legitimate cestuis que trust. This appears, also, to be the general doctrine in the books: Dig. 5, 3, 20, 3; Pothier, Traite du Droit de Propriete, n. 400, 406; Hub. Prælec, lib. 5, tit. 3, de Hered. Pet., sec. 14. If the plaintiffs are entitled, under the marriage contract, as representatives of the surviving widow, to all the personal estate left by C. J. F., they are not barred from asserting the claim, by lapse of time.

2. The person under the name of M. F., to whom letters of administration on his estate were granted in June, 1810, succeeded to the possession of the property, not in her own right, but expressly as trustee for the party having right. That party was, in this case, the true and lawful widow of C. J. F., under the marriage contract, or that widow and the next of kin, under our statute of distributions. She took the property into her hands as administratrix. This was a direct and express trust, and she could not have set up the statute of limitations, as a bar to the widow and next of kin. It would be unjust for the person who takes possession of the property of the intestate, under the authority of law, qua administratrix, to be at liberty, after six year's possession, to set up the statute of limitations, as a bar to the cestuis que trust. All the cases admit, that no time bars a direct trust, as between trustee and cestui que trust. The settled rule is (and so it was recently declared by the master of the rolls, in Cholmondeley v. Clinton, 2 Merivale, 360), that so long as a trust subsists, the right of a cestui que trust cannot be barred by the length of time during which he has been out of possession, and that he can only be barred by barring and excluding the estate of the trustee. This general rule applies to this case; for an administrator is a trustee for the party entitled by law. His very office is a trust, and he can take in no other capacity. Lord Hardwicke said, 2 Ves. 482, that executors and administrators were, to many purposes, considered in chancery as trustees.

There is a class of cases which admit a reasonable time to be a bar; but these are cases in which a party is turned into a trustee by matter of evidence, merely, and who took possession originally in his own right, and was, prima facie, the owner. Thus in Bonny v. Ridgard, cited in 4 Bro. 130, 138, and in 17 Ves. jun. 97, the fraudulent purchaser of a leasehold estate, from an executor, was not permitted, by Lord Kenyon, to be turned into a trustee for the children of the testator, in conse quence of the great lapse of time between the purchase and the filing of the bill. So, in the cases of Andrew v. Wrigley, and

Beckford v. Wade, 4 Bro. 125; 17 Ves. jun. 57, the suits were brought to disturb purchasers, on the ground of fraud, and to turn them into trustees, by construction; and the court held, that in these cases of a possible, eventual trust, depending upon proof, length of possession was, and ought to be, a bar, upon the principle of the statutes of limitations. But these cases have no relation to suits against the very executor or administrator, by the next of kin, or other person entitled to the distribution of the assets. The executor, though he may plead the statute, as against a creditor, Webster v. Webster, 10 Ves. jun. 93, can never plead the statute of limitations as a bar to a legacy: vide the cases in 1 Johns. Ch. 316. Where even a trust is created by will to pay debts, such a trust is held not to be within the statute of limitations: Norton v. Turvill, 2 P. Wms. 145. The true ground of the equitable jurisdiction over executors and administrators, in compelling the payment of legacies and distributive shares is, that they are trustees for those purposes. This is the declared doctrine in Farrington v. Knightly, and Wind v. Jekyl, 1 P. Wms. 249, 572. The statute of distributions, say the books, was intended as the will of the intestate, and the succession to personal estate is as much fixed as the title of the heir to the real estate at common law; and on the ground of the trust in the administrator, chancery assumed the power of compelling distribution as soon as the statute was passed: Winchelsea v. Norcloffe, 2 Rep. Ch. 237; Matthews v. Newby, 1 Vern. 133.

I am not prepared to say that the statute of limitations might not be set up by the persons to whom the administratrix bequeathed the trust property, provided sufficient time had elapsed after her executors or leg.tees had succeeded to the possession. There may, perhaps, be a sufficient analogy between such a case and that of the purchasers under the executors in the cases to which I have referred. I mean only to declare, that no time is to be computed against the plaintiffs, while the administratrix had possession of the property; and the subsequent time falls short of any legal bar.

It will be observed that I have considered the question of time as governed by our own law, and that the limitation of suits was to be taken from the lex fori, and not from the lex loci contractus. The counsel for the plaintiffs contended that the French law of prescription ought to govern in this case, which was stated to give a period of thirty years, and he called my attention to a doubt upon the question, raised in the case of

Van Reinsdyk v. Kane, 1 Gall. 371, in which the inclination of the court appeared to be in favor of the foreign prescription in cases between foreigners; and it was considered as an important question open for consideration. The respect which I feel for every opinion of the learned judge who gave that intimation, induces me to pause for a moment upon the point.

It is not for me to say whether this can or cannot be an open question in courts of the United States; but it is sufficient for my direction, that the rule is settled in this state by the judgment of the supreme court in Ruggles v. Keeler, 3 Johns. 263 [3 Am. Dec. 482]. That decision, as it appears to me, is not only well supported by authority, but is founded on principles of public convenience and policy, which have met with a very general assent and reception. Our statute of limitations contains no exception, in form, of foreigners or of foreign contracts, but is general and peremptory in its terms. And why should our courts be disturbed by the litigation of stale demands of foreigners, grown difficult and obscure by time, when an action upon such demands is denied to our own citizens by the wise policy of the law? It is a question of municipal convenience and public utility, which every government has not only a right to consult, but is bound in duty to promote. The plea of the statute of limitations does not touch the merits of the contract. It merely bars the remedy, in the particular domestic forum, and does not conclude the plaintiff in his own, or in any other foreign country. To render the matter of the judgment a res judicata, it is necessary that the grounds of the judgment should be the same: Graham v. Maxwell, 2 Dow. 314. The reason of the exceptio rei judicata is to prevent endless litigation and discordant decisions: Dig. 44, 2, 6; the reason has no application to such a plea. The statute of limitations has reference to the ordinatio, not to the decisio litis; and, therefore, to use the language of the civilians, servanda est consuetudo loci ubi causa agitur.

