#### THOMAS SAUNDERS, Admr. of FRANCIS SPEIGHT, v. REDDICK GATLIN, Admr. of JAMES GATLIN.

"Where two decedents were joint owners; of slaves, and the administrator of one having obtained possession, distributed them improperly, he is liable to account for their value to the next of kin of his intestate, hut not to those of the other.

Joseph Speight died in the year 1792, having duly ■made his last will, and thereby bequeathed to his wife for the term of her life, five negroes, and other personal property ; and after various other bequests, by the last clause in his will, he declared it to be his desire, that all the remainder of his estate, of every nature and kind whatsoever, should be sold on a credit of nine months, and the money *87arising therefrom, to go to pay his just debts, and funeral charges ; and if there should be any remainder, for it to be equally divided between his two sons, Francis and Henry Speight, and their heirs forever. The slaves, and other personal property bequeathed, were delivered to the widow by the executors of the testator, his .two sons and residuary legatees above named, and were enjoyed by her until her death, which took place in the latter part of the year 1818, or the beginning of the year 1819. Francis and Henry Speight both died, several years after the testator, but before -the widow. Upon her death-, James Gatlin, who was the administrator of Henry Speight, became also her administrator, and administrator de Vonis non, with the will annexed of the testator, Joseph Speight. Having taken the advice of counsel, and being informed that the remainder in the negroes, and other pérsonal property bequeathed to the widow for life, was not included in the residuary clause of Joseph Speight’s will, and that, as to this remainder, Joseph died intestate, he applied to the County Court, and obtained an order appointing commissioners for the division of this property, and on the 16th of August, 1819, the division was made accordingly. One fourth part was allotted to, and received by the next of kin of Francis Speight, to whose estate there was no administrator ; another fourth was delivered over to the next of kin of Henry Speight, of whose estate the said Gatlin was then the representative; and the other two-fourths allotted to the representatives and next of kin of two deceased daughters of Joseph Speight, Susanna Darden and Catharine Dunn, who had survived their father. The next of kin of Henry, who were present at this division, declared to Gatlin their dissatisfaction thereat, and that they would hold him accountable for what they alleged was yet due to them. One only of the next of kin of Francis Speight was present at the division; he was dissatisfied, but did not communicate that dissatisfaction to Gatlin, nor did it appear that the others of the next of kin of Francis, raised any objection to what had occurred, when they received their part of the share allotted to Francis Speight’s estate. In April, 1822, a suit by petition was brought by the next *88of kin of Henry Speight, deceased, against Gatlin, to which Henry Speight, the younger, who, in November, 1822, administered on the estate of Francis, was afterwards made a party defendant, which suit was discontinued in 1823, without any determination on its merits. James Gatlin died shortly afterwards, and in November, 1823, Reddick Gatlin and Charles Sumner, administered upon his estate. John Speight, having taken out letters of administration de bonis non, on the estate of Henry Speight, the elder, (one of the residuary legatees of Joseph, the testator,) together with William K. and Joseph Speight, who with the said John, were next of kin to Henry, in 1824, filed their bill against the administrators of James Gatlin, praying an account of the personal property of the said Henry, which came to the hands of said James, as his administrator, on the death of the widow of Joseph, and for a delivery over of such part thereof, as had not yet been received by the distributees of the said Henry. To this bill, Henry, the administrator of Francis, was made a party defendant, but no decree was asked against him, nor did he make any answer to the bill. Upon the death of Henry, in 1828, the present plaintiff was appointed administrator de bonis non, of Francis Speight, and the death of Henry being suggested, the present plaintiff was made a party defendant to that suit, by scire facias. Charles Sumner died pending the said bill, and his death having been suggested, the bill was prosecuted against Reddick Gatlin, the surviving administrator of James Gatlin, and in June, 1831, the plaintiffs in that suit, had a decree for the value of the fourth part of the negroes and personal property, so erroneously disposed of, and the interest thereon.

*87June, 1835.

