228 F. 345 | D. Del. | 1915
On a former occasion a demurrer to the bill in this case was overruled (164 Fed. 471), and since then the evidence has been taken, consisting of voluminous testimony, many exhibits and sundry stipulations, and the case has "been twice elaborately argued by counsel on both sides. During the progress of the suit numerous amendments of the pleadings, both as to parties and to subject-matter, have been made. The complainants in the bill in its final form are Catharine P. Mathieson and George F. Mathieson, her husband. Mrs. Mathieson is a grandchild of Thomas Jamison, late of Red Lion Hundred, Delaware, who made his will June 3, 1864, and died in December of the same year,- and she and her husband have prosecuted the suit for the enforcement of alleged rights and interests claimed to be vested in her under that will. The defendants are Thomas J. Craven, as executor of and trustee tinder the will, Eliza C. Green, Lawrence Lofland and Martha Lolland, John F. Biggs, Clarence Jamison (of Delaware), Charles Jamison, James Sartin, Raymond Jamison, Albert Jamison, Florence Jamison, Clarence Jamison (of Pennsylvania), Helen Grebb, Oliver V. Jamison and Laura Jami-
“I order and direct the property on which I now reside called ‘Damascus/ situated in Red Dion Hundred aforesaid, to be sold as soon after my decease as conveniently may be without sacrifice, and I hereby authorize and empower my executor to sell the same at public or private sale, for the best price or prices which can be gotten for the same, and to mate, execute and deliver to the purchaser good and sufficient deeds of conveyance therefor.
“I give, devise and bequeath unto my said executor and the guardian hereinafter named and appointed for my minor children, all my estate real and personal not hereinbefore otherwise disposed of, to have and to hold the same unto them, or the survivor of them, the survivors’ heirs and assigns, in trust nevertheless for the uses, intents and purposes hereinafter set forth and declared. ■
“To have and to hold the farm known as the ‘Jamison Corner Farm,’ containing about two hundred acres, situated in St. Georges Hundred, in trust to raise thereout the sum of four thousand dollars in such manner as they may deem most advantageous, or to make the same a charge upon the land, the principal and interest thereon payable to my said trustees for purposes hereinafter mentioned, subject to this charge to suffer my son Albert Jamison to use, occupy, rent and receive the rents, issues and profits Of said farm during the term of his' natural life, for his proper use and benefit. In case of the death of the said Albert leaving a child or children, or the issue of such, remainder to said child or children or the issue of any such child or children, their heirs and assigns free and discharged from the aforesaid trust. In case of the death- of the said Albert without leaving issue, then remainder over to my, sons Edgar, Clarence and Oliver, and their issue, the heirs and assigns of such issue, subject to the same conditions and limitations as their own shares are respectively subject to under this will. * * *
“To have and to hold the farm known as the ‘Capelle Farm’ containing about two hundred and twelve acres, situated in Red Dion Hundred, and the farm known as the ‘Homestead Farm,’ containing about two hundred and thirty acres, situated in St. Georges Hundred aforesaid, in trust, to rent the same to good and careful tenants at the best cash or share rents attainable, as in their judgments sijall be most advantageous, and to collect, expend and invest the same as hereinafter provided, until the majority of my youngest son who shall live to attain the age of twenty-one years, then to raise out of or charge upon the said farms respectively, such sum or sums as shall be necessary -to make equal, the shares of my sons Edgar, Clarence and Oliver as hereinafter provided, and subject to such charge and conditions.
“To permit and suffer my son Clarence to use, occupy and rent and to receive the rents, issues and profits of the said ‘Capelle Farm’ during the term of his natural life for his proper use and benefit, and in case of the death of the said Clarence leaving a child or children, or the issue of such, remainder to such child or children or the issue of such, their heirs and assigns, free and discharged from the aforesaid trust.
“To permit and suffer my son Oliver to use, occupy and rent, and to receive the rents, issues and profits, of the said ‘Homestead Farm’ during the term*349 of his natural life, for his proper use and benefit, and in case of the death of the said Oliver leaving a child or children, or the issue of such, remainder to such child or children or the issue of such, their heirs and assigns, free and discharged from the aforesaid trust.
