Stoff v. Schuetze. took title in his own name, to the effect that he held such land for those interested in the estate, notwithstanding such administrator was dead at the time of the trial, as such declarations were in effect admissions in disparagement of his title and were made while he was in possession of the land, and were accordingly competent against him and all claiming under him. 3. LIMITATIONS: Administrator as Trustee: Statute Does Not Apply. The administrator being a trustee for the heirs of land bought with estate funds, the Statute of Limitations did not apply to them, particularly in view of the fact that during his life he advised them not to bother about the land while he was living, warned them against consulting lawyers, admonished them not to go to court and assured them they would get what was coming to them when he died, and they acquiesced and made no investigation during his life. 4. : Notice to Distributees of Adverse Claim. Upon the death of such administrator and the probate of his will, such beneficiaries, having made an investigation and found that he had taken title in his own name to land bought with estate funds and had devised his estate to his second wife, were thereby charged with notice of his adverse claim, and the Statute of Limitations began to run against them from that time. 5. FINAL SETTLEMENT: Undistributed Assets on Hand: No Discharge. Where the final settlement of an administrator showed a balance due him from the estate, and also showed uncollected notes due the estate exceeding the amount of such balance, and none of his settlements accounted for or mentioned land bought with estate funds but deeded to him, or the rents and profits therefrom, and the final order of the probate court did not discharge him, but merely provided that "he be no longer required to make annual settlements," he still remained within the control and jurisdiction of the court and was not released from liability for the undistributed assets, and the distributees were entitled to a decree vesting them with the title to such land. 6. RESULTING TRUST: Equitable Relief for Plaintiff Enures to Defendant: Undenied Material Allegations. Where plaintiff, in a suit to declare a trust in land and to be vested with title thereto and for an accounting of rents and profits, alleged that she and her brother, one of the defendants, were equally entitled thereto as devisees in remainder under the duly probated will of their father, and such allegations were not denied, they being material stood admitted, and the plaintiff being held entitled to recover, such recovery enures to the equal benefit of said brother. 7. MARRIED WOMAN'S ACT OF 1875: Prior Marriage: Wife's Personalty: Rights of Husband. The Married Woman's Act of 1875 Stoff v. Schuetze. did not apply to marriages in existence at the time of its passage or to rights which had then accrued, and hence where the husband of such marriage had, prior to the passage of such act, received the money coming to his wife from her father's estate and had invested it in land, taking the title in his own name, he thereby reduced such money to his own possession, and the statute did not operate against him, and his devise of such land to his second wife vested her with the title, and the children of his first wife by her first husband could not recover it on the theory that their step-father was a trustee thereof for their mother and after her death for them, particularly in view of the fact that in 1891 she had executed an assignment, acknowledged substantially as re, quired by the statute relating to real estate, of all of her inheritance to him, therein referring to its use in improving such land. 8. APPELLATE PRACTICE: Death of Respondent: Revivor. This case having been continued in the Supreme Court five times by stipulation of counsel, and counsel for plaintiff having thereafter suggested the death of the defendant against whom the relief was sought, and thereafter counsel for such defendant having suggested that the cause be revived against her legal representative and heirs, and entered his appearance as counsel for such parties, but no formal order of revivor having been made, the court now orders that the cause be revived against such legal representative and heirs, and the judgment is reversed and cause remanded to be proceeded with in accordance with the opinion. Appeal from Franklin Circuit Court.-Hon. R. A. Breuer, Judge. REVERSED AND REMANDED. James Booth and Jesse H. Schaper for appellant; Shepard Barclay of counsel. (1) An executor or administrator is a trustee, and when he purchases property with funds of the estate he holds the property in trust for the estate and those entitled thereto; and it makes no difference whether the deed be to him as executor or administrator or not. Harney v. Donohoe, 97 Mo. 144; Hynds v. Hynds, 274 Mo. 123; Patterson v. Booth, 103 Mo. 402; 24 C. J. 200-1. (2) Where land is taken by the executor or administrator Stoff v. Schuetze. in payment of a debt due the estate, the land becomes assets in his hands and not property held in his individual right, and it should by way of substitution be subjected by him to the payment of debts and legacies, and to distribution, like personalty. 