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Governor, for use of, v. Ext'rs of Hooker-Argument of Counsel.

property by the cutting and carrying away of their trees and timber, no other injury or damages being claimed by the declaration or attempted to be proved. The damages found by the jury are excessive and not warranted by the law of the case.

The judgment is reversed and a new trial awarded.

WM. D. BLOXHAM, GOVERNOR, FOR THE USE OF CUTHBERT BLOUNT ET AL., APPELLANTS, Vs. H. L. CRANE AND JAMES N. HOOKER, EXECUTORS OF W. B. HOOKER, APPELLEES. I. An executor in taking the office accepts not only all the trusts imposed by the will under which he acts, but also all the trusts in respect to the assets with which his immediate testator was charged. And an executor of a guardian is liable to a ward to account and pay over to him money due to the ward on arriving at majority which was in the hands of the guardian.

2. Such money due to the ward is not general assets of the deceased guardian for the payment of debts and for distribution.

3. An executor of a guardian in possession of the estate is, like the guardian, a trustee of funds of the ward which was in the custody of the guardian at the time of his death, and in a suit in behalf of the ward against the executor to recover the funds so held in trust, neither the statute of limitations nor the statute of non-claim can be pleaded in bar.

4. A demurrer by a defendant to a bad replication to his plea does not entitle the defendant to judgment if the plea is bad.

Appeal from the Circuit Court for Hillsborough county.
This is an action of debt on a guardian's bond.
The facts are stated in the opinion.

S. M. Ellis and James T. Magbee for Appellants.

To the declaration of the plaintiffs the defendants filed nine pleas; the plaintiffs demurred to the first six pleas and

Governor, for use of, v. Ext'rs of Hooker-Argument of Counsel.

the additional plea of the defendants, joined issue on the 7th and 8th pleas, and also replied to the 1st, 2d, 3d, 4th and additional pleas of the defendants; to this replication defendants demurred.

The Circuit Court sustained the plaintiffs' demurrers to the 1st, 2d, 5th and 6th pleas, and also sustained the defendants' demurrers to the plaintiffs' replication. The court having overruled plaintiffs' demurrers to the 3d, 4th and additional pleas the plaintiffs excepted, and having failed to join issue or further reply to said pleas final judgment of dismissal was rendered by the court, and from that judgment plaintiffs take this appeal.

Plaintiffs contend that the court erred in overruling plaintiffs' demurrers to the 3d, 4th and additional pleas of defendants.

2d. That the court erred in sustaining defendants' demurrers to the plaintiffs' replication to 3d, 4th and additional pleas of defendants.

The third plea of the defendants alleges that "this action was not begun within one year from the issuing of letters testamentary to these defendants." This plea is founded on Sec. 15, Chap. 1869, Laws of Florida, 1872. As before stated the court overruled plaintiffs' demurrer to this plea and struck out plaintiffs' replication to same, the replication alleging the infancy of Cuthbert Parker for more than one year after issuing letters testamentary, the honorable Circuit Judge thereby adopting the view of the defendants' counsel that infancy was no bar to the running of the statute. As counsel for plaintiffs below (appellants here), we contend that the statute of 1872 does not apply to this case; and,

2d, If said statute of 1872 (Sec. 15, Chap. 1869.) does apply to this case the plea of infancy of the cestui que trust is sufficient to prevent the statute from interposing a bar

Governor, for use of, v. Ext'rs of Hooker-Argument of Counsel.

to the plaintiffs' recovery in this cause. The defendants' testator, Wm. B. Hooker, died in the early part of the year 1871, his will was offered for and admitted to probate in July, 1871, the statute of limitations of 1872 was not enacted for nearly one year after, being signed by the Governor February 27th, 1872. The counsel for defendants (appellees) contends that this law relates back, in fact, becomes an ex-post facto law, and that the plaintiff must be barred of justice and the right to recover her patrimony by this statute, which, by their own admission, did not become a law for almost one year after her cause of action accrued, and the Circuit Court adopted this view in overruling plaintiffs' demurrer to this plea. With all due deference to the honorable Circuit Judge, this view seems to counsel for appellants most astonishing and without any law or authority to warrant it, either in the statute itself or the decision of this court.

