Peyton Graves died intestate in the year 1861, in Desha county, the owner of five or six slaves and-some other personal property, but of no lands. ; He left a widow and three infant children. The widow took administration upon his estate, and claims to the amount of $2000 were proved against it. Being administratrix she could not set out her own thirds in the personalty of which her husband died possessed. She therefore applied to the probate court for that purpose, and commissioners were appointed to make the allot-, ment. What action, if any, was taken by these commissioners, does not appear. No report was filed by them, so far as the probate records show; and they, as well as the widow, are now all dead.
The widow, in 1862, was married to Hydrick. And in August, 1863, Hydrick purchased the Touchstone place, a body of lands mostly unimproved, containing 1278 acres. The consideration expressed in the deed he received wás $13,700. The transaction is proved to have been made on the basis of confederate money, then much depreciated. In paying for the lands, Hydrick used two of the slaves, three oxen and one *474wagon, which belonged to the Graves estate. Touchstone took the slaves at an estimated valué of $1500 each, and the rest of the property is proved to have been worth, in confederate notes, from $300 to $500. Hydrick took the title to the lands in his own name, but subsequently -conveyed-one hundred and sixty acres of the tract to a trustee, who reconveyed to Mrs. Hydrick. The motive for this seems to have been that her means were used in the purchase of the property. The parcel settled on Mrs. Hydrick was the choicest and best improved part of the tract.
The accounts of the administratrix were never settled, and Graves’ debts remain to this day mostly unpaid. No further administration was had, it being doubtless considered that the assets, consisting principally of slaves, had perished as a result of the war. .At the death of Mrs. Graves, her children, being three by the fifst marriage •- and--one by the.;last,., inherited the land which was conveyed to her, and they are now in possession of it.
The heirs of Peyton Graves now filed their bill against Hydrick, and L. A. and X. J. Pindall; who had purchased some of the Touchstone lands under execution against Hydrick, to establish a resulting trust in the lands on account of their having,been.partially paid for with the property belonging to their father’s estate. Their prayer is that Hydrick may be declared a trustee for them, and that he be charged with the value of the property so converted by him to his own use, and that the same may be declared a lien on the lands, paramount to the title of the Pindalls.
Hydrick died before answer filed, and the cause was revived against his administrator and heir.. The suit was resisted on various grounds. And at the hearing the circuit court dismissed the bill.
In support of^ the decree it is argued that, at the date this transaction, no property existed in slaves, by virtue of the emancipation proclamation of President Lincoln. But this was a war measure, and could not proprio vigore alter the status of a slave, nor deprive the owner of his property. It had no legal efficacy except so far as it was actually put in operation by the armies in the field setting free captured slaves. The adoption of the constitution of 1864 is the true date of the liberation of the slaves in this state.
Arising7from fnfant’s'property‘
It is further urged that Hydrick sustained no fiduciary relation to the plaintiffs, or to the property of Graves’ estate ; that the property was not, as to him, trust property; and his sale of it was therefore a naked conversion, not a breach of trust. But-the answer to this.is that the property belonged to the plaintiffs, subject to their ■ mother’s rights and the payment of their father’s debts; that Hydrick stood to them in loco parentis; and that he became a trustee by intermeddling with the property of these infants. Story on Eq. Jur., sec. 511; Lenox v. Notrebe, Hempst., 225; Van Epps v. Van Deusen, 4 Paige Chy., 64.
Although the evidence shows that the ancestor’s debts have not been all paid and the affairs of the estate finally settled, and notwithstanding the administrator-is the proper party to sue for a conversion of the intestate’s effects, heirs can not be forever kept out of their rights by the neglect of the administrator, or of creditors to enforce payment of their demands. Mays v. Rogers, 37 Ark., 155; Stewart v. Smiley, 46 Id., 373.
Upon the merits the decree does substantial justice. The slaves, oxen and wagon, which Hydrick put into the land trade did not probably exceed in value the share which the law provided for his wife out of the estate of her deceased husband. In that case, a court of equity would set off her claim against the value of the property with which she was to be charged,
*476notwithstanding her dower may never have been formally assigned. Menifee v. Menifee, 8 Ark., 9; Trimble v. Fames, 40 Id., 393.
Hydrick, then, has converted two slaves, in which his wife had only a life interest, the reversion belonging to the plaintiffs, into land. The slaves were a species of property that was about to perish. Hydrick has so arranged the title to a part of the land that, at his wife’s death, it will descend to her children. And the shares of the plaintiffs are an ample equivalent for their interest in the slaves. The plaintiffs could not have been injured in any event. For, if the slaves had continued to be property, they would not have been bound by the disposition Hydrick made of them. But retaining the land, which represents their slaves, and hot offering to surrender that, they seek to charge other lands, acquired in exchange, with a lien for the. sum at which the negroes were estimated in confederate currency. It is evident that they are far more anxious to have equity done unto them than they are to do equity themselves..
Affirmed.