having the sole right to sue, said: "The legal title was in the trustee of Phoebe Thompson. Both he, and she through him, had a remedy at law to assert and maintain her rights. The possession of John Carmichael under the deed of 1858 was a disseisin of the trustee, and being kept up for twentyone years it ripened into a perfect title. So far as Phoebe was concerned, she was really under no disability; she could look to her trustee, and through him regain her lost possession within the proper time."

In Meeks v. Olpherts (1880) 100 U. S. 564, 25 L. ed. 735, affirming (1874) 3 Sawy. 206, Fed. Cas. No. 9,393, it appeared that the adverse holder acquired possession through a void administrator's sale, and held such possession beyond the time specified by statute (§ 190 of the Probate Act) in which such a sale might be attacked. It was insisted by the heirs that they were not barred by the failure of the administrator to bring suit within the required time, as they were protected by the saving clause in the statute (§ 191), making it inapplicable to minors "or others under any legal disability to sue" at the time when the right of action first accrued. Holding that the right of action was in the administrator, and not in the heirs, and that, therefore, they did not come within the saving clause, the court said: "As the plaintiff in this case claims title as heir and by purchase from other heirs of the decedent, and brings his suit sixteen years after an administrator's sale sanctioned by a probate court, it would seem at first blush that the case came within the provision of the first section. Counsel for plaintiff, however, has argued with much earnestness and force: 1. That no suit could be brought by the heirs, or anyone claiming through them, until the order of distribution was made, because until that time, or until administration was closed, the right of possession was in the administrator. 2. That until then the heirs were under a disability which, by § 191, protected their right of action from the operation of § 190. The first proposition, and, indeed, the argument of the

learned counsel, concedes that, by virtue of the statutes of California, the real estate of a person dying intestate comes to the possession and control of his administrator as personal property does, and that while the administrator can only sell real estate upon an order of the probate court, the possession and control, the reception of the rents and profits, and the right to sue to recover possession of it when held adversely, belong solely to the administrator. . While it must be conceded that no right of action existed in the heirs of Harlan until the order of distribution, the reason of this is that the right of action to recover possession of the lots wrongfully held under the invalid probate sale was in the administrator. He was the representative of the rights of the heirs and of the creditors of the estate and, as such, had the same power to sue for and recover the lot as if he had been the intestate himself. Not only was it his right, but it was his exclusive right and his duty. For any failure to perform this duty he laid himself liable to the heirs, or anyone else injured by that failure. . . . The legal disability mentioned in § 191 manifestly has reference to a well-known class of persons in whom a right to redress exists, but who for special reasons are incapable of acting for themselves; such as infancy, coverture, and the like. Whatever is a disability under the general Statute of Limitations is a disability under this statute. Section 352 of the Code of Civil Procedure of California describes this class, among which are minors, femes covert, insane persons, and persons imprisoned, and it describes them as persons entitled to bring an action. The disability cannot have reference to a person in whom no right of action exists. Such use of the term 'disability' is without support in reason or precedent. The right of action on the title which the plaintiff now asserts was in the administrator, and the statute, therefore, ran against him and against all whose rights he represented. 'In all suits for the benefit of the estate he represents both the creditors and the heirs,' said the supreme court in Beckett v. Sel

over (1857) 7 Cal. 215, 68 Am. Dec. 237. Whatever doubt may have existed at one time on the subject, there remains none at the present day that, whenever the right of action in the trustees is barred by the Statute of Limitations, the right of cestui que trust thus represented is also barred."

And in Benbow v. Levi (1897) 50 S. C. 120, 27 S. E. 655, the court, holding that the disability of coverture under which the cestui que trust was laboring could not protect her, said: "We cannot see that the fact that Mrs. Ann R. Benbow was under the disability of marriage affects this question. Legal title was never in her, but it was in her husband. She had the right to use the lands during life and widowhood. She had the right, even as a married woman, to apply to the court of equity from 1st January, 1869, to 1st March, 1895, when her husband died, to protect her right to the use of said lands. It was to recover this power for her that P. G. Benbow brought his two actions against H. B. Richardson. She is bound by his failure."

In Nelson v. Ratliff (1895) 72 Miss. 656, 18 So. 487, wherein it appeared that the adverse holder acquired possession through purchase at a void foreclosure sale, it was held that the trustee, by his neglect to bring an action for the recovery of the land within the proper time, was barred, and, under the rule that when the trustee holding the legal title is barred the cestui que trust, though an infant, is also barred, which was embodied in a statute enacted in 1880 (Miss. Code 1880, § 2694), the infant grandson of the creator of the trust could not maintain an action for the recovery of his interest in the land. But see, to the contrary, Bacon v. Gray (1851) 23 Miss. 140, which, however, was decided prior to the enactment of the statute, at which time the contrary rule seems to have prevailed in Mississippi.

