98 Me. 288 | Me. | 1903
The plaintiff is the child and only living heir of Samson Hart and his wife Hannah Hart. Samson died June 28, 1898, and Hannah died November 3, 1880. In August, 1881, Samson married Mary Ann Bickford, a widow with two children. December 3, 1888, Samson Hart held the legal title to four parcels of land, one of which was conveyed to him by Isaac H. Lancey,
In this bill plaintiff claims that this provision created a trust in her favor, which is charged upon the lands mortgaged. She seeks only to have it charged upon the Lancey lot, and makes no claim upon the other three lots. The defendant Frost now holds the title to the Lancey lot.
January 15, 1890, Bickford exchanged the Lancey lot with Cora E. Walker for a lot of hers. Both lots being regarded of equal value, the exchange was even. It was effected by deed from Bickford to Walker of the Lancey lot, and a deed from Walker to him of what will hereafter be called the Walker lot. Samson Hart and his wife at the same time released to Walker their interest in the Lancey lot under the Bickford mortgage, and took a mortgage from Bickford on the Walker lot to secure the performance of his bond for maintenance.
February 28, 1890, this plaintiff brought a bill in equity against Samson Hart, Angie A. Grant, the daughter of his second wife, and Eugene Bickford, brother to Angie. Samson in January, 1888, had conveyed to Angie Grant a lot of land known as the Heagan lot. In her bill she claimed that all five parcels of land were purchased with money of her mother, Hannah, and that her father held them all in trust for Hannah, and upon her death, in trust for this plaintiff. She alleged in her bill that Samson and Bickford had exchanged the Lancey lot for the Walker lot; that the exchange was “an even one,” and that the trust in her favor “instantly attached” to the Walker
If she had a cestui que trust interest in the Lancey lot, when it was exchanged for the Walker lot, she had the option to charge the Lancey lot or the Walker lot with the trust. She elected to look to the Walker lot, of the value of about two thousand dollars, and thereby waived and released her claim on the Lancey lot. Having made her election, with full knowledge of the facts, she is bound by it, and is estopped to assert a claim upon the Lancey lot. Perry on Trusts, §§ 835 & 836; Oliver v. Piatt, 3 How. 401; Buford v. Adair, 43 W. Va. 214; May v. LeClaire, 11 Wall. 236; Proctor v. Rand, 94 Maine, 313. She cannot now repudiate that election and revive her claim against the Lancey lot. Neither of these defendants ever had any interest in the Walker lot, nor does the plaintiff proceed against it in this bill. It follows that the bill cannot be sustained.
Although these considerations dispose of the present suit, it may be of service to examine another question that may arise, as to any claim upon the Walker lot. Whether the provision in the condition clause of Bickford’s mortgage to Samson Hart, was sufficient to create a trust for this plaintiff chargeable upon all the four lots in that mortgage, which admits of doubt, it is not necessary to consider. It is well settled, that to perfect such a trust, it- must be accepted by the cestui que trust, when knowlege of its existence is received by the beneficiary. In the absence of evidence to the contrary, acceptance is presumed, where it is for the benefit of the cestui, but this pi’esumption may be overcome. Perry on Trusts, § 98; Moses v. Murgatroyd, 1 Johns. Ch. 119, 7 Am. Dec. 478; Shepherd v. McEvers, 4 Johns. Ch. 136, 8 Am. Dec. 561; Hosford v. Merwin, 5 Barb. 51; Wetzel v. Chapin, 3 Bradf. 391.
It is very clear in this case that the plaintiff not only did not accept the trust as to the six hundred dollars,, but repudiated jt. In her
Bill dismissed with costs.