Walter S. Schwabe, C.J.
1. In this case plaintiff claims joint possession of certain trust property in respect of which he was appointed a co-trustee with his brother, now deceased. It would appear that he and the brothers lived together for softie time and the brother was the person who for many years was the only executor under the Will by which they were appointed trustees and was also the acting trustee of this trust 'which was created for certain charitable purposes. The brothers seem to have fallen out somewhere about 1907 and litigation ensued. The brother died in 1910 leaving two infant sons surviving him and a widow. From that time till now the widow and her sons continued to manage the trust property. The plaintiff now claims to, be entitled to joint possession and joint management of the trust property.
2. It is admitted that the plaintiff was a trustee but it was said that his rights are burred by limitation. There seem to me to be three complete answers to that. In the first place, Section 10 of the limitation Act says that, notwithstanding anything contained in the limitation Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives for the purpose of following in his or their hands such property, shall be barred by any length of time. In my judgment this is an action by one of two co-trustees it is true but against a trustee for the purpose of following in his hands a trust property. In my judgment, the words are wide enough to cover a case by one of two trustees who claims against the other that the property ought to be held by the two. It would have been very remarkable if it were not so for one of two trustees would be left in possession and the other who s is liable for the acts of his co-trustee would be met by a plea of limitation. Even if this view of Section 10 of the Act is wrong, there remains to be considered the effect of some correspondence within two years of the launching of this suit, The plaintiff had written to the widow stating that he had taken out Probate, he being the sole surviving executor under the Will which appointed r him and his brother trustees, and he claimed from her and his nephews possession of the property. The answer that was given by the widow and guardian of the infant children written by a Vakil on her behalf was this: 'I am further a instructed to state that on the death not my client's husband your *** declined to have any thing to do with the management of the estate and asked my client to manage the same on behalf of her sons.' I entirely fail to see how possession obtained or retained; under those circumstances can be adverse possession amounting to ouster for she writes through her own legal advisers saying that she is managing by request and with the consent of the co-trustee, the plaintiff, jointly with her sons acting through herself; and, it passes my comprehension to understand an argument put forward on the basis that, when one of two trustees says to the other 'you take possession and hold possession of the property,' that other can afterwards say that he is in adverse possession.
3. The other point turns on the next: paragraph of the letter and it is in these terms: 'I am further instructed to state that even if your client has now obtained Probate as mentioned in your letter under reply, my client on behalf of her sons and your client are jointly entitled to administer the properties of the estate in accordance with the Will.' There one has, in words, an admission of the plaintiff's right made by the Vakil on behalf of the defendants within two years of the suit being brought, which is in itself sufficient evidence that the possession held by her oil behalf of her sons was not possession adverse to the plaintiff.
4. For these reasons, I agree with the judgment of the learned Judge and this appeal must be dismissed with costs.
5. I am of the same opinion. There are two points which. appear to me to be fatal to the appellants in this case. The first is Section 10 of the Law of Limitation to which the only answer of the learned Vakil who has argued the case with greatfulness, is that that section only applies when the trustee is being called to account by a stranger, and not when the person who seeks to investigate the affairs of the trustee is a co-trustee; for that position, I find no authority, and none was suggested to exist, and it seems to me to be a proposition that, on the face of it, you do away with half the benefit that the section of the Act intended to confer.
6. The next is the letter, Exhibit V, written by the mother of the infants. It is argued against that by Mr. Kothaudarama Mudaliar that guardians cannot make admission on behalf of their wards. That, no doubt, as a general proposition, is perfectly sound, but here we ate investigating a certain fact, namely, was the possession of the guardian on behalf of her minor children adverse to the plaintiff or was it not, it being in her possession. The answer is, that what ,she said about it is perfectly admissible as showing quo animo she, representing her children remained in possession of the property. She could perhaps have given some evidence by her words or her acts that she believed herself and intended herself on their behalf to be occupying adversely to the plaintiff. But if she did not, you cannot impute to the minors an intention and a character in possession which was not the intention or the character in which their guardian who represents them acts-for them. You cannot manufacture ex post facto, merely because they were minors, the adverse quality which the actual possession was never clothed with.
7. In my opinion, this appeal fails, and I agree to the order proposed by my Lord.