The appellant presented a claim against the estate of Joseph L. Shepherd, deceased, for the sum of §2,371.80, alleged to have been received by deceased as the guardian of the appellant. The County Court allowed the sum of §1,555 as a seventh-class claim, from which allowance the administrator prosecuted an appeal io the Circuit Court, where an allowance was made for the sum of §56, from which an appeal is prosecuted to this court.
On the 24th of June, 1862, the deceased was, on his petition, appointed guardian of his three infant daughters, appellant being one of them.
In said petition he stated that the three infants were entitled to property from the estate of Joseph Davis, deceased, estimated at §56, due them as heirs of their mother, then deceased, who was one of the heirs of the said Joseph Davis. He was accordingly appointed and was required to give bond and surety in the sum of §112. which was done. It does not appear that he ever made a report of his acts as guardian nor that any further order was ever made in respect to the matter by the court which so appointed him. The evidence tends to prove that the deceased, Joseph L, Shepherd, received a considerable sum of money from the proceeds of land inherited by his wife, the mother of these girls, from her father, Joseph Davis. This money was received by him at different times between the death of his wife, which occurred in 1857, and the year 1860, the last receipt being two years or more before he was appointed guardian.
The whole sum thus received was something near §1,000. Whether he then regarded this money as belonging to his children or whether he considered it his in whole or in part does not very clearly appear, but when he applied for letters of guardianship he did not seem to think it was his. Thei e is evidence, however, which tends to prove that at a later period he deposited in the bank of John C. Short & Co., of -Danville, a sum of money which at the time of the failure of the bank, in 1S73, amounted to about §2,600. This money, before and after the failure, he spoke of and referred to as “ the girls’ money.”
On one occasion, soon after the failure, he was requested by one of the girls, Elizabeth, to settle, when he said that he had lost the money belonging to her and appellant (the other sister having died without issue) in Short’s Bank; that he was working hard to accumulate the amount, and when lie did, he would put it in land and fix it so the girls could have the benefit of it when they were old ; that they were young and able to work but when they got old they would need it. He seemed to be angiy about it and Elizabeth never spoke to him on the subject aftenvard. The two girls wrere then of age. There is also some evidence, though quite unsatisfactory, as to a recognition of the same state of facts as late as 1884, some two years before his death, but the statement made by the witness is rather indefinite and leaves the impression that there is great doubt as to what was actually said — so much so that the Circuit Court evidently gave it but little weight and it is not much pressed by counsel. It appears that the deceased had married his second wife before he was appointed guardian; that by this wife he had seven children; that the appellant and her sister Elizabeth lived with him until they married, and that, when he died, in 1886, he left an estate consisting of some four hundred acres of land, the value not given, besides personal property valued at §15,000; that he was prompt in the payment of his debts and that but very few claims had been presented against his estate.
From these facts thus briefly stated it is probable he did not consider himself under any legal obligation to account for the money lost in the bank, either because he supposed he was not bound to bear the loss and make it good, or because he did not regard the money as really belonging to the girls, though no doubt intending that they should have it. It is reasonably certain that the girls knew what were his views as to this, and that the delay of nearly thirteen years after the younger one. the appellant, came of age, to press their claims, was not due to any want of information as to the facts. The question presented is, whether the claim is barred by the statute of limi tations. The Circuit Court held that it was, except as to the amount that might be recovered upon the bond, and accordingly allowed appellant $56, being one-half of the penalty of the bond. The appellee, while not admitting the propriety of this allowance, assigns no cross-error in respect thereto, and we are therefore to consider only whether the statute of limitations was properly applied to the residue of appellant’s demand.
It is insisted on behalf of appellant that this is an express 'or direct trust and not barred by the statute of limitations. To exempt a trust from the bar of the statute, it must be, first, a direct trust; second, it must be of the kind belonging exclusively to the jurisdiction of a court of equity; and third, the question must arise between the trustee and the cestui que trust. Angell on Limitations, Sec. 166; Hayward v. Gunn, 82 Ill. 385.
Angelí also says, Sec. 174, that where the trustee denies the right of the cestui que trust, he abandons his fiduciary capacity, and the statute will apply. School Directors v. School Directors, 16 Ill. App. 654.
It is not easy to determine what is the character of the trust, if there was any in this case. The money came to the hands of the deceased before he assumed the duties of a guardian, and whether he had the right to claim it as his own, in law, or whether he felt bound to pi-e-serve it for his children, he did not seem to consider it any part of the estate which he was to handle as guardian. If, then, the character of a trust is to be impressed upon it at all, it would seem to arise by operation of law, .and it would therefore belong to the classof implied trusts, and in that view the statute of limitations will be applicable. But if, as appellant argues, it is a direct trust because of the subsequent appointment as guardian, then we must hold that it is not of that cHss of trusts which belong exclusively to the jurisdiction of a court of equity.
There is no reason why the appellant might not have urged her claim in a court of law during the lifetime of her father with as much propriety as to present it for allowance against his estate after his decease. It must therefore be subject to the statute.
Again, there seems but little doubt that soon after the failure of the bank, he denied his liability in a legal sense, though admitting and avowing a purpose to make a provision, in his own way and in his own time, for the benefit of the girls. In this they seem to have acquiesced, and probably because they were conscious that they had no legal claim upon him. ■
We are impressed with the belief that in this case, as in most cases, the statute of limitations, if successfully interposed as a bar, will work no injustice. Had the claimant pressed her demand while her father was yet alive, it is to be presumed, .from what is even now disclosed, that be could have shown he was not liable. He was solvent, prompt in the payment of his debts, and no reason is apparent for withholding a valid claim until after his death.
It is urged the Circuit Court erred in not classifying the allowance made as of the sixth class.
It does not appear that the court was asked to do this, and no such ground is set out in the motion for a new trial. It should not be presented here for the first time. O. & C. R. R. Co. v. McMath, 91 Ill. 104.
We consider it not important, however. The estate is large and the claims against it are inconsiderable in amount, so that it is not material in what class the allowance is placed. II ence, if the omission were error, it should not work a reversal The judgment of the Circuit Court will be affirmed.
Judgment affirmed,.