counting at a particular time, considered, of course, in connection with the concurrent right of the trustee or guardian to go into court of his own volition and account, does not fix such time as a period from which elther a statute of limitations applies or equitable principles in analogy thereto are applicable.

There being no direct decision in this state upon this subject, we are free to adopt whatever view seems best. I think it best to assimilate this trust with all other like trusts, and to hold that so long as the guardian has the property of the ward-that is, so long as he has not accounted for it-he should be held as a trustee with a direct, subsisting, continuing trust, unaffected by statutes of limitations or principles in analogy thereto. I think the reasoning of the cases taking this view is more satisfactory than that of those which take an opposite view. I am also of opinion that the rule that I have laid down is the wiser one. It is certainly more equitable to each of the parties concerned. I see no reason why a guardian having property of the ward confided to his care should be treated in any different aspect than any other trustee to whom is confided the property of a cestui que trust. He has it in his power, when the ward comes of age, of ridding himself of the burden of the trust by taking the proper proceedings either in a probate court or in this court, or, of course, by a direct settlement with the late ward. I do not see that any good purpose is served by holding that the right which the ward has of calling the guardian to account should be construed as a strict legal right subject to the statute of limitations, and I do not think that it is within the spirit of such. Speaking generally, those actions which are within the spirit of the statute of limitations are such as lie with an actor; and, if he neglects or fails to take advantage of the legal procedure open to him for a fixed period, it is the policy of this legislation to end the right. But, where trusts are concerned, the situation is radically different. There there is no one who must be the exclusive actor. Either party may, at any proper time, apply to the court and obtain full relief. Under such circumstances I can see no reason why a trustee should have protection after a stated period because the other party has not proceeded; it having been all the time within the power of the trustee to have himself proceeded had he seen fit. Succinctly stated, the argument of the defendants is that the statute of account of this state (Gen. St. p. 5) gives the right of action for an account against a guardian, and that the statute of limitations (Gen. St. p. 1974, § 8) provides, inter alia, that all actions of account shall be commenced within six years next after the cause of action shall have accrued. Therefore they argue that we have a case in which there is a concurrent remedy at law and in equity, and the legal remedy is barred by the statute, whereupon a court of

equity will hold that an action in equity is likewise barred. It is unnecessary to cite any of the numerous cases which affirm this doctrine; but the doctrine is not applicable to the case in hand. The doctrine just contended for applies where the courts of law originally had jurisdiction, and courts of equity subsequently obtained or were held to have concurrent jurisdiction. There, as has been just stated, a statute of limitations which barred the right of action at law equally barred it in equity. But, where the court of law did not originally have jurisdiction, the fact that it subsequently acquired it, and the action in it was barred by the statute, does not result in finding that the suit in the court of equity is likewise barred.

In the case of Hedges v. Norris, 32 N. J. Eq. 192, it was held that the statute of limitations is not a bar to a suit in equity for the recovery of a legacy payable out of the personal estate only. In that case the Chancellor held that an executor was a trustee with respect to the sum of money due the legatee, and that, while that trust subsisted, the statute of limitations did not run in favor of the trustee. The trustee insisted that the Legislature, by the act of March 11, 1774, had provided for the recovery of legacies by actions at law, and that thereafter courts of equity and courts of law had concurrent jurisdiction, and what would bar the action in one would have a similar effect in the other. To this the Chancellor replied that equity had jurisdiction over legacies before the courts of law assumed it, and he pointed out that, where a court of equity has jurisdiction and a court of law subsequently acquires concurrent jurisdiction, this will not serve to deprive the court of equity of its jurisdiction, nor to bind it by limitations which affect the action at law. With respect to the matter of account at law, it will be found that the action only lay, so far as guardians are concerned, against guardians in socage. Bouvier's Law Dic., Rawle's Ed., vol. 1, p. 64; Ency. of Pl. & Pr. vol. 1, p. 84. An interesting and instructive history of guardianship at common law will be found in Foley v. Mut. L. Ins. Co., 138 N. Y. 333, 34 N. E. 211, 20 L. R. A. 620, 34 Am. St. Rep. 456. In the case of Green v. Johnson, 3 Gill & J. (Md.) 389, it is said that "this action of account for rents and profits maintained by the heir after he had attained the age of 14 against the guardian in socage was the only one, other than an action on the bond, that could be brought against a guardian, as guardian, in a court of law." Ordinarily proceedings to require guardians to account must be brought in a probate court (In re Hannah Barry, supra), or in a court of equity, if there was anything exceptional in the case requiring the interposition of a court of equity. It therefore appears that at a time when courts of equity, under their peculiar jurisdiction respecting trusts, undoubtedly had jurisdiction over

the accounts of guardians, the common-law courts only had a limited jurisdiction respecting guardians in socage. The effect, therefore, of the act of our Legislature passed in 1794 vesting jurisdiction in the common-law courts of actions of account against guardians generally, was not to divest the court of equity of its jurisdiction with respect thereto, and any limitations placed upon such common-law action do not, directly or by analogy, bind the court of equity. Determining, then, that the relationship between a guardian and ward is a direct, subsisting, continuing trust, the conclusion is reached that, as between this ward and her mother down to the time of the death of the ward, there was no running of the statute, and no application of principles of limitation analogous thereto.