24 C. J. p. 201, sec. 708; Mabary v. Dollarheide, 98 Mo. 198. (3) An administrator is a trustee, and cannot set up the Statute of Limitations in bar to the next kin or persons entitled to the distribuion of the assets of the estate. To a suit by a distributee for his share against an administrator, holding the fund in trust, the Statute of Limitations does not apply. No lapse of time is a bar to a direct trust, or a fraud, as between trustee and beneficiary. Rubey v. Barnett, 12 Mo. 3; Decouche v. Savetier, 3 Johns. Ch. 190; Dillon v. Bates, 39 Mo. 292. (4) The so called "final settlement" of Schuetze in 1863 did not release him from the trust. It does not purport to discharge him; no order of distribution was made, and the trust imposed by the facts was not changed. Rugle v. Webster, 55 Mo. 250; Ewing v. Parrish, 148 Mo. App. 500; Rogers v. Johnson, 125 Mo. 202. (5) The declarations of Schuetze while in possession of the land were admissible as original evidence. 1 Greenl. Evi. (16 Ed.) sec. 108; Boynton v. Miller, 144 Mo. 681; Anderson v. McPike, 86 Mo. 293. (6) The facts show that it was a fraud on plaintiff for Schuetze to dispose of these tracts contrary to the trust on which he admitted he held them. But that could not be, and was not, discovered until his will was known by probate in 1915; so plaintiff is not barred. R. S. 1919, sec. 1317; Bank v. Nichols, 235 Mo. 401. (7) The investment of the funds of plaintiff's mother by Schuetze, in his own name, would raise a trust for her. Holman v. Holman, 183 S. W. 623. (8) The facts in evidence show an express declaration of trust for the children of the beneficiary, and that a writing to that effect was executed and destroyed by Schuetze. The inference must be that said paper writing was a declaration of the trust he verbally agreed to. Pomeroy v. Benton, 77 Mo. 64; Shawhan v. Distill. Co., 195 Mo. App. 450. (a) The de E Stoff v. Schuetze. 1 fendant's Exhibit D is insufficient to divest the estate of plaintiff in said property, already vested in her by said trust; and was nugatory under Missouri laws. R. S. 1919, sec. 7328; Moss v. Ardrey, 260 Mo. 595. (9) There could be no start for the bar by limitation before the death of Schuetze, as he would be entitled to possession of the land until then, as tenant by curtesy, there having been a child born of his first marriage. Roberts v. Nelson, 87 Mo. 229; Bradley v. Railroad, 91 Mo. 493. John W. Booth for respondent. (1) The Statutes of Limitation apply to all actions saving those which by statute are specially excepted. Rogers v. Brown, 61 Mo. 187; Adair v. Adair, 78 Mo. 635; Buren v. Buren, 79 Mo. 538; Hoseter v. Sammelsmann, 101 Mo. 619; Franklin v. Cunningham, 187 Mo. 184; Freeland v. Williamson, 220 Mo. 217; Hudson v. Cahoon, 193 Mo. 547. (2) In express technical trusts the Statute of Limitations does not begin to run until the trust in denied by the trustee; but the cestui que trust, in case of such denial, is limited to the period allowed for the recovery of legal estates at law. In implied trusts, the Statute of Limitations begins to run as soon as the facts are brought to the knowledge of the cestui que trust so that he can take steps to enforce the trust. Keeton's Heirs v. Keeton's Admr., 20 Mo. 530; Buren v. Buren, 79 Mo. 542; Hunter v. Hunter, 50 Mo. 445; Smith v. Ricord's Admr., 52 Mo. 481; Landis v. Saxton, 105 Mo. 486; Shelby County v. Bragg, 135 Mo. 291; Loomis v. Railroad, 165 Mo. 469; Callan v. Callan, 175 Mo. 346; State ex rel. v. Yates, 231 Mo. 276; 25 Cyc. 1159; 36 Cyc. 27. (3) Failure to discover fraud will not toll the statute unless the party sought to be charged as trustee does some act preventing discovery. State ex rel. v. Musick, 165 Mo. App. 214. (4) The burden is on the party seeking relief against fraud to show that he did not have notice within the period of limitation. Central Bank v. Thayer, 184 Mo. 61. (5) If a party against Stoff v. Schuetze. whom an implied trust is sought to be established is in possession, or if the cestui que trust has notice of the main fact constituting the fraud, the statute will commence running from that time. Hunter v. Hunter, 50 Mo. 452. (6) Prior to the time the Married Woman's Act of 1875 went into effect the right of a husband, with or without the consent of his wife, to reduce to his possession and use as his own his wife's personal assets and money, including money arising from sale of her real estate, as at common law, was complete. Tillman v. Tillman's Estate, 50 Mo. 40; Hart v. Leete, 104 Mo. 315; Leete v. Bank of St. Louis, 141 Mo. 574. (7) The existence of a life estate is no impediment to an action by the remainderman for equitable relief in a matter affecting his title as remainderman. 16 Cyc. 663; Hoester v. Sammelmann, 101 Mo. 619. (8) Proof that a paper was destroyed, not accompanied by any evidence of the contents. of the paper, cannot be taken as evidence of a written declaration of trust in land. Even a fragment of a writing failing to show a trust in personal estate which is inexplicit as to the property is inadmissible though it bears the signature of the party sought to be charged with the trust. McKee v. Allen, 204 Mo. 685. (9) When one of the parties to the cause of action on trial is dead the other party is not a competent witness in his own behalf, or in behalf of any person jointly interested with him. R. S. 1919, sec. 5410; Messimer v. McCray, 113 Mo. 387 to 390. (a) This disqualification extends to all matters which might be disputed by the deceased party relative to his personal conduct or declaration or admission. Elsea v. Smith, 273 Mo. 396; Leava v. Ry. Co., 266 Mo. 151; Brown v. Patterson, 224 Mo. 639. (10) The disqualification created by R. S. 1919, sec. 5410, is not removed by dismissal of the suit as to that party. Messimer v. McCray, 113 Mo. 382. (11) Except as to newly discovered assets or performance of some formal act in execution of a sale made by an administrator, an administrator's power and authority as such is terminated by approval of his final settlement made after due no |