*88On the 30th November, 1834, Thomas Saunders, administrator of Francis Speight, filed this bill against Red-dick Gatlin, the surviving administrator of James Gatlin, and therein claimed that the said James was well entitled upon the death of the widow of Joseph Speight, to the possession of the slaves and personal property bequeathed to her for life, as the administrator of Henry Speight, one of the two residuary legatees, the other residuary legatee, Francis, being dead, and having then no personal representative : *89that he held the possession thereof as trustee in respect to one moiety for the next of kin of Henry his intestate, and as to the other moiety, for such administrator as might be appointed on the estate of t rancis,y>r for the next of kin of the said Francis : that in delivering over to the representatives of Susanna Darden and Catherine Dunn, a moiety of that property, he violated .at once the trust under which he held the same for the next of kin of Henry, and that under which he held for the administrator to be appointed, or for the next of kin of Francis : that there being no creditors of Francis, and the plaintiff acting in behalf of the next of kin of the said Francis, he; the plaintiff, admitted, as part satisfaction of his demand against the said James, the receipt by the said next of,kin, of a half of the share' to which the estate of the said Francis was entitled, in the property so held and erroneously divided by the said James: that Henry, the former administrator of Francis, and the present plaintiff, having been defendants to the suit of John Speight and others, against the administrators of James Gatlin, and being advised that whenever that suit was decided, if the division should be pronounced erroneous, a decree would be rendered also in favour of the representatives of Francis Spright; neither the said former administrators nor the present plaintiff had been guilty of laches, in omitting to bring a suit, as plaintiff, until after the determination of the former suit: that the defendant, the administrator of James Gatlin, who had received assets of his intestate, was bound to pay over to the plaintiff, the unsatisfied part of the legacy of the plaintiff’s intestate: that the plaintiff was not bound to seek satisfaction thereof from the representatives of Susanna Darden and Catharine Dunn, more.especially as they had gone to parts unknown, and, as he believed, had .become insolvent, and prayed an account and decree accordingly against the defendant.

Controverting the right of the plaintiff to any relief, the defendant specially insisted by his answer, that neither the former administrator of Henry Speight, nor the present plaintiff, ever advanced any claim for, or on account of the matters set forth in the bill, until the institution of this *90suit: that each of them had refused to be a party plaintiff in the former suit, and when compelled to come in as party defendant, had then preferred no claim: that on the expi- . . . . ration of two years atter the qualification of the administrators of James Gatlin, on the estate of their intestate, they had settled the estate with, and paid over the same to the next of kin of their intestate, and they prayed specially, the benefit of the ordinary act of limitations, (Rev. ch. 2,) also of the provision in the act of 1715, (Rev. ch. 10, s. 7,) barring all suits of creditors against the estates of deceased persons, if not preferred within seven years after their death, and also of the act of 1789, (Rev. ch. 308,) entitled an act concerning proving of wfills, and granting letters of administration, and to prevent fraud in the management of intestate’s estates.

Badger and Winston, for the plaintiffs.

Iredell for the defendant, contended,

1st. That the legacy to the widow of Joseph Speight, having been assented to by his executors, the defendant’s intestate, as administrator of Henry Gatlin, was tenant in common writh the administrator of Francis, and having disposed of the whole property, was liable at law to the latter.

2d. That if the bill could be sustained, then James Gat-lin was at most merely a constructive trustee for the plaintiff, and in that, even the present suit was barred by the statute of limitation, because the statute begins to run from the time when the trustee by his acts, declares that he held no longer in trust, and he contended that the division was an unequivocal act, amounting to such a declaration. Kave v. Bloodgood, 7 John. Ch. Rep. 40, 122, 123. Ivey v. Rogers, 1 Dev. Eq. Cas. 58.

3d. That the pendency of the former suit, and the fact that the plaintiff was a defendant in it, do not prevent the operation of the statute, to effect which there must be a demand by legal process. Hodle v. Healy, 1 Yes. & Bea. 536. Lake v. Hayes, 1 Atk. 282. Anon. 2 Id. 1.

Gaston, Judge,

after stating the case as above set forth, proceeded. — Upon the argument it was urged by the coun*91sel for the plaintiff, that his right to recover, unless prevented by some of the bars set up because of lapse of time, was established by the decision made in the suit referred to in the pleading, (vide Speight v. Gatlin, 2 Dev. Eq. Cas. 5.) That decision is regarded by us as conclusively settling the construction of Joseph Speight’s will. He did not die intestate, with respect to the remainder or residuary interest in the property bequeathed to his widow for life, and that property upon the death of the widow was divisible between the representatives of Francis and Henry Speight, the two residuary legatees, only, and not between them and also the representatives of their deceased sisters Susanna Darden and Catharine Dunn.

