124 Ky. 100 | Ky. Ct. App. | 1906
Affirming.
In July, 1888, James Miller, a wealthy bachelor, and a member of one of the most prominent families in Breckinridge county, died, leaving no will, and his large estate passed by descent to his brothers and sisters and the children of such as were dead, as his only heirs at law. Matthias Miller, one of his brothers, was appointed and qualified as administrator of his estate, and he was also, by writing signed by the heirs at law of the estate of James Miller, deceased, authorized to compromise any and all claims belonging to said estate with the debtors, when, in his judgment, it would be to the best interest of said heirs so to- do. This authority to adjust and compromise claims was given him on March 9, 1889, and he was thereafter, on the 15th day of December. 1891, given a power of attorney by all the heirs of James Miller, deceased, authorizing him “to sell and convey in fee simple, and by deed of general.warranty, for such price and upon such terms of credit, and to such person or persons, as he should think fit, the whole or any part of the lands and real estate that belong, or may hereafter belong, to the estate of James Miller, deceased. ' Said lands and real estate are situated in the counties of Breckinridge, Hancock and Ohio.” Acting under his power'and authority as administrator and agent, Matthias Miller proceeded with the settlement of the estate until 1892, when Huston H. Jolly, on the 20th day of February of that year, sold and conveyed by deed to him, for the sum of $240 cash, his entire interest in and to the estate of James Miller, deceased, which consisted of an undivided one sixty-fourth interest, and is
There is but one question in this case raised by the pleadings which it will be necessary to determine, and that is, is the plea of the statute of limitations interposed by the defendant a bar to plaintiff’s right of recovery! It is the contention of appellee that, immediately upon the execution of the deed by appel lant on February 20, 1892, the statute of limitations began to run, and that upon that date appellee ceased to act as administrator of the estate of his deceased brother for the benefit of appellant, and ceased to act as agent for appellant in the settlement of the estate of James Miller, deceased; and that appellant’s ’cause of action, if he had any, accrued to him at once upon the execution and delivery of the deed by him to his uncle, Matthias Miller, and the payment to him by Matthias Miller of the $240 consideration for said conveyance. Appellant contends with much earnestness and zeal that the statute of limitations did not begin to run against him upon the execution of said deed, and has not yet begun to run against him, and will not begin to run until after Matthias Miller, or James W. Miller, who succeeded him, has made a final and complete settlement of his accounts as administrator of the estate of James Miller, deceased; that Matthias Miller occupies a trust rela ■ tion toward appellant, and that he cannot deal with him to the disadvantage of his cestui que trust; and that the trustee cannot repudiate the trust and put the statute of limitations in force before he has made a
Appellee insists that the sole question for determination is whether or not the trial court erred iri sustaining the demurrer to the petition as amended, and in dismissing the petition upon plaintiff’s failure and refusal to plead further; while appellant contends that, as the entire record — all of the pleadings in the case — is now before this court, the merits of the case should be passed upon and settled by this court. We are of opinion that the contention of appellant is correct; that, the pleadings all being before us, we should pass upon the merits of the questions involved in this suit, and to that end it will be first necessary to determine from the pleadings the character of the trust created by the powers of attorney and the appointment of Matthias Miller as administrator of the estate of his deceased brother. Is the trust created by his appointment and qualification as administrator, and his acceptance of the powers of attorney authorizing him to settle and adjust claims and to sell and dispose of the real estate, a continuing subsisting trust? If not, when did it cease to be such? Appellee contends that it is not, as to appellant, and has not been since the 20th day of February, 1892; that the relationship of trustee and cestui que trust between appellee and appellant ceased absolutely on that date; and that the statute of limitation commenced to run against appellant on that day. Wood on Limitation lays down this rule: “When the trust .is repudiated by clear and nnequivocal acts and words of the trustee, who claims to hold the trust property.as his own, and such repudiation and claim are brought to the beneficiary in such a manner that he is called upon to assert his equitable right, the statute of limitations will begin to run from the time such repudiation and
In the case of Chenault v. Quisenberry, 57 S. W., 234, 22 Ky. Law Rep., 79, this court said that a deed executed by a trustee as trustee, after the property had been conveyed by the cestui que trust to the trustee> was void, because the conveyance of the property by the beneficiary to the trustee revoked the power of attorney under which the trustee became trustee. Under the authority of the rule laid down in the Chenault case, supra, the power of attorney executed by the plaintiff to his uncle Matthias Miller authorizing him to sell the real estate belonging to the estate of his deceased uncle in which he had an, interest, and to settle and adjust debts due and owing
Appellant had no right or. claim to an accounting until he could succeed in having the sale of his interest in his uncle’s estate set aside as a fraudulent transaction. By the terms of his deed he had parted with whatever interest he had in the estate of his uncle James Miller, both real and personal. As long as that deed stands uncanceled, it is a binding contract upon appellant, and he is estopped from claim
The judgment is affirmed.
Petition for rehearing by appellant overruled.