“To invest all the rest and residue of my estate, not herein otherwise disposed of, in bonds and mortgages as aforesaid, interest payable semi-annually, and keep the same so invested until the majority of my youngest son who shall live to attain the age of twenty-one years; whereupon, I desire my tras-tees aforesaid to have the said ‘Oapelle Farm’ and the said ‘Homestead Farm’ valued at their just and true value in money by three substantial men of the neighborhood, and that to such valuation the trustees shall add the four thousand dollars and all Interest accrued thereon which hereinbefore is charged upon the ‘Jamison Corner Farm,’ and all the rest and residue of my estate invested as first directed in this Item, and also any other legacies or devises to which my said sons Edgar, Clarence and Oliver may become entitled, and the aggregate sum. thus ascertained to apportion in equal shares among my sons Edgar, Clarence and Oliver, and their issue, the issue in all eases taking their parents’ share. In the said apportionment my said son Clarence to take the said ‘Capelle Farm’ with such incumbrances or additions as may be necessary to equalize the shares of the said Edgar, Clarence and Oliver, and the said Oliver to take the ‘Homestead Farm’ with such like incumbrance or addition, but the share of the said Edgar shall be in money, invested in good bonds and mortgages as aforesaid, the interest payable to him, after such apportionment, semi-annually during his natural life and from and immediately after his death the principal and all interest accrued thereon payable to his child or children or the Issue of. such.
“The rents and profits arising from the Capelle and Homestead farms and the ini crest of all sums invested as in. this Item prescribed, and so much thereof as shall be necessary, shall be expended by said guardian in the maintenance and education of my said sons Edgar, Clarence and Oliver.
“And the residue if any invested for their benefit, first deducting yearly a sum not exceeding one hundred and fifty dollars, to be expended on each of the said farms to keep the same productive and in good condition.
“In ease of the death of any of my said sons Edgar, Clarence and Oliver without leaving any child or children or the issue of such, the share of the one so dying shall go to the survivor or survivors and the issue of such as may be deceased, subject „o the same conditions and limitations as their‘own shares respectively hereinbefore designated.
“It is my will and I hereby appoint and request my esteemed friend shall have the guardianship of any child or children living at my decease, during the minority of such; and I urge that the utmost care be given to their moral training and education.
“1 nominate and appoint my valued friend Thomas J. Craven my exccuior, and the said executor and guardian, trustee to effect the trusts hereinbefore» set forth and declared.”
Letters testamentary on the above will were granted July 27, 1866, to Craven, therein named as executor and trustee, who forthwith duly qualified and undertook the administration of the estate, and accepted as sole trustee the trusts imposed by the will; the testator having failed to fill the blank left in the will for the name of the guardian who was to be co-trustee with Craven. All the debts and funeral expenses of the testator and all legacies, pecuniary charges or demands mentioned in his will, except that for the benefit of Edgar Jamison and his surviving children or issue, have been fully paid and satisfied. Edgar died May 1, 1886, leaving to survive him two minor daughters, Catharine, born Eebruary 2, 18?8, who married George F. Mathie-son, and is one of the complainants, and Vesta, born December 17, 1879, who married James D. Bastían, and is still living. Oliver, the
"To invest all the rest and. residue of my estate, not herein otherwise disposed of, in bonds and mortgages as aforesaid, interest payable semi-annually, and keep the same' so invested until the majority of my youngest son who shall live to attain the age of twenty-one years; whereupon, I desire my trustees aforesaid to have the said ‘Capelle Farm’ and the said ‘Homestead Farm’ valued at their just and true value in money by three substantial men of the neighborhood, and that to such valuation the trustees shall add the $4,-000 and all interest accrued thereon which hereinbefore is charged upon the ‘Jamison Corner Farm,’ and all the rest and residue of my estate invested as first directed in this Item, and also any other legacies or devises to which my said sons, Edgar, Clarence and Oliver may become entitled, and the aggregate sum thus ascertained to apportion in equal shares among my sons, Edgar, Clarence and Oliver, and their issue, the issue in all cases taking their parent’s share. In the said apportionment my said son Clarence to take the said ‘Capelle Farm’ with such incumbrances or additions as may be necessary to equalize the shares of the said Edgar, Clarence and Oliver, and the said Oliver to take the ‘Homestead Farm’ with such like incumbrance or addition, but the share of the said Edgar shall be in- money invested in good bonds and mortgages as aforesaid, the interest payable to him, after such apportionment, semi-annually during his natural life and from and immediately after his death, the principal and all interest accrued thereon, payable to his child or children or the issue of such.”
