never realizes any cash from the purchaser at the sale, but is taken up by the maker thereof by reconveying all of the property -whose purchase money said note represented, within a few days after the sale, to the executrix in her own individual name and right; she. in the mean-time, by express terms of the mortgage itself, retaining the unbroken possession of all the property sold. How Mrs. Peck’s debt of $2.000 was ever paid, and when, does not appear. There is.no evidence that she ever resorted to the property by foreclosure or otherwise.

The presumption is that she must have been paid, else she would have resorted to an enforcement of her lien. Then, as no money was in fact realized directly from this sale, she must have been paid by the executrix; and, as the executrix had no property except from the funds of the estate, the conclusion is irresistable that Mrs. Peck's mortgage was paid out of funds of the estate that were not realized from the sale of realty.

As to the other part of the alleged debts for which the property was sold, claimed to be due to the executrix her self, there is much evidence in her extant retur' that R was made up largely of improper and illegag and wholly unwarranted, credits to herself for her own personal supervision of the improvements put upon the Marldand cottage place, and of other improper items for the hire of the slaves of the estate, for which she gave herself credit, and of illegal charges, as credits to herself, for the work of the slaves of the estate in improving Markland cottage, and of charges for her commissions as executrix.

Nowhere in any of her exlant returns is there any charge for any moneys “advanced" by her 'for the estate. As she had no property of her own from which to make advancements, we must conclude that the claim for advancements was mythical.

Another fact stronlgy in support; of the allegation of the bill that the ■ executrix absorbed the estate and appropriated its properties to her own individual uses, and consequently that the sale of its lands was unnecessarily effected by her for the ostensible purpose of paying debts, is the transaction in reference to the Felicia Garvin lot that had been sold by her testator in his lifetime to the said Garvin for $2.500; $1,250 of this was paid prior to the testator’s death, leaving a balance of $1,250 still due of the purchase price.

After the testator’s death the executrix instituted an action in the courts in her own individual name, to foreclose the vendor’s lien — a debt due to her testator’s estate. She obtained a decree, and the property being sold to satisfy the decree, she also took title to that piece of property in her own name individually, instead of to herself as executrix, with no accounting therefor. Still another fact showing a misappropriation of the properties of the estate, instead of paying its debts therewith, is the sale of a slave, “Cmsar,” to one Papv for a lot of land in St.

Augustine, the title to which she took in her own name. Still another fact pointing in the same direction, in view of the admission that she had no property of her own, and sustaining the charge in the bill, that while the estate was rapidly wasting away, she was purchasing real estate in her own name, is the purchase by her for $400 in cash paid, and the conveyance to her individually on the 28th of April, 1851, of a lot in St. Augustine, by B. A.

Putnam, as trustee of one Emily Southwick; and this purchase, too, was made by her only a month or two before she found it necessary to sell the remaining lands of the estate for the payment of its debts.

Still another piece of proof that goes far towards sustaining the allegations of the bill as to the want of necessity for the sale of this realty, and the improper appropriation of its assets to the individual uses of the executrix, is the transaction in reference to the lands mortgaged to the executrix by Peter Sken Smith, to secure the purchase price of the stock in the Southern Life Insurance & Trust Company, bought by him from the executrix. Among the assets of said estate were $6,300 of the stock of said company that was sold by the executrix to said Smith at its face value on time.

To secure the payment of this sum, Smith gave to the executrix his note, secured by mortgage on 1,000 acres of land at St. Diego, besides lots 7, 14, 16, 23, 24, 25 and 26 in North City, six lots in the Panjaud plantation, and the lots known as the Whithurst and Crosby lots, all in St. Jolms county.

She did nothing towards collecting or enforcing this mortgage, but, the property covered thereby being assessed and sold for taxes, she purchased the same at tax sale, and took the title thereto in her own name individually; and, under that tax title she has held the same ever since, with the exception of parcels thereof since then sold and conveyed by her to others at different times.

The answer of the defendant claims that she was discharged in 1852, and that she made no returns or accountings after that time, yet we find from the proofs that she sold and conveyed portions of these Peter Sken Smith lands, purchased by her at tax sale, in the years 1869, 1873, 1874, and in 1876; and there is no pretense even of any accounting therefor to anyone.

Besides all this, we find affirmative evidence in the record that the executrix retained at least three of the negroes who were never sold, but were emancipated after many years; and that she also had at her death personal property consisting of silver-ware and furniture that belonged to the elder Anderson, that was appraised as part of her estate at a valuation of $537.20.

For all of these reasons we are driven irresistibly to the conclusion that the dealings of this executrix with' the personal effects and real estate of her testator were not Ixnui fide, and that the sale of the real estate procured to be made by her was entirely unnecessary; and that its sale resulted from and grew out of the prior misapplication made by the executrix of the personal assets of the estate, if not for the express purpose of diverting the title to herself individually. There is no proof that there was any prior understanding or collusion between W. A.