The next question to be considered, therefore, is whether the statute began to run at the date of the death of the ward. It will be observed that the second period previously spoken of by me is now under consideration. I am of opinion that if, in this state, a cause of action arising upon the death of a person, and not until his death, is barred if the statutory period begins to run at the date of his death, then this action or suit is barred; but I do not find that this is the law. In fact, the decisions are to the contrary. The authorities hold that, where the cause of action did not exist during the life of the party and came into existence subsequent to the party's death, the statute does not begin to run until the appointment of a representative. Dekay v. Darrah (Sup. Ct. 1834) 14 N. J. Law, 288, 296; 19 Am. & Eng. Ency. of Law, 219, note 3, p. 220. The time between the death of the party and qualification of personal representative is not counted. Id., p. 220, note 3; 2 Eng. Rul. Cas. p. 133, note; Murray v. East India Co., 5 B. & Ald. 204 (1821); Pratt v. Swaine, 8 B. & C. 285, 6 L. J. K. B. 6 (1828); Atkinson v. Bradford Soc., 25 L J. Q. B. 360 (1890); Rhodes v. Smethurst, 6 M. & W. 351, 16 Eng. Rul. Cas. 146 (1840); Pinckney v. Burrage, 31 N. J. L. 21, 24.

My conclusions, therefore, are that as between guardian and ward there is a direct, continuing, subsisting trust until the guardian accounts; that the statute or implication of limitations does not apply thereto; that during the lifetime of this ward, after her coming of age and until her death, the statute had not begun to run; that at her death it may be proper to hold that the relation between the living guardian and the person entitled to call her to account was not a direct, subsisting, continuing trust outside the statute, but was a trust by implication, and therefore within the purview of limitations. But the limitation does not begin to run until there is a person entitled as representative of the deceased ward to call the guardian to account, and such a person in this case did not come into being until the ap

pointment of the administrator of the de ceased ward's estate in March of 1906. As this suit was brought almost immediately thereafter, it is, of course, not barred by the running of the statutory time against the administrator.

The motion to strike out the bill therefore fails.

(72 N. J. E. 439)

LIPP v. FIELDER et al. (Court of Errors and Appeals of New Jersey. Feb. 2, 1907.)

1. WITNESSES-COMPETENCY-PERSON SUED IN

REPRESENTATIVE CAPACITY.

Where a plaintiff sued in his lifetime to compel specific performance of an alleged verbal promise by his wife, that on the death of either, certain land which complainant had purchased in her name should become the land of the survivor, the wife's, executor being a necessary party in his representative capacity, both because he had a power of sale under the wife's will, and because he might need the proceeds of a sale of the property to pay debts, the husband was not a competent witness, under Pub. Laws 1900, p. 362, excluding a party as a witness, where the opposite party is sued in a representative capacity.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 651, 652.]

2. TRUSTS-EVIDENCE TO ESTABLISH.

Complainant purchased certain land with his own money, but caused it to be conveyed to his wife to prevent his children by a former marriage from obtaining the same at his death. On the death of the wife he sued to establish a trust in the same, that if one died the other would get the property. Held, that the evidence was insufficient to rebut the presumption that the wife took the property by irrevocable gift.

3. WILLS-CONTRACT TO WILL EVIDENCE. Evidence held insufficient to establish a contract by which a wife agreed to make an irrevocable will in her husband's favor. Vroom, J., dissenting.

Appeal from Court of Chancery.

Suit by William C. Lipp against Benjamin H. Fielder, Jr., as executor and others, for specific performance of a verbal promise to convey land. From a decree denying such relief complainant appeals. Affirmed on opinion of the chancellor.

