This action was brought by John Cade McAdams and Francis May McAdams, who were minors without a guardian, and sued by their mother, Sally McAdams, as next friend, to recover of George McAdams upon the following promissory note or obligation in writing:
"On or before the first day of January, A.D. 1886, I promise to pay to L.A. Abercrombie, as trustee or next friend of John Cade McAdams *Page 654 and Francis May McAdams, minor children of George R. McAdams and Sallie McAdams, and for the exclusive use and benefit of said minor children, the sum of twelve hundred dollars, with 10 per cent per annum interest thereon from maturity until paid.
"In case the said Abercrombie should die before this note is paid, or should fail or for any cause neglect to act as trustee or next friend to said minors, then it is to be paid to and collected by anyone that the mother of said minors may designate or appoint, or in case of her death, to the duly appointed guardian of said minors. This December 8, A.D. 1883.
[Signed] "G.R. McADAMS."
The note was set out in full in the petition; and it further appeared from the averments of the petition, that the consideration of the note was the separate means of the said Sally McAdams loaned to the appellee, who was her husband, and which she gave and desired to secure to their children, the minor appellants, as an advancement; that the note was executed and delivered to the said L.A. Abercrombie, who died in the year 1892; and that afterwards the said Sallie McAdams and her husband, the appellee, had been divorced, and the custody of their children awarded to the mother. Upon demurrer setting up the statute of limitations in defense, the court below held, that it appeared from the face of the petition that the cause of action was barred by limitation of four years next before the death of the said L.A. Abercrombie and before the institution of the suit, and rendered judgment for the appellee.
When the legal title to property is vested in a trustee, who can sue for it, and fails to do so within the statutory period, an infant cestui who has only an equitable interest will also be barred; but the rule is otherwise when the legal title is vested in the infant, or cast upon him by operation of law. Wood on Lim., sec. 208. Such is the rule stated by Mr. Wood in his work on limitations of actions. In this State, where equity and law are blended and administered together by the same court, we do not see any good reason why the exception in favor of an infant cestui should not continue, even if there is a trustee with the legal title authorized to sue. But the rule as laid down by Mr. Wood has been adopted by our Supreme Court in the case of Collins v. McCarthy, 68 Tex. 150, between which and the case now before us we can see no substantial difference. See, as having some bearing on the rule above stated, Thomas v. Greer, 6 Tex. 372; Lacy v. Williams, 8 Tex. 182; Hanks v. Crosby,64 Tex. 483; Rindge v. Oliphant, 62 Tex. 682 [62 Tex. 682]; Guest v. Rhine, 16 Tex. 549, though the precise question was first decided in this State in Collins v. McCarty, supra.
Upon the authority of that case, the judgment of the court below will be affirmed.
Affirmed. *Page 655