Albert having died before his father without child or issue, as before stated, the Corner farm passed under the will ft> Craven as trustee and was held by him on trusts similar to those above quoted relating to the Capelle and Homestead farms. This conclusion is in perfect harmony with the broad and expressed intention of the testator, that the shares of Edgar, Clarence and Oliver should be equal, and that Edgar’s share should consist wholly of personalty. It was the purpose of the testator that, in the above mentioned event, his three remaining sons should equally have the benefit of the Corner farm and this could be as easily and fully effected by its being helddn trust for Clarence and Oliver equally as in any other manner. Being “subject to the same conditions and limitations” as tire shares of the three other sons, it would enter into the basis of the appraisement directed in the will, and Edgar, Clarence and Oliver would, under the provision for the adjustment and equalization of shares equally have the benefit of that farm. It could lead to no difficulty or embarrassment. As Clarence and Oliver were to take the Capelle and Homestead farms respectively subject to such adjustment and equalization, so, likewise subject, they would together take in equal shares the Corner farm. And Edgar through such adjustment would have his equal third share
Oliver, the youngest son, having attained his majority May 1, 1878, it was Craven’s duty under the trust imposed upon him, which he had accepted, as soon as practicable thereafter to have an appraisement made as provided for in the will. It is contended by the defendants that such appraisement was a condition precedent to the existence of any charge on the farms in favor of Edgar Jamison and his surviving children or issue, and that no such appraisement was made. If the trustee had omitted to cause it to be made he would have been derelict in the _discharge of his duly under the trust. Careful examination of the evidence, notwithstanding some minor inconsistencies and contradictions, has .satisfied me beyond all reasonable doubt that the trustee caused an appraisement to he made pursuant to the provisions of the will. Oliver, having attained his majority more than six months previously, joined, November 18, 1878, with Clarence and Edgar in a written request to the trustee in which they said:
“In accordance with the provisions of the will of our Father, Thomas Jamison, Dec’ll, we have to request yon to authorize John P. Hudson, Esq., William M. Stuckert, Esq., and Purnell J. Lynch, Esq., three substantial men of the neighborhood, to place a valuation upon the three farms, viz., the*354 ‘Capelle Farm,’ the ‘Homestead Farm’ and the ‘Jamison Corner Farm,’ and to apportion the same as required by the terms of said will.”
Craven, in his amended answer as trustee, under oath states: •
“After refreshing his recollection by examination of certain papers in his possession, that to the best of his recollection, information and belief, between the date of November 18th, 1878, and the 8th day of August, A* D. 1879, being after the time the said Oliver V. Jamison attained his majority and became the age of twenty-one years, upon the joint request of Clarence Jamison, Oliver V. Jamison and Edgar Jamison, this defendant appointed William M. Stuckert, Purnell J. Lynch and- John P. Hudson, three substantial men of the neighborhood, to appraise the Capelle Farm, the Homestead Farm and the Jamison Corner Farm, lately of Thomas Jamison, deceased, and that said appraisers did, between the dates above mentioned, appraise said three farms respectively at their just and true value in money.” •
Craven testified to the effect that he, after Oliver attained his majority, at the written request of Edgar, Clarence and Oliver above quoted, appointed Stuckert, Lynch and Hudson to appraise the farms as provided in the will; that he showed the written request to one or two of the three men whom he had appointed and explained to them why he wanted them to act as appraisers; and that the two papers, Complainants’ Exhibits 1 and 17, “show that I must have appointed these men, and it shows they made an appraisement,’’ but that he does not know “what became of that appraisement.” Exhibit 17 is the written request for the appointment of appraisers, and Exhibit 1 is a paper in the handwriting of Craven, under the hands and seals of Craven and Edgar, dated August 8, 1879, in which Craven states :
“I hereby give up the control and management of the Jamison Corner Farm belonging to the Estate of Thomas Jamison (deceased) and by and with the consent of Edgar Jamison appoint Oliver V. Jamison to rent and manage and receive the rents, profits, &'e. of the same and he to pay Edgar Jamison the sums due and that may become due him as interest from the appraisement of the real estate of the Jamison estate.”
Edgar, August 8, 1879, signed a paper, attested by Richard T. Cann (Defendants’ Exhibit D), in which he said:
“I hereby release Thomas J. Craven as trustee of the Jamison estate from all claim or claims of interest that is due or may become due on the one-third part of the appraisement of my father’s est.”
