This cause was heard and decided in-the court below, on a demurrer to the bill; and the de *368murrer was sustained and the bill dismissed. The grounds of the demurrer were, the want of equity in the bill, staleness of complainants’ demand, the statute of limitations, and that there had been a final settlement in the probate court of the estate of Claiborne Carter, deceased.
1. The alleged invalidity of the devise and bequest made by the will of Claiborne Carter to the children of Robert D. James, forms the gravamen of complainants’ case. This will was before this court in a previous case between the same parties, and was then fully considered and construed. Carter’s Heirs v. Carter’s Administrators, 39 Ala. 579. In that case it was held, in substance, that where the will took effect by the death of the testator, in May, 1860, the emancipation of slaves was prohibited both by the Constitution and a statute of the State; that our law also prohibited slaves from going at large, and enjoying the profits of their own labor; that the devise and bequest to the children of Robert D. James were made to depend upon the performance of either one of two alternative conditions precedent, viz:— that seven slaves named in the will should be “manumitted and set free,” or, be permitted to “enjoy their liberty and the profits and results of their own work and labor”; and that these precedent conditions having been illegal and void, when the will took effect, the devise and bequest were inoperative. Upon careful consideration, we reaffirm and adopt the construction of the will thus given.
2. Section 3381 of the Revised Code makes the statues of limitations, which are applicable to actions at law, likewise applicable to suits commenced by bill in chancery. The period of limitation to actions at law for the recovery of land, is ten years; and for the detention or conversion of personal property, sis years. The title to both real and personal property is involved in the present suit; and by analogy to the statutes of limitation at law, above named, complainants’ suit was not barred, either as to the personalty or realty, at the time the bill was filed. The will was admitted to probate on the 17th of June, 1861, but the statutes respectively applicable did not commence to run until the 21st of September, 1865 — it being the settled law of this State, that in computing the time necessary to create the bar of the statutes of limitations, the time elapsing between the 11th day of January, 1861, and the 21st of September, 1865, should not be estimated, in consequence of the pendency, during that period, of the late war between the States. The bill in this case was filed within less than five years from the time the statutes began to run; and the defense of the *369statute of limitations, and of the staleness of complainants' demand, can neither of them interpose a good defense to the bill.
3. The next ground of demurrer insisted upon is, that there had been a final settlement of Claiborne Carter's estate before the bill was filed, and that, therefore, the court of chancery had no jurisdiction of the case.
This ground of demurrer cannot be sustained. Within six months from the date of the probate of the will, the administrators obtained an order of the probate court to divide and distribute all the personal property of the estate; and the presumption is, that the division was made in accordance with the provisions of the will. This proceeding on the part of the administrators in the probate court was ex parte, and it does not appear that the complainants had any notice of it whatever; besides, the record shows them to be, all, non-residents of the State. The effect of the division was, to place the property beyond the reach or control of the administrators, and of any process the probate court could issue. The administrators, having been the actors and parties to the division, could not repossess themselves of the property. Such was the decision of this court in Carter’s Heirs v. Carter’s Administrators, supra; and in that case it was also held that “the remedy of the heirs at law and next of kin of Claiborne Carter, was in chancery.'' If they had not a remedy in chancery, it is clear they would be remediless.
To render a decree on final settlement of an administrator’s accounts valid and conclusive, the parties in interest must be brought before the court by notice. Before the final settlement was made, but while it was pending, one of the heirs and distributees of the estate, in behalf of himself and the others, filed a petition in the probate court propounding their interest, and claiming distribution in the estate. Upon the hearing of this petition it was dismissed by the court, doubtless under the belief, bona fide entertained, that under the provisions of the will the petitioners had no interest in the estate; this decision of the probate court was sustained by this court on an appeal therefrom, on the ground, before stated, that the property having been divided under the will, it was beyond the control of the probate court, or of the administrators ; and that consequently that court was powerless to award distribution of it between the complainants. Thus it will be seen that the complainants, without fault or neglect of theirs, but by the act of the administrators, performed, though it may have been, in good faith, were deprived of their rights in the estate, and the probate court of *370the power to award to them their just rights on the final settlement. There can be no valid distinction in principle between the rights of heirs and distributees thus placed, and the rights of such as never had any notice of a final settlement which is intended to be conclusive of their rights. Under these circumstances we cannot hold the final settlement of Claiborne Carter’s estate binding, or conclusive, on the complainants.
Let the decree of the chancery court be reversed and the cause remanded.