In the case of Sanderson vs. Sanderson, 17 Fla., p. 820, this court held that such a claim as this was not covered by the 19th section of said act of February 27th, 1872; but taking the appellees' view of this cause to be correct, viz: that this cause of action accrued on the death of Wm. B. Hooker or on the appointment of his executors, then the statute of limitations in force at that time would be the rule of law to govern the case; but the counsel for appellees contend that there was no statute of limitations in force in this State from 1861 till the passage of the law of 1872, and that therefore the law of 1872 must govern.

We think this view of the law incorrect, because there is no principle in the decisions of this court, no rule more firmly ingrafted into the jurisprudence of this State than the rule that the common law governs in the absence of a statute. This being the rule, should not the common law period of limitation and the common law exceptions on

Governor, for use of, v. Ext'rs of Hooker-Argument of Counsel.

account of disabilities of infancy and coverture govern? Angel on Limitations, 6 Ed., §16.

That the statute does not relate back we refer the court to the case of Sanderson vs. Sanderson above cited and to Angel on Limitation, p. 14, Sec. 22.

At what time does the right, in her own name, of a ward to sue her guardian for failure to perform his duties and fulfill his trust accrue?

If Wm. B. Hooker had lived until Cuthbert Parker, now Cuthbert Blount, had attained to the full and legal of 21 years, then she could have called him to account in a court of law, and not till then. Did his death before that time change the law in regard to her disability? The answer must be certainly not. The trust of this guardianship devolved upon the executors of Wm. B. Hooker the moment they accepted that trust. They stood in precisely the same place Hooker did before his death in regard to this cestui que trust. She was an infant at that time, and in her own name could no more sue these executors than she could have sued her original guardian prior to attaining her majority.

These very defendants were the persons whose duty it was to guard and protect her rights and interests; they were occupying a double capacity. They, as the executors of Wm. B. Hooker, were indebted to themselves as guardians of this cestui que trust in the sum of $1,471. Was the duty they owed the estate of Wm. B. Hooker superior to the duty and obligations they were under as guardians of Cuthbert Parker? If they so regarded it, and the interests of the two trusts were in conflict, could they act for both and then years after plead their own wrong and neglect to avoid the recovery of their ward of her just rights? Would not justice, humanity and the dictates of common honesty have caused them, when they found the two trusts in con

Governor, for use of, v. Ext'rs of Hooker-Argument of Counsel.

flict, to have resigned one or the other and caused some worthy and competent person to be appointed guardian of this orphan child, to whom they were under legal obligations as well as the obligations arising from consanguinity, as they are her uncles; or, on the other hand, to have acted in good faith as her sworn representatives and have guarded her interests with the care and fidelity she had a right to expect from them, and have resigned this trust as executors of the will of Wm. B. Hooker, and caused that trust to devolve on some other person?

Appellants contend that the possession of the trustee is the possession of the cestui que trust, and that the statute does not run against the cestui que trust in favor of the trustee. See 26 Texas, p. 537; Johnson vs. Smith, 27 Missouri, 591; Taylor vs. Blair, 14 Missouri, 437.

Appellants also contend that the staute has no application to express trusts like this when there is no disclaimer of the trust, and that appellees, to avail themselves of the statute, should first have disavowed the existence of the trust. (Seymore vs. Frier, 9 America Law Register, p. 199.) The 4th and additional pleas of the defendants are the same in effect, and we propose to refer to the point raised in them briefly.

claim was not presented to years from the date of the The statute says all claims. years from the date of the

Defendants allege that this them as executors within two issuing of letters testamentary. must be presented within two issuing of letters testamentary. The statute says all claims. must be presented within two years after issuing letters testamentary, but the statute is silent as to how or by whom such claim shall be presented, and the legal presumption. is that the party to whom the claim is due or in case of her disability from any cause, then it should be presented by the legal representative of the party. The question then

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