Page:Federal Reporter, 1st Series, Volume 10.djvu/84

 72 PEDEBAL REPORTER. �itations, I think would depend on the circumstances of the case ; and, asidefrom the fact that he is named executor in the will, the circum- stances might still charge him as the one or the other. The supreme court of the state in Haynie v. Hall, 5 Humph. 289, says the statute applies in all that class of trusts that become such by matter of evi- dence as where a party takes possession in his own right, and is turned into a trustee by implication of law; or, as the case of Wheeler v. Piper, 3 Jones, Eq. 249, expresses it, where he is trustee "against the agreement" of the parties. But in express or direct trusts created by contract of the parties the statute of limitations does not operate. In such cases the trustee takes possession and holds for another. His possession is the possession of that other, and there can be no adverse holding until the trustee denudes himself of his trust by assuming to hold for himself and notifies the cestui que trust of his treachery. But, says the same learned court in Marr v. Chester, 1 Swan, 416, 418, "when a trust is implied from the contract of the parties, the cestui que trust is as much protected from the operation of the statute of limitations as if the trust had been declared by an express undertaking;" and this furnishes a criterion by which nearly iill the cases can be reconciled. Graham v. Nelson, 5 Humph. 604; Guthrie v. Owen, 10 Yerg. .339; Smart v. Waterhouse, Id. 93; McDon- ald V. McDonald, 8 Yerg. 145; Lafferty v. Turley, 3 Sneed, 157; Moffatt V. Buchanan, 11 Humph. 369 ; Carr v. Lowe, 7 Heisk. 84, 98 ; Loyd V. Currin, 3 Humph. 463; Harris v. Carney, 10 Humph. 349; Rohertson v. Auld, 6 Yerg. 406; Chaney v. Moore, 1 Cold. 48; Ang. Lim. §§ 166, 168, 468. If there were nothing in this case except a crediter receiving of the executor payment of his debt after the bar had attached, I should unhesitatingly hold that the crediter would be protected by the statute, because he would be turned into a trustee by implication upon evidence against the agreement of the parties. �But where he is named as executor in the will, and, although renouneing, takes upon himself the administration, so that as to assets actually received he is liable under the doctrine already men- tioned, he becomes, in my judgment, as much an express trustee as if he had duly qualified. But he was by contract the agent and at- tomey of the executor, and, knowing all the facts and the plaintiff's rights in the premises, he received her notes in that capacity, col- lected her money in that capacity, and became, by necessary impli- cation upon that contract, her trustee and the trustee of the executor, and the case falls directly within the principle so positively stated and so well illustrated in Marr v. Chester, supra. The fact that there ��� �