However, it is only in cases where the full legal title is held by the trustee that the holder of the equitable title who is under disability is barred by the bar against the trustee. Col

lins v. McCarty (1887) 68 Tex. 150, 2 Am. St. Rep. 475, 3 S. W. 730, wherein the rule was stated as follows: "To debar the owner of the equitable title from a right of action, the legal title must be fully barred. This cannot be effected except through the laches of the one in whom that title is fully vested. The neglect of an administrator or guardian to bring suit in proper time cannot, therefore, prejudice the title of the ward or heir who is under disability, and against whom, therefore, the Statute of Limitations cannot run. But when the full legal title is vested in a trustee, to be held for the sole use and benefit of another, and subject to no other consideration except that it shall be conveyed to such other person on demand, when suit by the grantee is barred, the full legal title is barred, and, according to wellestablished principles, the legal estate being barred, the equitable estate is also. Whether there may not be sound reasons for an opposite doctrine we shall not pause to consider. The principle seems thoroughly embedded in the jurisprudence of this country; and, being supported by reasoning which is persuasive of its correctness, we feel disposed to give it our sanction and keep within the line of the authorities. But it cannot be extended beyond the case made, and those to which the principles announced are precisely applicable. It cannot affect the

rights of a person laboring under disabilities when the cause of action arose, if at that time the legal title existed in him, though the control of the property was intrusted to another nor to a case when the cause of action arose from any breach of trust on the part of the trustee other than the mere failure to sue within the period of limitation."

And in Wiess v. Goodhue (1904) 98 Tex. 274, 83 S. W. 178, it was held that where, on the death of one spouse, the community property passed by will, with one half to the surviving spouse and one half to the children, the surviving spouse being made executor and given control of the entire estate, a trespasser going into possession of the property, and holding the same ad

versely for a period of time sufficient to acquire title, could defeat an action by the executor in so far as his half of property was concerned; but as to the half willed to the children, the legal title was in them, and not in the executor as trustee, and so, if under disability, the statute would not run against them.

In each of the following cases a cestui que trust, though laboring under the disability of infancy, was held to be barred by adverse possession against his trustee:

England. Earl V. Huntingdon (1719) 3 P. Wms. 310, 24 Eng. Reprint, 1078; Wych v. East India Co. (1734) 3 P. Wms. 309, 24 Eng. Reprint, 1078; Pentland v. Stokes (1814) 2 Ball & B. 75.

California.

McLeran v. Benton (1887) 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac. 879; Patchett v. Pacific Coast R. Co. (1893) 100 Cal. 505, 35 Pac. 73. Georgia. Pendergrast v. Foley (1850) 8 Ga. 1; Worthy v. Johnson (1851) 10 Ga. 358, 54 Am. Dec. 393; Wingfield v. Virgin (1874) 51 Ga. 139; Brady v. Walters (1875) 55 Ga. 25; Knorr v. Raymond (1884) 73 Ga. 749; Crawley v. Richardson (1886) 78 Ga. 213; Salter v. Salter (1887) 80 Ga. 178, 12 Am. St. Rep. 249, 4 S. E. 391; McCrary v. Clements (1895) 95 Ga. 778, 22 S. E. 675.

Illinois.-Waterman Hall v. Waterman (1906) 220 Ill. 569, 4 L.R.A. (N.S.) 776, 77 N. E. 142.

Maryland. Weaver (1880) 52 Md. 708.

Mississippi. Nelson

V.

Leiman

V. Ratcliff (1895) 72 Miss. 656, 18 So. 487.

Missouri. Ewing v. Shannahan (1892) 113 Mo. 188, 20 S. W. 1065; Walton v. Ketchum (1898) 147 Mo. 209, 48 S. W. 924.

North Carolina.-Blake v. Allman (1860) 58 N. C. (5 Jones, Eq.) 407; Kirkman v. Holland (1905) 139 N. C. 185, 51 S. E. 856; Wellborn v. Finley (1859) 52 N. C. (7 Jones, L.) 228.

(1847) 8 Humph. 563, 47 Am. Dec. 632; Goss v. Singleton (1858) 2 Head, 67; Wooldridge v. Planters' Bank (1853) 1 Sneed, 297.