Forward and the executrix, that he should for her use and benefit, purchase this property at her sale thereof; and, in the absence of convincing proof of such character that it could not be explained by them w'ere they now living, we must give them the benefit of the conclusion that there was not any such prior understanding between them, and, consequently, that there was no fraud on Forward’s

part in this transaction. Still we think that the entire management of the estate by the executrix that led up to and finally culminated in the procurement of the sale by her of the realty was a fraud in law, if not in fact, upon the rights of these complainant remainder-men, of which fraud she all along had full cognizance; and whether \\r. A.

Forward was an innocent purchaser at said sale or not, the moment he re-conveyed all of said property back to her, the original party whose conscience stood bound by the violation of the trust, it became re-invested with all of the equities and trusts in her hands with which it was clothed before its sale to the innocent purchaser, if such he was; and subject, in her hands, to the same proceedings that could before have been available to rescue it from wrongful diversion, just as though there had been no sale thereof by her. This rule is thus stated by Mr.

Story in 1 Story’s Equity Jurisprudence (11th ed.), Sec. 410: “It is wholly immaterial of what nature the equity is, whether it is a lien, or an encumbrance, or a trust, or any other claim; fr>r a bona fide purchase of an estate, for a valuable consideration, purges away the equity from the estate, in the hands of all persons who may derive title under it, with the exception of the original party whose conscience stands bound by the violation of his trust and meditated fraud. But, if the estate becomes re-vested in him, the original equity will re-attach to it in his hands.” Kennedy vs.

Daly, 1 Scholes & Lefroy, 355, 379; Vattier vs. Hinde, 7 Peters, 252; Troy City Bank vs. Wilcox, 2-1 Wis., 671; Johnson vs. Gibson, 116 Ill., 294; Allison vs. Hagan, 12 Nev., 38; Clark vs. McNeal, 114 N. Y., 287.

We have before seen that the onus of proving knowledge and notice of illegal and fraudulent acts is upon the party who sets up the defense of laches in the institution of proceedings to avoid such fraud, and we have seen that no proof has been submitted by the defendant fixing notice and knowledge upon the complainants of these transactions, but it is contended by the appellant that they are chargeable with notice from the publication for the executrix’s sale of these lands, and from the record of the deeds from the executrix to Forward, and from Forward back to her.

The authorities seem to us to be adverse to this contention. Mrs. Anderson occupied the position of trustee towards this property at the time she sold it to Forward, and at the' time Forward re-conveyed it to her, and, as she was never discharged, as we have seen, from her position of trustee, she occupied that relation to it at her death. In Oliver vs.

Platt, 3 How., 411, it is said that the “time begins to run against a trust only from the time when it is openly disavowed by the trustee who insists upon adverse right and interest, which is f ally and unequivocally made known to the cestui que trusts This doctrine is sustained also in I-Iearstvs. Pujol, 44 Cal., 235, in and Janes vs.Throckmorton, 57 Cal., 368, and in Knight vs. Haynic, 74 Ala., 542, and authorities supra.

At best all that could, under any circumstances, be claimed for from the Probate Court proceedings, the advertisement of the sale, and from the record of the first of the last two mentioned deeds, would be that it might in some cases be “constructive notice.” This will not do as between cestui que trust and trustee, the knowledge to be shown must be actual before the lapse of time can set the doctrine of laches in motion in her favor. In re Marsden, L. R. 26 Ch. I)iv. 783.

While, as before seen, it was the right and privilege of these complainants as heirs-at-law of the elder Anderson to call for an accounting • from Mrs. Anderson in order to close up her administration of this estate in her attitude towards it as executrix, still, it must be remembered that even after so closing it up by a final accounting, she, under the will, still had the right to hold, use and control all of it as life tenant until her decease.

The remaindermen, knowing this fact, had a right to rely upon her good faith and honesty, and, under these circumstances, were not obliged to look into her administration as executrix; but, knowing ail along that she was still living and still in possession of properties left by their devisor, they were quite naturally lulled by that possession into a feeling of repose that- all was well with their patrimony. In Pomfret vs. Windsor, 2 Vesey, Sr.. 472, Lord Hardwicke says, in the case of a remainderman : “He has no reason to look into the natural determination of the estate.” In Pepper vs.

Ratz, 38 Mich., 96, the court says : “Where one has only constructive notice, laches is to be predicated of an intentional neglect to make inquiry rather than mere carelessness to do so.” Duffit vs. Tuhan, 28 Kansas, 299; Life Association of Scotland vs. Siddal, 3 DeG., F. & J., 74; McMahon vs. McGraw, 26 Wis., 622; Bowden vs. Layland, L. R. 26 Ch. Div., 783. So long as Mrs.