As James Gatlin was the administrator of Henry Speight-, and stood in the express and direct relation of trustee to the next of kin of Henry Speight, they had a right to call upon him and his representatives for a distribution of the funds of Henry Speight, which had come, or ought to have come into his hands, as their trustee, more especially as, at the very time when he parted with a portion of these funds improperly, they had remonstrated against the act which he was committing, and cautioned him against its consequences. But the defendant’s intestate was not administrator of Francis Speight, and therefore did not stand in the same relation to his next of kin which he occupied with respect to the next of kin of Henry Speight. On what ground, then, is it, that he became personally responsible to the administrator de bonis non of Francis Speight for the share in this property which had vested in the said Francis ? The bill claims, that being tenant in common with the administrator thereafter to be appointed of Francis Speight, or with the next of kin of the said Francis, and having the whole of the common fund in his hands, or at all events in his power, he was trustee for such administrator, or next of kin, as to his or their share of it, and responsible as for a violation of trust in having neglected to preserve it. We do not assent to these positions. The possession of one tenant in common, as such, is, so long as it continues, the possession of all the tenants in common, because tenants in common, although *92they have a distinct interest, have but one possession. The possession of a trustee is said to be the possession of the cestu% clue trust, because it is the duty of the trustee to take care of the thing of which he is the legal owner, for the benefit of his cestui que trust, and the possession, while it remains with the legal owner, will not be presumed inconsistent either with his obligations, or with the rights of his cestui que trusts. But a tenant in common, as such, is not a trustee for his companion. He is under no obligation to ^’s companion to take or to keep possession of the undivided property; he is not charged with the duty of protecting ^ie common property ; while he holds it he is liable for the profits derived from his companion’s share, or for an actual injury done to it; when he parts with the undivided property to another, as there is an end to his possession, there is an end, also, with him, to the liabilities arising from that possession. Constructive or implied trusts between tenants in common may be raised by Courts of . J J Equity, because of the relation caused by a community Possession; just as similar trusts are raised between persons whom any other cause brings together, into a re'ati°n inferring confidence. If one of several tenants in common should buy in an outstanding title effecting the common property, equity will declare him to have purchased for the benefit of the others. So if one of several co-sureties procures an indemnity from the principal, it shall enure to the protection of all. And so, if a particular tenant renews a [renewable lease in his own name, the renewal shall operate for the benefit of those in remainder.^ And so if a fraud in any matter of contract be committed by one party upon another, equity considers him who has obtained the unfair advantage, as bound in conscience, not to avail himself of it, and to that extent treats him as a trustee for the other. If any improper advantage had been taken by Gatlin, by reason of his possession of the common fund, or if the abandonment of it in whole or part had been made with a fraudulent intent, there might be room for then converting him into a trustee, as to those injured or attempted to be injured by his unfair practices. But he was not the legal owner, curator, protector, *93of the share of the plaintiff, or of those whom the plaintiff represents, and is not, therefore, responsible to the plaintiff as his trustee. The division made of the common fund was erroneous, and it was just as competent for the administrator of Francis, as for the administrator of Henry Speight, to take the proper steps to correct the error. Regularly, they should have acted in concurrence with each other. Neither has taken any measures for that purpose. The proceeding here is not to correct the mistake, not to have a new division of the fund, but to throw the whole loss upon one of the tenants in common, for the relief of the other. It is possible, that the property may now be removed to parts unknown, or that the possessors of it may be insolvent, or that it may be too late for those injured to obtain any redress; and if so, where there is no fraud, and no breach of any peculiar obligation imposed upon one of the parties, equality is equity.

*92Atenantin possession thereby1 be come a hisfellow

But con-atractiva trusts may arise be-by'reason11 of the con-ateTby016" their rek-tlon'

*93Anunqua- ^ an exe- ^ life, vests *?tle of mainder, ^hen there are no paid^nor6 ^ny trusts