Utah. Jenkins v. Jensen (1901) 24 Utah, 108, 91 Am. St. Rep. 783, 66 Pac. 773.

But it has been held that an infant cestui que trust was not barred from bringing suit to recover the trust property, where it appeared that the adverse possessor acquired the property through a bill of sale from the trustee, the court basing its opinion on the theory that the trustee was estopped by his bill of sale from bringing suit to recover the property, and consequently, there being no right of action in the trustee, the statute did not run. Parker v. Hall (1859) 2 Head (Tenn.) 641.

But see Williams v. Otey (1847) 8 Humph. (Tenn.) 563, 47 Am. Dec. 632, wherein it was held that, even though a trustee exceeded his authority in selling the trust property, the purchaser could acquire a perfect title by holding the property adversely for the time limited, and that the trustee, by his failure to sue until the Statute of Limitations had run, being barred, the cestui que trust was also barred, though laboring under the disability of infancy.

And in Hunter v. Hunter (1902) 63 S. C. 78, 90 Am. St. Rep. 663, 41 S. E. 33, the court, without any discussion of the point, held that a purchaser of land from an executrix holding land in trust could not acquire title by adverse possession against the cestuis que trust where some of them were minors.

And in Merriam v. Hassam (1867) 14 Allen (Mass.) 516, 92 Am. Dec. 795, although it appeared that the cestui que trust was under no disability, the court, in stating the general rule, included as one of the prerequisites for its operation the want of disability on the part of the cestui que trust. The rule here was set out as follows: "Where the trustee sells the trust estate to a purchaser for value, with warranty, and without any intimation in the deed of conveyance of

a subsisting trust, and the vendee enters and occupies the estate, doing no act which recognizes in any manner the existence of the trust, and there is no fraud or concealment, and the cestui que trust is under no disability, the possession must be regarded as adverse, both to the trustee and the cestui que trust; and the time which would bar the legal right is equally effectual to bar the equitable right." Likewise, in Allen v. Sayer (1699) 2 Vern. 368, 23 Eng. Reprint, 832, wherein it appeared that a stranger had entered on an infant's trust estate and levied a fine, and the trustee had failed to bring an action of ejectment within the time limited, it was held that the fine and nonclaim did not run against the infant during his minority, and that he was not barred by the laches of his trustee.

And in the following cases it was held that the disability of coverture would not operate to save the cestuis que trust from the bar of the statute, where their trustee was barred: Chase v. Cartwright (1890) 53 Ark. 358, 22 Am. St. Rep. 207, 14 S. W. 90; Crook v. Glenn (1869) 30 Md. 55; Herndon v. Pratt (1862) 59 N. C. (6 Jones, Eq.) 327; Thompson v. Carmichael (1888) 122 Pa. 478, 15 Atl. 867. And in Smilie v. Biffle (1845) 2 Pa. St. 52, 44 Am. Dec. 156; Benbow v. Levi (1897) 50 S. C. 120, 27 S. E. 655; Collins v. McCarty (1887) 68 Tex. 150, 2 Am. St. Rep. 475, 3 S. W. 730; Appel v. Childress (1909) 53 Tex. Civ. App. 607, 116 S. W. 129.

In Molton v. Henderson (1878) 62 Ala. 426, wherein it appeared that the purchaser of certain land held in trust for the support of an insane person, under a judicial sale afterward declared void, had occupied the land so purchased adversely for the period of time sufficient to raise the statutory bar, it was held that both the trustee and cestui que trust were barred from disputing the title, and the fact that the cestui que trust was laboring under the disability of insanity did not stop the running of the statute. On this point the court said: "It would be a strange anomaly, if the statute would clothe the adverse possessor

with the legal estate, which he acquires and holds and asserts in hostility to the equitable estate, and yet subject the legal estate to be defeated by that equitable estate. As to equitable estates, the statute would be shorn of all strength, and they would remain a cloud on the alienation of the legal estate, narrowing the sphere of the operation of the Statute of Limitations, and subjecting the possessor to the perils of injury, from the sense of security a long and open possession naturally begets, and which the law intends to inspire and encourage. On principle and authority, therefore, we must say the fact the appellee was non compos mentis, and yet so remains, cannot prevent the operation of the general rule to which we have referred. If his trustees have been negligent in asserting the legal title, the law affords him remedies against them, which are without the operation of the statute. These remedies, if he has been wronged, he must pursue." IV. Cestui que trust also remainderman.

