Dunn v. Dunn.

Clark, C. J. The jury having responded “No” to the issue, “Did the defendant keep the said $400 separate from his own funds after its receipt in 1869 ?” it is well settled that he was not protected from liability because of the subsequent depreciation of Confederate money. Shipp v. Hettrick, 63 N. C., 329; Cummings v. Mebane, Ibid., 315. But the Court erred in directing the jury to answer “No” to the issue, “Are the claims of all the plaintiffs barred by the statute of limitations ?” The sole express trust reposed in W. B. Dunn by the will was to hold the fund “for the sole use and benefit of Benjamin C. Dunn,” to receive and pay over the interest' to him annually. At the death of the life tenant, the express trust terminated. Baker v. McAden, 118 N. C., 744. The trustee then held the fund simply upon an implied trust to pay over to the plaintiffs to whom, by the terms of the will, the title to the fund then passed. The trustee was charged with no duty save that imposed by the law to pay over when called on. The statute runs against an implied trust. Parker v. Harden, 121 N. C., 57; Faggart v. Bost, 122 N. C., 522; Robertson v. Dunn, 87 N. C., 195. *535 In case of a demand and refusal, three years- is a bar (Robertson v. Dunn, supra), and the Court properly held that one of the plaintiffs, having-made such demand and not having begun this action within three years from the failure of the defendant to pay, was barred. House v. Arnold, 122 N. C., 222; Board of Education v. Board of Education, 107 N. C., 367. But as to the other plaintiffs, who made no such demand, ten years was a bar under The Code, sec. 158, which limitation began to run as soon as the plaintiffs, who were under no disability, were at liberty to sue. Eller v. Church, 121 N. C., 272. The life tenant died, and the right to the fund accrued to the plaintiffs in 1888, but this action was not begun till 1902. In instructing the jury to respond that all the plaintiffs were not barred of recovery, there was Error.