Although the bill places the claim to relief upon the ground which has been stated and considered, we have deemed it incumbent on us to examine whether the facts charged and ascertained, presented any other ground upon which the plaintiff is entitled to relief. The property had been bequeathed for life to the widow of Joseph Speight, and the ulterior interest therein passed under the residuary clause to the two sons, the executors. Had the will been silent', the law constituted the residuum of the testator’s estate the primary fund for paying 'debts and funeral charges, and this ulterior interest was, a part of that residue. The testator, however, expressly charged the residue of his estate with this burthen, and directed it to be sold for that purpose. It was competent, then, for the executors, had other persons been the residuary legatees, when assenting to the specific bequest for life, to have restricted their assent to that only. If there were debts remaining undischarged, which rendered the aid of this ulterior interest necessary for their satisfaction, I am not convinced, that an unexplained assent to the bequest for life, would have been in such a case construed into an assent also to the ulterior disposition. But-where no debts appear; where there is no purpose for which the execu*94tors could rightfully ask for the possession of the property after the death of the legatee for life, such an assent would, I think, pass the estate in the property wholly away from the executors, and vest it in those in remainder, as well as in the tenant for life. The case is quite as strong, or perhaps stronger, when the executors are themselves the ulterior legatees. The property being in equity theirs, charged only with the obligation of paying the debts of their testator, it will readily be presumed, when no debts appear, that they assent to the bequest, and make it legally theirs. We think, therefore, the plaintiff was right when he charged by his bill, that the defendant’s intestate took possession, not as administrator de bonis non of Joseph Speight, the original testator, but as the administrator of Henry Speight, one of the legatees, to whom it had been bequeathed, subject to the life estate of the widow. The case does not come, we think, within the principles of Dunwoodie v. Carrington, 2 Law Rep. 469, where the executor has a trust to perform out of the thing bequeathed, and after the death of the first taker. The payment of the funeral charges and debts of the testator, was not to await here until after the death of the widow, and then to be made out of the things bequeathed; but the ulterior interest in these things, such as it was at the testator’s death, was chargeable with these expenses and debts, and they were payable immediately. We are obliged to infer from all the facts charged, that this ulterior interest was not needed for any such purpose, and that when the delivery was made to the widow, it operated to vest the complete legal interest in the things bequeathed. The case comes within the principles of Jones v. Zollicoffer, N. C. Term Reps. 214; Ingram v. Terry, 2 Hawks, 122; Alston v. Foster, 1 Dev. Eq. Cases, 337, and Burnett v. Roberts, 4 Dev. Rep. 87. We regard it as settled in this it, • country, that when slaves are given, or an interest m s^aves bequeathed as a residue, or part of a residue, a sale is not to be had, unless it be necessary for the payment of ^e^ts> or f°r accomplishing the purposes of the testator. Smith and Wife v. Barham, 2 Dev. Eq. Cases, 420. If these views be correct, it is unnecessary to examine *95the bars set up against the present claim, because of the lapse of time. Should it be possible, however, for the plaintiff to substantiate a claim against the intestate of the ■defendant, analogous to that which a tenant in common can prefer against his companion for a destruction of the , . ■thing, we see no reason wherefore it must not be brought within the time limited for such actions. Fifteen years elapsed in this case since the wrong complained of, and twelve years since the first administration taken .out on ■Francis Speight’s estate, before any demand shown or suit brought, and three years with us is a bar to an action of trover. If James Gatlin did not stand in the relation of trustee to the plaintiff or those whom he represents, but his error gives the plaintiff nevertheless a claim to compensation, makes him either a legal or equitable creditor of the deceased, I can see no reason why the bar of the act of 1715 does not, apply. It is not confined to any particular suits, or to suits in any Court. But it operates in all where the claimant comes as a creditor, and such claim and creditor existed at the death of .the person whose estate is pursued. If the plaintiff laboured under the notion, that being'a defendant to the former bill was a suing within the ordinary act of limitations, or a making of claim within the meaning of the act of 1715, it was unquestionably a mistake, and it would be too unreasonable to allow him to derive benefit from his mistakes, however innocent, while he seeks to render others liable to him for mistakes equally honest.

*94formed, upon the expiration of the life estate, and in such a case if the executor is entitled in remainder, he holds as legatee, and not as executor.

The cases Zofucojer' N. c. Term Ingram v. Terry, 2 in-Alston v. Foster, 1 Dev. Eq. Ca.337; ^Barham 3 Id. 420,’ ToRoberts* 4 Dev. Rep. 9¿ approv'

*95a claim in against a joint own-tel^ndo^" gous to one detraction of it, is bar-statute of limitation, ferrad within three yeaIS'

And the ofadformer bijt parties ^oth will not repel it-

It is the opinion of the Court, that the bill must be dismissed with costs.

Pee Cueiam.. Bill dismissed.