Where a remainder is held in trust, an adverse possession against the trustee will also be effective as against cestuis que trust. Meeks v. Olpherts (1880) 100 U. S. 564, 25 L. ed. 735; Gindrat v. Western R. Co. (1892) 96 Ala. 162, 19 L.R.A. 839, 11 So. 372. And see the reported case (CRUSE v. KIDD, ante, 36); Chase v. Cartright (1890) 53 Ark. 358, 22 Am. St. Rep. 207, 14 S. W. 90; Dean v. Central Cotton Press Co. (1880) 64 Ga. 670; Ford v. Cook (1884) 73 Ga. 215; Waterman Hall v. Waterman (1906) 220 Ill. 569, 4 L.R.A. (N.S.) 776, 77 N. E. 142; Edwards v. Woolfolk (1856) 17 B. Mon. (Ky.) 376; King v. Rhew (1891) 108 N. C. 696, 23 Am. St. Rep. 76, 13 S. E. 174; Cameron v. Hicks (1906) 141 N. C. 21, 7 L.R.A. (N.S.) 407, 53 S. E. 728; Waring v. Cheraw & D. R. Co. (1881) 16 S. C. 416; Watkins v. Specht (1870) 7 Coldw. (Tenn.) 585.

In Watkins v. Specht (Tenn.) supra, the rule was stated as follows: "A person entitled to a legal estate in remainder is not barred by an adverse possession, accruing and continuing only during the particular estate; for his right to the possession, and his

right of action, do not accrue until the determination of the particular estate. But, in the case where the entire legal estate in fee is vested in a trustee, the legal right of possession and right of action is in the trustee, and not in the cestui que trust, and the action to recover the possession must be in the name of the trustee: . . . There is no right to sue at law for the recovery of the possession, either in the tenant of the equitable life estate, or the person entitled to the equitable remainder. Both are represented by the trustee of the legal estate, and both are barred by such adverse possession as will bar the legal estate of the trustee."

And in Edwards v. Woolfolk (1856) 17 B. Mon. (Ky.) 376, supra, wherein it appeared that the adverse holder entered into possession under a deed from the husband of the life tenant, the court, holding the remaindermen, whose interests were also covered by the trust, to be barred by the adverse possession, said: "But is the equitable right of those who are entitled in remainder, as well as that of the tenant for life, defeated in consequence of the right of action of the trustee being barred by the Statute of Limitations? The trustee holds the legal title in fee as well for the benefit of the particular estate as the estate in remainder. When his legal right is barred, both estates are thereby clearly affected, and it is difficult to perceive any ground upon which the estate in remainder can be withdrawn from the operation of the statute. A right of action exists in the trustee for the benefit of both estates; and in this respect there is a clear distinction between a case of this kind, and that where the legal title to the estate is in the tenant for life and also in the remainderman. In the latter case, the cause of action does not accrue until the estate for life is determined. But in the former, it exists, not only in the trustee, but also in the holder of the equitable title in remainder, who may bring an action in equity to re-establish his right from the first moment of the breach of trust, or as soon as the trust property has come into the

hands of a stranger, who holds it in opposition to the trust."

And in Chase v. Cartright (1890) 53 Ark. 358, 22 Am. St. Rep. 207, 14 S. W. 90, supra, it was said: "The executors had no beneficial interests in the property, but, holding the legal title to the fee in trust, they were trustees for all persons who had equitable interests carved out of the fee, whether in possession or in remainder. If the conveyance by Cannavan was void, and the grantees entered under it, a right then accrued to the executors to dispossess them, and, being trustees of an express trust, they could have sued in their own names."

In Gindrat v. Western R. Co. (1892) 96 Ala. 162, 19 L.R.A. 839 11 So. 372, supra, wherein it appeared that a tenant for life, under a deed creating a trust estate for the life tenant with remainder to children then unborn, had improperly conveyed the trust estate, the court held that, the remainder being contingent and therefore subject to the operation of the trust, an adverse possession against the trustee was effective against the contingent remaindermen. On this point it was said: "In such case, the trustee would have active duties to perform in the protection of the contingent remainder, and would hold the legal title in trust for the remaindermen, and to become vested in them as they come into being. The trustee is thus the representative of the tenants in remainder. There is a privity between them and him. In the protection of their contingent interest he may interpose during the life estate, if need be, and to any extent necessary to that end. He has a right of entry in case of any wrongful alienation by the tenant for life, or whenever his estate for life determines in his lifetime by any other means than alienation. And being thus in privity with the remaindermen, and representing them for the preservation of the remainder, until the happening of the condition upon which it is to vest, his laches is the laches of the tenants in remainder; acquiescence by him binds them, and adverse possession against him bars