Field C. J. and Cope, J. concurring.
This bill was filed by the plaintiffs, one of whom is the daughter of Don José de la Guerra, deceased, and of Maria Antonia Carrillo, his late wife. The bill states that the mother of the female plaintiff died in 1843, her husband surviving her; that during the coverture property, real and personal, to a large amount, was acquired by the joint labor, etc., of these spouses, as community property; that this property was held, possessed, and disposed of by the Survivor during his life, in part, and a portion left at his death; that he died in 1858, leaving a will, in which the defendants were made executors, and also legatees of the larger portion of the estate; that the mother of the female plaintiff left several children surviving her, but that these have been settled with, and have released their claims on their mother’s estate, except the plaintiff; and that, as to her, no settlement has been made, but that she is still entitled to her interest. Some other averments are-made, which it is not necessary to notice in this place.
The case went off, on demurrer of defendants to the complaint, in the Court below; and we now proceed, on this appeal, to consider the- main causes of demurrer.
*741. By the Mexican law, as we understand it, the husband was entitled to the use, control, and disposition of the common property during the coverture. Upon the cessation of the matrimonial union by the death of the wife, the husband might still continue the possession of it, as surviving partner of the matrimonial union, and might sell or dispose of it in liquidation of the community debts. It is not necessary to decide whether, under the Mexican system, he could sell or dispose of it for other purposes, so as to pass title to third persons, for the bill in-this case asserts that portions of it were disposed of by him; and neither he nor his representatives could set up a want of power so to act in answer to a demand for settlement of the share of the proceeds coming to the heir. The heir, by this claim, might affirm the sale, and hold the vendor responsible for the price or her proportion of it. Upon the death of the wife, the children of the spouses succeeded to the interest, subject to the payment of debts, etc. A Court of Chancery has jurisdiction to settle the account and ascertain the share and interest of the heirs. The heirs do not claim as succeeding to the title of the father, but as succeeding to the title of the mother. There is no necessity, as we held in the case of Packard v. De la Guerra, for "taking out administration upon the mother’s estate. The husband holds really as survivor of this matrimonial copartnership, and as the remedy of the heir is governed by the laws now existing, we see no difficulty in giving to the right of the heir, whether arising out of a past system or the present, the same remedy which we would apply in the case of a representative at common law claiming of a surviving partner in a commercial partnership, distribution of partnership effects left, after the settlement of the firm debts, in the hands of such survivor. He holds not as owner, but as partner : first, to pay the debts—a duty devolving upon him by his relation to the deceased partner and to the creditors; and secondly, as trustee for the representatives of the deceased, so far as theirinterest in the residue of the estate is concerned. His possession, lawful when assumed, continues for the purposes of the partnership and the duties of his trust; and he cannot, by his own act, without the consent or laches of the heir or representative, change, for his own benefit, the tenure by which he holds. In all such cases we under*75stand the rule to be that the trustee cannot silently disavow the trust, and set up an exclusive holding in himself. The holding becomes adverse only from the time when notice is given the beneficiary or cestui que trust of the individual claim of the trustee.
But if this were not so, the deceased was holding the property, in presumption of law, as well for the heirs as for himself. They were tenants in common with him in it; his possession was their possession;. and he could not, merely by his act of control or dominion, as of his own property, however unequivocal, change the title and tenure, unless such acts and claims were brought directly to the knowledge of the heirs, and they assented or acquiesced.
It is, moreover, held by the civil law that when the husband keeps undivided the common property after the death of the wife, it is presumed to be done with the acquiescence of the heirs, and the effect is to continue the partnership. (See Escriche’s Dic., verb. Bienes Gananciales, 368.)
In the aspect in which this case is presented, it is the case of a claim not to the estate left by Don Jose De la Guerra, but a claim to the estate of his deceased wife, to which estate the plaintiff succeeded upon her mother’s death; the surviving husband being the trustee of the female plaintiff in this regard, and responsible to her as such. The claim of the plaintiff is to the share of the property disposed of by the trustee, and to that undisposed of and in the hands of that trustee during his fife, and which came to the executors after his death. This claim "seems to have been presented to the executors—at least it is so averred in the bill; and we think that the general principle giving chancery jurisdiction of cases of trust applies' here with special force, for not only, according to the bill, is there a trust, but an Account is necessary, and also a discovery of assets.
What we have said disposes of the question of the Statute of Limitations, which has no application, for the reason that it does not run against a trust of this sort.
While we have held that a demurrer will lie when the complaint shows the bar of the statute, yet it must clearly so appear upon the facts stated. In what different aspect the answer may present this defense we cannot know; and upon the case as it is finally so pre*76sented, the defendants may still insist upon this defense if the facts hereafter educed vary from those in the complaint.
Some other points are made, but we think that they are not well taken.
Judgment reversed and cause remanded.