It is shown by the petition that Mrs. Murphy was a married woman at the time the conveyance was made by her mother to D. T. Smith, and that she so continued until the institution of this suit, from which it follows that limitation could not have run against hér.
The averments of the petition wherein it alleges that the defendants, during the life time of Mrs. Elizabeth Smith, induced her and the plaintiffs to believe that the trust on which the conveyance to D. T. Smith is alleged to have been made would be carried out after her death, we are of the opinion are sufficient to prevent the running of the statute as to Mrs. McElyea.
The fact that the trustee made conveyances of the entire tract of land to the four sons of Elizabeth Smith, would not cause the statutes of limitations to run if these sons so acted as to induce the belief that on the death of their mother they would convey unto each of their sisters an equal share of the land. If the lands were conveyed to the trustee D. T. Smith on the trust alleged in the petition, then the plaintiffs had an equitable interest in the land, which would follow it into the hands of any person taking it through deeds from the trustee with knowledge of the trust, even if such persons had been purchasers for value, of which there is no pretense in this case.
All the evidence shows that the property was conveyed to D. T. Smith in trust for the five sons alone, or in trust for all the children of Elizabeth Smith. The trust on which the land was conveyed was not evidenced by the deed, nor by any other writing, nor was it shown that the purpose of the trust was declared at the time the conveyance was made to the trustee. The appellants rely upon declarations claimed to have been made by Mrs. Smith several days before the deed was executed, and the appellees, we think, were properly permitted to prove the declarations made by Mrs. Smith to her daughter on the day *79before she executed the deed, but after she had determined to •do so and had made all the necessary arrangements therefor.
The court below submitted to the jury the following special issues:
First. If Elizabeth Smith conveyed the land described in plaintiffs’ petition to D. T. Smith, with the understanding at the time that such conveyance should be for the benefit of any one else other than the said D. T. Smith, state what persons she intended should be benefited by the conveyance. Give the names of each of such persons, if any.
Second. When D. T. Smith accepted the deed from his grandmother, Elizabeth Smith, was there an understanding between Elizabeth Smith and D. T. Smith as to what disposition the said D. T. Smith should make of the land? And if there was such an understanding state what the understanding was, and to whom he was to convey it.
Third. If either of the parties to this suit have had actual possession of the land sued for, give the names of the parties holding such possession, and also state the years during which such possession was held, and whether such possession was adverse to the defendants to this suit. Also state if either of the plaintiffs were married women-, which were so married, and the date of the death of the husband.
The jury found on the first issue that the land was conveyed to the trustee in trust for all the children of the grantor. On the second they found that there was an understanding as to the distribution of the land, and that it was to be divided between all the children of the grantor in equal shares. On the third they found that neither of the parties to the suit had been in actual adverse possession of the land.
These findings embrace every material issue in the case. As before said, the plaintiffs and defendants all agree that the land was conveyed to D. T. Smith in trust, and the evidence offered by each party as to declarations made by the grantor, before the execution of the deed, tending to show what the trust was, being of the same character, was made under such circumstances that it all ought to be considered in connection with the subsequent acts and declarations of the sons to whom the trustee made conveyances.
The declarations made by Mrs. Smith to Mrs. Murphy, many years after the conveyance was made to the trustee, ought not to have been received. The rights of the parties were fixed *80when the deed was made to the trustee, and the general rule, which rejects declarations made by a grantor after he has parted with title, when introduced for the purpose of affecting the title or right fixed by the deed, must have application in this case.
Opinion delivered January 21, 1887.The wish expressed by Mrs. Smith on her death bed that the land should be divided equally between all her children ought to have been excluded, for the reason stated; but, if admissible, it would only have tended to show what her wish was about eleven years after the rights of the parties were fixed.
The first charge requested would have made any declaration by the grantor, made to the trustee at any time before the land was conveyed to him, conclusive of the question, even though the jury might have believed from the evidence that Mrs. Smith, prior to making the deed and upon the eve of its execution, had declared to all her children, in the ultimate expression of her intention, but not in the presence of the trustee, that the property was conveyed in trust for the equal benefit of all. Neither the trustee nor any of the sons of Mrs. Smith stand as innocent purchasers.
The real question was: For whose benefit was the trust created? And this we are of the opinion must be determined from all the declarations made by the grantor before the deed was executed, and from the subsequent acts and declarations of the trustee and of the sons who took deeds from him, and, as bearing upon the question, the acts of all the parties who participated in the transactions which led to the making of the deed, ought to be considered.
The charge would have confined the jury to a consideration of only part of the evidence which, under the peculiar facts of this case, ought to have been considered, and besides was calculated to cause the jury to give weight to the conduct of the trustee, after the deed was made, to which it was not entitled.
The second paragraph of the charge requested was subject to some of the objections stated to the first. Under the facts in evidence the court would not have been justified in giving the .third paragraph of the charge asked.
For the error in admitting the evidence of Mrs. Murphy as to declarations made by Mrs. Smith long after the conveyance to the trustee was made, the judgment will be reversed and the cause remanded.
Reversed and remanded.