Page:Hill v. State.pdf/6

23 Ark.]

1861.]

applied and confirmed in subsequent cases, and may be regarded as settled. See Bennett et al. vs. Dawson, 18 Ark. 336; Oswalt vs. Moore, 18 Ark. 225; State Bank vs. Walker ad., 14 Ark. 236; Bennett et al. vs. Dawson et al., 15 Ark. 413; Biscoe et al. vs. Madden as ad., 17 Ark. 533.

It is insisted for the State that the statute of non-claim does not apply in this case, first, because Hill was a trustee, and that the trust was direct and continuing; and second, that the statute of non-claim, like the general statute of limitations, does not run against the State.

In regard to the first objection, it may be remakred that it is true that Hill was a direct trustee, under the deed of assignment, and that it was, what is denominated in the books, a continuing trust. But upon his death, he ceased to be a trustee, and, as to him, the trust no longer continued (Halliburton ad. vs. Fletcher ad. et al., 22 Ark. 653.) His indebtedness to the trust became a demand against his estate, to be authenticated, allowed, classed and paid out of the assets which came into the hands of his executrix as other demands, unless the State, having an interest in the trust, was privileged to file a bill at any time to enforce the payment of the demand, by the executrix, regardless of the provisions of the administration statute prescribing the mode of authenticating and limiting the time for presenting claims against executors and administrators; and this brings us to the consideration of the second and more difficult objection.

Does the statute of non-claim apply to the State?

It may be remarked, that the demand against Hill's estate, on account of his indebtedness to the trust, was not one directly due to the State, or payable into her treasury. She is, however, deeply interested in the effects appertaining to the trust. To enable the Real Estate Bank, a private corporation, to raise a banking capital, the State issued her bonds to the bank, on the faith of mortgages made by the stockholders, upon lands, to secure the payment of the bonds, etc.; the bonds were endorsed by the bank, put into the market and sold. Afterwards, 23 Ark.—39