The opinion of STEVENS, V. C., is as follows:

"This is a suit which was begun by William C. Lipp in his lifetime for the purpose of compelling the specific performance of an alleged verbal promise made to him by his deceased wife that at the death of either of them certain land, which he had purchased in her name, should become the land of the survivor. He has since died, but not before he gave his testimony in reference to the alleged agreement. The defendants to the bill are Benjamin H. Fielder, Jr., executor of the wife, and the Lakewood Library Association, her devisee. I think that without the testimony of the deceased complainant, the allegations of the bill, either in its original or amended form, are not satisfactorily prov ed. The first question is therefore whether

the complainant is a competent witness under that provision of the evidence act, which excludes a party from being sworn as a witness, where the opposite party is sued in a representative capacity. The complainant testified shortly before the new evidence act took effect (Laws 1900, P. L. p. 362), but that does not make any difference in this case. Under Kempton v. Bartine, 59 N. J. Eq. 149, 44 Atl. 461, Id., 60 N. J. Eq. 411, 45 Atl. 966, and Wyckoff v. Norton, 60 N. J. Eq. 478, 46 Atl. 614, the executor is a necessary party. In any view, he is a proper party. He has in fact been made a party in his representative capacity, both because he has a power of sale under the will, and because, as is said by Grey, V. C., in the case first above cited, he may, as executor, need the proceeds of sale to pay the testatrix's debts. Inasmuch as the executor and devisee are really as well as formally on the same side, are equally interested in resisting the complainant's claim, and will both be injuriously affected by the establishment of that claim, it seems to me that Hodge v. Coriell, 44 N. J. Law, 456, applies. The record is conclusive, and prevents the complainant from testifying against either defendant, because that record shows that on the defendant side there is a party being sued in a representative capacity. This renders it unnecessary for me to consider whether a devisee is a party sued in a representative capacity, where the suit is based upon the contract of the ancestor, which, it is alleged, binds the devisee or affects the lands devised to him-a point upon which there is a conflict of authority. Without this testimony, I think that the Duvale Case, 54 N. J. Eq. 581, 35 Atl. 750, and 56 N. J. Eq. 376, 39 Atl. 687, 40 Atl. 440, is not applicable.

"The complainant, Lipp, was a farmer. On April 14, 1869, the Bricksburg Land Company, for the consideration of $1,080, agreed to convey to him a tract of land near Lakewood, containing 36 acres. In February, 1871, the company, instead of conveying it to him, conveyed it to his wife, Joanna. They had been married in May, 1866, and, on August 23, 1868, Joanna had executed a will by which she gave all the property then possessed by her, or of which she might thereafter become possessed, to her husband. The evidence indicates that her husband had made a similar disposition in her favor at the same time. In point of fact neither of them at that time possessed property of any considerable value, except a mortgage which the wife held, and from which she appears to have realized $500. The complainant's insistment is that at the time of the conveyance of the tract in controversy to his wife, it was verbally agreed between them that the property should be his if he survived her. Outside of his own evidence, which must be disregarded, the witness chiefly relied upon is Abraham Daily, a Brooklyn lawyer. He says that, in a conversation had between

himself and Mr. and Mrs. Lipp at the dinner table, 16 or 17 years before, he testified: 'It was stated that Mr. Lipp had purchased that property, taking the title in the name of his wife, so that if anything should happen to him, certain relatives whom he had in California would not come on and disturb her; that an agreement had been made between them that she, on her decease, was to leave a will giving the property to him, so that he would have a home if he outlived her.' He says, further, that the question came up whether under Mrs. Lipp's will, as then made, the property subsequently acquired would pass, and he said 'that there would be no necessity for drawing an additional will as long as that will was made to cover any subsequent purchased property.' He says distinctly, on cross-examination, that the agree ment referred to preceded, as he understood, the making of the wills. These wills, as I have said, were made nearly three years before the deed was actually delivered. The statement was the complainant's statement to him, and not his wife's, although made in her presence. It was not made in a professional interview, but casually, at the dinner table, 16 or 17 years before the witness testified. Assuming, however, it to be a perfectly correct version of what was said, and assuming moreover that, because not contradicted by the wife, at the time, she must be deemed to have admitted its truth, it neither shows a binding promise to dispose of the land by will, nor does it show a resulting trust.

"It is said in Duvale v. Duvale, supra, that, when lands are purchased by one person who pays the purchase price, and they are .conveyed to another person who is a stranger, a trust in the land is implied, and results in favor of him who has paid the consideration. But that where a husband purchases and pays for lands, and takes the title in the name of his wife, a presumption arises that the husband has caused the conveyance to be made by way of settlement upon her, and that this presumption will only be overcome by clear proof to the contrary. As I have said, Mr. Daily testifies that he understood that the agreement preceded the making of the wills. Now, as Vice Chancellor Reed said, in Duvale v. Duvale, 54 N. J. Eq. 588, 35 Atl. 750, a verbal agreement to exchange wills would not, so far as land was concerned, be binding, because of the provisions of the statute of frauds. The making of the wills themselves would not be part performance. Either party could revoke at pleasure, unless restrained by binding contract, and such contract, if it had reference to land, must have been in writing. Up to the time of the conveyance, therefore, neither party was bound. Then came the conveyance. Now this conveyance standing by itself, even assuming, as the evidence indicates, that it was paid for by the husband's money, would, under the operation