In the provinces of the Netherlands, the local limitation where the action is brought prevails, and Huberus, De Conflictu Legum, sec. 7, cites two adjudged cases to that effect prior to the year 1680. He considers the rule of prescription as affecting the remedy, and not the merits of the case. Ratio hæc est, quod praescriptio et executio non pertinent ad valorem contractus, sed ad tempus et modum actionis instituendæ. The supreme court of Massachusetts, in Pearsall v. Dwight, 2 Mass. 84 [8 Am. Dec. 35], adopted the rule for the same reason; and

that decision ought to be regarded as authority, for it was the unanimous opinion of the court, delivered by the late Chief Justice Parsons, whose vigorous mind was richly endowed with various learning, and who possessed that quick discernment and deep knowledge of legal principles that justly rendered him the ornament and pride of his country.

There can be no doubt that the same rule is considered as the settled doctrine in the courts at Westminster Hall. Thus in Dupleix v. De Roven, 2 Vern. 540, the parties were Frenchmen, and the debt was contracted in France, and yet the lord keeper made no scruples of allowing a plea of the English statute of limitations. This was in 1705. In the late case of Williams v. Jones, 13 East, 439, the court of the K. B. held explicitly, that the English statute of limitations was to govern, notwithstanding the parties had contracted abroad and resided abroad so long as to have been barred by the foreign statute of limitations. The statute of limitations was considered barring the remedy only, not as extinguishing the right. Lord Ellenborough said, "There was no law or authority for saying, that where there is an extinction of the remedy only in the foreign court, that shall operate, by comity, as an extinction of the remedy here also."

The same rule is now settled law in Scotland, where the civil law is adopted as the common law of the land. Professor Erskine, in his Institutes of the Scotch law, vol. 2, 581, sec. 48, says, that the decisions there had formerly been fluctuating on the point, but that the latest cases had made their own law of limitation the rule of their judgment; and this side of the question he considers to be founded on the better reason. Lord Kaimes, Principles of Equity, vol. 2, p. 353, speaks with peremptory decision, and says: "It ought never to be made a question; for our own prescription must be the rule in every case that falls under it." The same rule is also declared in equally explicit terms by Voet, in Commentaries on the Pandects Com. ad Pand. lib. 44, tit. 3, sec. 12: Si praescriptioni implendae alia pracfinita sint tempora in loco domicilii actoris, alia in loco ubi reus domicilium fovet, spectandum videtur tempus, quod obtinet ex statulo loci, in quo reus commoratur.

The counsel for the plaintiff also referred to a passage in Pothier, Trait. de la Prescription, No. 251, to show that the law of prescription of the plaintiff's domicile, ought to govern; but I apprehend that Pothier alludes only to the various and unequal periods of limitation prevailing in the different prov

inces of France, of which he gives examples in the section succeeding the one cited. He was not speaking of foreign rules of limitation, extra teritorium. Pothier has again and again recognized, Trait. des Ob., No. 642, 654, 684, the distinction admitted in so many authorities, that a plea of the time of limitation does not extinguish the debt, but only bars the remedy. The French law of prescription, like ours, appears to be intended to apply to, and govern, directly and positively, all persons whomsoever, who cannot bring themselves within one of of the exceptions: Trait. de la Prescription, No. 247; Code Napoleon, No. 2251.

My opinion, accordingly is, that the plaintiffs are entitled to the whole of the property in question, and that the proposition, on their part, to divide the property with the unfortunate children of C. J. F., who are defendants, is very beneficial to the latter, and ought to be accepted.

3. I am of opinion that the proposed compromise is, also, beneficial in another view of the case. The widow might have waived her rights under the marriage contract, and have sued for her moiety of the personal estate of her husband, under our statute of distributions. I see no impediment to her right of election. The contract was for her benefit; and to waive it was yielding her title to the whole, and accepting of a part. It is said, Inst. au droit Francois par Argou, tom. p. 30, that upon the dissolution of the community, by the death of the husband, the wife, or her heirs, may renounce or accept her rights under it. The representatives of the husband would surely be estopped in this case, from setting up the marriage contract as a bar to her claim to a distributive share. The contract was made and intended for the connubial state; and to give it the due effect, the parties ought to have continued faithful to each other; instead of which we find that the wife was deserted by the husband, in 1792, after he had formed an adulterous connection; his lawful wife was left without protection and support; and after a great number of years, she ended her life in an hospital. It is not for the representatives of such a husband to set up, in bar of a distributive share, under our statute, a marriage contract, which he had thus violated and abandoned. If the widow might have waived her benefits under the contract, and have resorted to her title at law, her representatives, who have succeeded to her rights, are entitled to the same privilege.

If the demand was now of a moiety of the personal estate, under the statute of distributions, there could be no bar to the