delivered the opinion of the court:

This action was brought by the children and grandchildren of Elizabeth Edwards, deceased, against Woolfolk’s administrator, to recover several slaves which he had in his possession.

The plaintiffs claimed title to the slaves, under a deed of trust, which purported to have been made in July, 1825, by John Edwards, James M. Edwards, and Lydia Edwards, to Henry Rudy; by which the grantors conveyed to the grantee a negro woman named Sylvia, in trust for the separate use of Elizabeth Edwards during her natural life, and at her death for the use and benefit of such children as she might then have living. The deed was executed by the trustee, and upon his acknowledgment, and the proof of its execution by two of the grantors, before the clerk of the Jefferson county court, it was admitted to record in his office on the next day after its date.

*379The slaves sued for are the descendants of Sylvia. The defendant claimed them as administrator, under a purchase from James M. Edwards, the husband of Elizabeth Edwards, the cestui que trust for life, made by his intestate, in August, 1835. He also relied upon the statute of limitations in bar of the plaintiff’s claim.

It was proved that Henry Rudy, the trustee, died in 1834, and that administration on his estate was granted the same year. His heirs and administrator, were, during the pendency of the action, on the motion of the plaintiffs, made co-plaintiffs with them in their petition.

The circuit court instructed the jury that the statute of limitations was a bar to the plaintiffs’ action, if they believed from the evidence that administration was granted on the estate of Henry Rudy, the trustee, five years before this action was commenced, and that the defendant and his intestate had the adverse possession of the slaves in contest, during the same period of time.

The defendant obtained a verdict and judgment in his favor, and the plaintiffs have appealed to this court.

It appeared upon the trial that Elizabeth Edwards, who was entitled to the beneficial use of the slaves during her life, died about four years before this action was commenced ; consequently, the right of her children to the beneficial use of the slaves accrued within five years next preceding the bringing of their action.

The doctrine is well settled, that in the case of a vested remainder, the right of action cannot be taken from the person entitled in remainder, by a bar which commences and runs against the preceding particular, estate. (May’s heirs vs. Hill, 5 Litt., 309.) The reason upon which this doctrine is founded is very obvious. The remainder man is not entitled to the possession of the property until the termination of the particular estate, and therefore, as he *380cannot sue for it during its continuance, he is not prejudiced by any adverse possession during that time.

It seems, however, that as to real estate, the rule is otherwise, in the case of a contingent remainder. There, every thing which bars or destroys the particular estate, has a similar effect upon the remainder; inasmuch as it depends upon the particular estate.

In this case the interest of the children of Elizabeth Edwards was clearly contingent. Only such of them as were living at the time of her death acquired an interest in the slaves, under the deed. Until that period arrived their right was contingent, inasmuch as, during her life, it could not be determined in whom the estate would vest.

But although a contingent remainder in land is defeated by a bar to the claim of the tenant of the particular estate, by the statute of limitations, it is otherwise as to chattels. An adverse possession of slaves, during the existence of the particular estate— no matter how long it may continue — will not bar the contingent remainder. (Boone vs. Dyke's legatees, 3 Monroe, 538.)

If, then, the persons entitled in remainder in this case had been invested with the legal title to the property, their right of action to the slaves sued for would not be affected by the adverse possession, during the continuance of the estate for life. But the legal title, if it passed under the deed, was in the trustee, and upon his death it vested in the administrator, who held it, not only for the benefit of the tenant for life, but also for the persons who might be entitled in remainder. By the terms of the deed the trust did not cease upon the termination of the life-estate, but was continued subsequently, and the estate in remainder was of the same character as the estate for life.

It is clear that the legal estate which is vested in a trustee, together with the equitable interest dependent upon it, may be defeated and divested by *381the statute of limitations, and this though the cestui que trust be an infant. (Hill on Trustees, side page 504; Wych vs. The East India Company, 3 P. W., 310.)

The principle is, that the legal cause of action is in the trustee, and it is his duty to sue a stranger, who has obtained the possession of the trust property, and is holding it adversely; and the cestui que trust may require him to perform this duty; and upon his refusal, may bring an action in equity against the trustee and the person in the possession of the property, for its restoration to the custody of the trustee. For this reason, the equitable right is barred by the statute, whenever the legal right is barred.

But is the equitable right of those who are entitled in remainder, as well as that of the tenant for life, defeated in consequence of the right of action of the trustee being barred by the statute of limitations? The trustee holds the legal title in fee, as well for the benefit of the particular estate as the estate in remainder. When his legal right is barred both estates are thereby clearly affected, and it is difficult to perceive any ground upon which the estate in remainder can be withdrawn from the operation of the statute. A right of action exists in the trustee, for the benefit of both estates; and in this respect there is a clear distinction between a case of this kind, and that where the legal title to the estate is in the tenant for life, and also in the remainder-man. In the latter case the cause of action does not accrue until the estate for life is determined. But in the former, it exists, not only in the trustee, but also in the holder of the equitable title in remainder, who may bring an action in equity to re-establish his right, from the first moment of the breach of trust, or as soon as the trust property has come into the hands of a stranger, who holds it in opposition to the trust. (Andrew vs. Wrigby, 4 B. C. C., 125, referred to in Lewin on Trusts and Trusteees, 24th volume Law Library, side page 615.)

*382We are inclined to the opinion, therefore, that the right of action in this case, in the persons beneficially entitled in remainder, as well as in the person who held the legal title as trustee, was barred by the statute of limitations. But if we are mistaken in this conclusion, still the judgment for the defendants was proper, as the plaintiffs did not, upon the issue between the parties, establish their right to the slaves.

The defendant denied that the grantors in the deed of trust had any right or title to the slave, Sylvia, conveyed by them to the trustee; and also denied that the plaintiffs had any right or title to the slaves sued for. The plaintiffs failed to prove that the grantors in the deed had title, or that James M. Edwards, who sold the slaves to the defendants’ intestate, acquired the possession of them under the deed, or ever held under it, or recognized its validity. The deed did not confer on him any right or title to the slaves, the trust therein declared being for the separate use of his wife. His vendee, therefore, had a right to claim in opposition to the deed, and his possession was adverse, both to the title of the trustee and the cestui que trusts. And there is no evidence that he held under the deed of trust, or had any knowledge of its existence. Consequently, the plaintiffs did not prove that they were invested by the deed of trust with any right or title whatever, to the slaves in controversy.

Wherefore, the judgment is affirmed.