of the rule above stated, import a gift to or settlement upon the wife. This being its import, how, in the absence of any agreement then made, could it be regarded as proof that the wife thereupon became bound by contract to devise the land to her husband that her will, up to that time revocable, now, because her husband made her a gift, became irrevocable. Such an insistment seems to me to be little short of absurd. But how does the matter stand upon the notion of a resulting trust? The presumption is in the case of a wife against a resulting trust. It must be shown clearly and satisfactorily that a resulting trust was intended. Here we have no proof of any agreement relating to the matter, or even of any admission of facts from which such agreement could be inferred. A verbal agreement relating to a will that she had made three years before, having no reference to that particular land, is certainly not proof of such agreement. The transactions have no inherent relation to each other; they are severed in point of time, and they are not connected by evidence. There is no express proof that it was agreed that Mrs. Lipp was to hold the land as trustee, and it cannot be reasonably inferred that she then irrevocably bound herself to do so, because three years before she had made a revocable will. Mrs. Lipp's title was evidenced by a regular deed, made at her husband's instance, and duly recorded. It declared in terms that she was to hold for her own use. Public policy requires that such a conveyance should have its proper effect, unless there is convincing proof to the contrary.

"The other evidence produced by complainant amounts to little more than the admission by the wife of that which was the undoubted fact, viz., that she had made a will in her husband's favor, and that under this will he would take at her death. Several of complainant's witnesses testify that the reason both Mr. and Mrs. Lipp gave for putting the title in her name was that his children by his first wife would be thereby prevented from getting the property. That he did not wish to provide for them, appears from the fact that in January, 1899, he, by his last will, left all his property to his niece, the present complainant. The result of the evidence, outside of the husband's, seems to be this: That he wanted to secure his wife in the possession of the property in his lifetime by a decisive act which his children by his first wife could not nullify, and that, having at that time entire confidence in her, he was willing to trust her sense of right to leave him the property by will if she died first. It was not until 20 years afterwards that they quarreled.

"Mrs. Daily testifies that Mrs. Lipp told her that Mr. Lipp had bought the property with his money, and put it in her name so that she would be protected; but that she had made a will and left it all to him. Mr.

Marston says he heard them say that if one died the other would get the property. Clara Lipp, the present complainant, Mr. Lipp's devisee, goes further. She says that on one occasion Mrs. Lipp said that her husband had put the deed in her name, so that if anything should happen his children would not cause trouble; 'that they had an agree ment that whoever should die first, the other should take the property.' In her conversation with this witness it would appear that Mrs. Lipp admitted an agreement; but what agreement? If the reference is to the agreement to make mutual wills, it is disposed of by what has already been said. If to some other agreement, when and where and under what circumstances was it made? Was it supported by a consideration? Was it in writing, or was it merely verbal? Without information on these important points, it is impossible to say whether or not an obligation arose, or a trust resulted. This witness, whose interest in the result is apparent, does not give us any information about them. A statement so indefinite can hardly avail to overcome the evidence of the deed, and be deemed satisfactory proof of the allegations of the bill."

R. Ten Broeck Stout, for appellant. Aaron E. Johnston, for respondents.

PER CURIAM. The decree in this case is affirmed for the reasons stated in the opinion filed in the Court of Chancery by Vice Chancellor STEVENS.

VROOM, J., dissents.

(71 N. J. E. 770) SEVEN MILE BEACH CO. v. DOLLEY et al.

(Court of Errors and Appeals of New Jersey. March 7, 1907.)

1. SPECIFIC PERFORMANCE-CONTRACT TO CONVEY REAL ESTATE-RIGHT OF PURCHASERPERFORMANCE BY PUrchaser.

Where a contract called for the conveyance of certain land to a corporation on its establishment of a school at a certain place, and the corporation became defunct, and was declared to have no existence in law, and it abandoned any intention of carrying on a school, it could not have specific performance on an offer by the incorporators to form another corporation, and perform the requirements of the contract.

2. SAME RELIEF TO DEFENDANT - PAYMENT OF TAXES..

Where specific performance is decreed in favor of a purchaser of land, he is bound to pay the taxes on the property from the time that he was entitled to a conveyance.

Appeal from Court of Chancery.

Suit by the Seven Mile Beach Company against Charles S. Dolley and others. Appeal by defendants from a portion of the decree. Affirmed on the opinion of Vice Chancellor Bergen in the court below. See 65 Atl. 991.

Following is the opinion of Bergen, V. C., of the court below;