| Pa. | May 15, 1866
The opinion of the court was delivered, May 15th 1866, by
In the Orphans’ Court, he who proceeds against an estate, or the person who represents it, must have an interest immediate or remote. The interest asserted in the petition in this ease is an alleged trust on part of Dr. James Tate, the decedent, for the late John Nicholson, in seventy-five shares of stock in the North American Land Company. The petitioner not contenting himself with a general allegation of Nicholson’s interest, sets forth both the nature and the evidence of the interest, with a view perhaps to obtain an early decision of his right to intervene. The answer of the administratrix of Tate denies the interest of the claimant, and prays a dismission of the bill on this ground. The question is therefore raised whether upon the facts set forth, any interest appears to warrant the proceeding on part of Nicholson’s administrator to compel the administrator of Tate to settle the account demanded of this alleged trust, and also to have her dismissed from her office as a non-resident of the state. It is not necessary to determine the competency of the evidence set forth to support the trust; though it might not be difficult perhaps to show that after three score years and ten, the allotted limit of human life, the facts recited would stand as primary evidence, and if competent would lead to the conclusion that a trust once existed. But passing this without a decision, we are of opinion
It is not a case of express trust contained in the instrument or acknowledged and recognised by the acts or declarations of the trustee. The transfer by Nicholson to Tate, on the 3d of June 1795, carried with it the entire ownership of the stock, leaving in Nicholson no apparent title legal or equitable. It was the evidence of a sale and not of a trust or confidence reposed in Tate or accepted by him. This has so remained for upwards of sixty years, without any assertion of a trust by Nicholson or his representatives, or a recognition of it by Tate or those coming after him. Now, when the flight of two-thirds of a century has carried two generations of men into the grave, it is sought to convert this apparent sale and transfer of title into a special trust in behalf of a party who was neither ignorant nor deceived, and who, from the very facts alleged, knew of it at its inception, was not led to lie by in false security, who never himself asserted the special commission to Dr. Tate, and upon whose estate administration was taken out forty years ago.
Clearly this is no technical continuing trust which equity will enforce regardless of lapse of time ; whether exclusive jurisdiction over it belonged to chancery, or whether a remedy existed at law, the claim is stale and offensive. The delay has been so great and the laches so gross that, whether the case be rested on the analogy of the Statute of Limitations, or upon the principles which govern the administration of equity in relation to remissness and negligence, a chancellor will not lay his grasp upon the fund.
In the nature of the transfer it imported in the very beginning an adverse not a fiduciary ownership, and it would reverse all the ordinary presumptions of title flowing from a great lapse of time, were we without other and stronger facts set forth in the petition to determine that a technical continuing trust now exists, such as we must enforce, without undertaking the labour of a special application to the case.
We think the principles contained in the following decisions abundantly enforce our conclusion: Strimpfler v. Roberts, 6 Harris 298-9; McBarron v. Glass, 6 Casey 133; Brock v. Savage, 7 Id. 410 ; Lyon v. Marclay, 1 Watts 271" court="Pa." date_filed="1832-11-15" href="https://app.midpage.ai/document/lyon-v-marclay-6311092?utm_source=webapp" opinion_id="6311092">1 Watts 271; Finney v. Cochran, 1 W. & S. 118; Zacharias v. Zacharias, 11 Harris 452; Downey v. Garard, 12 Id. 52.
Decree affirmed.