105 Ky. 380 | Ky. Ct. App. | 1899
Lead Opinion
delivered the opinion of the court.
On January 9, 1871, appellant William Blake qualified in the Owsley county court as the guardian of his three infant stepchildren, Gideon, Riley, and Margaret J. Wolfe, the children of Emanuel Wolfe, who had died in the United States army. As the guardian of these children, appellant drew from the United States government a pension amounting to $1,552, the first money, being drawn on the 13th of May, 1872, and the last on the same date in 1878. Riley Wolfe became of age on June 15, 1877; Gideon *on December 15, 1879; and Margaret, on April 29, 1883. This action was brought on January 4, 1893, by Gideon, Riley, and Margaret Wolfe (the last then being Margaret Blake), against appellant, their late guardian, alleging that he had not paid them their money and that he had invested it in a tract of land on which he was then living, and that he had fraudulently had the deed to the land made to himself, his wife, and her children, and not to them. This deed was made on March 7, 1874, and recorded a few months later. It also appears that Margaret, in the year 1879, and soon after her marriage, had brought a similar suit against appellant, as her guardian, which, after some preparation was dismissed, settled, on May 15,1881. The court below held her barred by this consent order of any relief in the case before us, but gave judgment in favor of Gideon Wolfe for $595.66, with interest from December 16, 1874, and in favor of Riley Wolfe for $397.66, with interest from June
It is .insisted in support of the judgment that limitation did not run in appellant’s favor, because he was the trustee of an express trust, and that the case falls within the provision of the statute excepting from its operation “the case of a continuing and subsisting trust.” But, when the wards became of age, the trust of appellant as their guardian terminated, and from that time on the relation of debtor and creditor existed as fully as if there had never been any trust at all. Thus, in Robinson’s Committee v. Elam’s Ex’r, 90 Ky., 300, [lá S. TV., 84], this court held an action by a distributee on an executor’s bond barred after 15 years from the time his cause of action accrued. The court said: “The trusts intended to be embraced by the statute, and to be excepted out of the limitation, are those of an exclusively equitable character, where the trustee has a right to hold the estate, and the cestui que trust has no right to sue and recover it. Where, however, the latter may do so, and forbears to exercise the right, the letter of our statute, as well as the policy of our law, gives the opposing party the right to rely upon the lapse of time. The time, by the terms of the statute, begins to run from the accrual of the cause of action.”
This case has been often approved by this court, and as appellees had a right to sue from the time they became, of age, and this action was not begun within fifteen years after Riley Wolfe was of age, it results, under this well settled rule, that his cause of action was barred whén this suit was filed. See, also, Ky. Stat., Sec. 2521.
Gideon Wolfe came of age about thirteen years before the action was filed, and so was not barred by the fifteen years
The same statute applies to that part of the petition which seeks to subject the tract of land embraced in the deed to appellant and Mrs. Blake and her children. It is alleged that this deed was fraudulently made; but it has been tff record since the year 1874, and the grantees in the deed can not be now devested of their rights. It has often been held by this court that, if ten years are allowed to elapse, the right of the grantee is perfected. Dorsey v.
The proof shows that the appellees live in the neighborhood with the appellant, and have had full opportunity to learn their rights, and bring an action, within the time allowed them by law after they became of age. The great delay in this case is not satisfactorily accounted for, and it is intimated that the action would never have been brought but for bad feeling and outside influences. However this may be, the claim appears to us stale. A court of chancery aids the vigilant and not those who have slept upon their rights; and, taking all of the facts of the case into consideration, we do not think that the appellees have-shown themselves entitled to any relief. They were without a home when appellant married their mother. He got them together, gave them shelter in their weakness, and seems to have reared them as his own children. He has made them to share just like his own children in the tract of land where he now lives. They do not seem to have complained when the facts were fresh and better capable of proof than now, and, having been silent then, we do not think they ought to be heard now. They clearly knew of their guardian’s settlement, and how he claimed the account stood, when they became of age, and in fact long before this. They knew of their sister’s suit to surcharge the settlement, and were consulted in it, but elected to take no action. They knew that provision had been made for them in the deed for the land, and why it was made, and must, after so many years, be held to have acquiesced in that provision; for we are constrained to believe that, after their sister’s suit and the lapse of so many years, they could not have failed to under
Rehearing
Response to petition for rehearing was delivered by
The object of having settlements made by fiduciaries in the county court is to make a statement of their accounts of record, and these settlements are an idle form, if the judgments of the county court confirming them may be wholly disregarded. So it has been uniformly held in this State that the party complaining of such a settlement must not only surcharge it, but allege in his petition specifically the errors relied on. Tanner v. Skinner, 11 Bush, 129; Allen v. Westfall, 8 Ky. Law Rep., 63; Kirtley v. Jameson, 6 Ky. Law Rep., 740; Fielder v. Harbison, 93 Ky., 482, [20 S. W., 508]. The appellee, therefore, can not get along in this action, if he has lost his right to surcharge the guardian’s settlement.
It is earnestly argued that as to Gideon Wolfe, at least, there should be a recovery, as it appears the guardian collected some money for him after his settlement with the county court. There would be force in this contention, if it did not appear, also, that the guardian has paid over to his ward, since that settlement, as much as the amount so collected, including what was in his hands, as shown by it. The petition is overruled.