Anderson remained in possession of these lands, the devisees had the right to look upon her possession thereof as being either as executrix, or in the right of her life tenancy, and were under no obligation to look for any other title than the one under which she first took that possession. The deed from Forward to her did not even have the effect of being constructive notice to them, because it did not come in the line of their title, and they were in no position to anticipate or suspect the existence thereof. Billings vs. Stark, 15 Fla., 297: Lightner vs. Mooney, 10 Watts, 407; Keller vs.

Nutz, 3 Serg. & R., 246; Maul vs. Rider, 59 Pa. St., 171; State ex rel. vs. Trustees I. I. Fund, 20 Fla., 406; Ely vs. Wilcox, 20 Wis., 557; McCarthy vs. McCarthy, 74 Ala., supra. We do not think that it has been shown that these complainants or their ancestry ever had any such knowledge or notice of the transactions involving the sale and conveyance of the realty of this estate as would visit upon them the charge of laches in moving to maintain their rights therein, or that tends to estop them on the theory of acquiescence therein.

As to the property mortgaged by Peter Sken Smith to the executrix, and purchased by' her at tax sale in her own individual name and right; inasmuch as she held this property as security for so large an indebtedness that she made no effort to collect or enforce out of the property, and for which there is no pretence even that she ever accounted; and that it seems •from the allegations of the answer, was all that she could ever have reaped from the mortgage, viz: the mortgage land itself, we are of the opinion that, under all the circumstances,. her tax title purchase thereof should enure to the benefit of the remainder-men, who would have been entitled to the fruits of the mortgage had she purchased, it at a foreclosure sale thereof, instead of at the sale: and that her executor should account and render to the complain* aints- their proportionate share of all sums realized by his testatrix from the sales of any and all portions thereof that may have been sold and conveyed by her during her life time, with interest thereon, from the date of her death.

Varney vs. Stevens, supra; Daviess vs. Myers, 18 B. Monroe, Oil; Whitney, Admr., vs. Salter, 36 Minn., 108. As to the Felicia II. Garvin lot, bought by Mrs. Anderson in March, 1844, at the sale to enforce the vendor’s lien of the estate on same; we think that she should account for the price at which she sold and conveyed it, with interest from her decease.

It is further contended for the appellants that the Crafts and their trustee, De Saussure, who did not join as complainants, but were made parties defendant in this cause, are not entitled to any share in the relief to-be granted, because they complained of nothing, and asked for nothing, and that the decree as to them is erroneous because thereof. There is nothing in this contention.

The Crafts are entitled, in their proper proportion, to the same relief, and in virtue of the same right, as are the active complainants herein, and were necessary and proper parties to the suit, in order to a complete determination of all interests involved; and because they remain passive and are consequently made parties defendant, does not operate as a waiver or surrender of their rights in the premises.

The defendant, Andrew Anderson, is himself entitled to a one-fourth share in all the properties involved in this litigation, under the will of the elder Andrew Anderson, as a devisee under said will; because he does not claim it herein, in the same right as do the other reversioners, but on the contrary, is a defendant actively opposing and denying their claims, furnishes no reason why he should be deprived of his interests acquired through the same source as the others.

Opr judgment is that the complainants and the defendants Crafts are entitled to a decree for their respective shares and interests according to the provisions of the will of Andrew Anderson, Sr., in and to all of the real estate included in the deed from William A. Forward to Clarissa C.

Anderson that was found in her possession and the title to which was standing in her name at the time of her decease ; and in and to all of the lands motgaged to her by Peter Sken Smith, as executrix, and which she bought at tax sale, the title to which remained in her at her decease ; and that the defendant, Andrew Anderson, as her executor, should account to them for their pro portionate parts of the rents, incomes and profits of all of such real estate as remained in her name from the date of her decease, with the legal accumulation of interest thereon since that date ; and that it should be referred to a master to ascertain and report what portions of said real estate that was conveyed to her by W illiam A.

Forward, and by said tax deed of the Peter Sken Smith lands, have been sold and conveyed by her to other parties and the prices at which she sold the same ; as well also as the price at which she sold and conveyed the lot known as the Felicia M. (xarvin lot that she bought at the U. S.

Marshal's sale under the decree to enforce her testator’s vendor’s lien thereon, with interest thereon from the date of her decease ; and that the defendant, Andrew Anderson, as her executor, should account to the complainants and the defendants Crafts for their respective shares and proportionate parts thereof according to the provisions of the will of Andrew Anderson, Sr.

And that the complainants and defendants Crafts are also entitled to their respective proportions, according to said will of Andrew Anderson, Sr., in and to all of the personal effects of the said Andrew Anderson, Sr., deceased, that were found in kind in the hands of the-said Clarissa C. Anderson at her decease. And the decree of the court below appealed from is hereby ordered to be modified so as to comply herewith.

An application for a rehearing in this cause has been made, and is denied, because it presents no matter of either law or fact that has not received that careful consideration by the court that the importance of the issues involved demanded.