Purnal J. Lynch, eighty years old when giving his evidence, testified:
“Q. Did you and Mr. William M. Stuckert and Mr, John P. Hudson, at Mr. Craven’s request, appraise the three farms left by Thomas Jamison at the time of his death? (Objection.) A. We agreed upon a price on each farm, to the best of my knowledge. Q. Who requested you to put a price on these farms? A. Mr. Craven asked me to meet there and fix a price. * * * Q. What did you three men do after Mr. Craven asked you to fix a price? A. We agreed upon a price, I think. Q.'What was the price, or valuation, or appraisement fixed by you on the Homestead Farm? A. I think it was twenty-two thousand dollars. Q. What was the price, or valuation, or appraisement fixed by you three men on the Capelle Farm? A. Fourteen thousand dollars, to the best of my knowledge. Q. What was the price, or valuation, or appraisement, which you three men fixed for the Jamison Corner Farm, if you so fixed it? A. Twelve thousand dollars. Q. What was the total valuation put upon the three farms by you three men? A. Forty-eight thousand dollars. * * * X. After you appraised the farms,*355 dill you do anything more? A. I think we put the price on a piece oí paper and give it to Tilomas Craven, or just made a little memorandum of it, that is, Mr. Graven did. * * * X. When is the next time, after the time when you appraised them, that you thought anything about, or tried to think anything about, the transaction? A. I never tried to think about it. I didn’t know and 1 couldn’t tell you anything about it. X forgot all about it until they mentioned it to me. I had forgotten it entirely until it came to my memory again. X know now that I recollect meeting Thomas Craven there. * * X. Didn’t you talk with Mr. Craven about it? A. Yes, sir; X talked with Mr. Craven. X. Irately, X mean? A. Two years ago. * * * X. At that time, Mr. Lynch, when you met Mr. Craven here, did you then remember that you had put a valuation on the farms? A. I told him I had a slight remembrance of it. * * * X. After Evans talked with yon, how-soon was it that you began to remember the valuations? A. I never once sludied much about it until after Mr. Craven asked me to meet Mm, and 1 told Mr. Craven then that I didn’t believe I knew much about it, and I didn’t give him much satisfaction; but X got to thinking about it, thinking it over, and -it came back to me. * * * X. Didn’t you talk over with somebody, so as to bring it back to your mind, this appraisement? A. No, sir. X. How' did you remember the figures? A. They came to my mind. They came to my mind and I remembered about going there and Tilomas Craven asking me to go there. * * * X. In your examination in chief you said that you three men agreed on a price for each farm, ‘I think.’ Vou used (he words ‘I think’? A. Yes, sir. X. Are you positive about it? A. J should say, to the best of my knowledge. That is all that I can say. No. X wouldn’t say positively; X wouldn’t. X..Haven’t you talked it over with somebody lately to bring back to your mind these figures? A. Nobody knew anything about it. 1 didn’t know anything about it. No, sir; not a word to anybody. 1 saw nobody to talk to about it. No, it came back to me, I thought a great deal over it, got to studying about it, laying at nights studying about it. * * * X. When did it first come to your mind that you did make an appraisement? A. I don’t know. I got to studying about it after I met Mr. Craven here, but I don’t know when it was done. X. When, to the best of your knowledge, was it you met Mr. Craven here? A. It lias been two years ago anyhow, X think. I have never been here since, I know. * * !! X. You, at first, told Mr. J. Frank Biggs that you didn’t appraise them? A. And I told Tom Craven so, too. I told you aw-hile ago I intended to write Vo Tom afterwards, but I didn’t. I thought I would see him at some time and tell him if it was very necessary. « * * It. Q. Why did you intend, and for what purpose did you intend, to write to Mr. Craven? (Objection.) A. Because I had told him I didn’t know- anything about it. It. Q. After you had told him that you knew nothing about it did you recollect the circumstances before you saw me IMr. Marvel] in the fall of 1911? A. Yes, sir. X intended to write. X wanted to explain it, to rectify the mistake 1 made. * < * K. Q. What mistake? A. X told him X didn’t ever have' anything to do with it, didn't appraise the property, that I didn’t know anything about it, and X wanted to tell him that 1 had had.”
The manner in which Lynch, notwithstanding his advanced age, stood the long and wearying cross-examination to which he was subjected, affords persuasive evidence oí his intelligence and truthfulness. During his cross-examination he was confronted with what purported to be an affidavit made by him before Charles K. Lloyd, notary public, September 2, 1908, stating that he did “not recollect of ever appraising or putting a valuation upon the ‘Capelle Farin’ or ‘Homestead Farin’ or any other real estate devised under the last will and testament of Thomas Jamison,” and that “to the best of his knowledge and belief,1 the said farms and real estate never were appraised or valued by him; and that lie never acted in the capacity of appraiser of, or put a value
“Q. DM Thomas J. Graven, as executor and trustee under your father’s will, have the farms appraised and a valuation placed upon them after you became twenty-one years of age? (Objection.) A. He did. Q. Who were the appraisers selected by Thomas J. Graven to place that valuation? A. William M. Stuckert, John P. Hudson and Purnal J. Lynch. Q. What valuation, Mr. Jamison, if you know, did they place upon the Homestead Farm? (Objection.) A. Twenty-two thousand dollars. * * * Q. What valuation did they place upon the Capelle farm? (Objection.) A. Fourteen thousand dollars. * * * Q. What valuation did they place upon the Jamison Corner farm? (Objection.) A. Twelve thousand dollars. Q. When was this done? (Objection.) A. Soon after I became of age. * * * Q. Were Purnal J. Lynch, William M. Stuckert or William H. Stuckert, whichever you have it, and John P. Hudson, substantial men of the. neighborhood at that time? A. They were considered three of the best men in the neighborhood. Q. They lived in the locality of the farms? A. Yes, sir; all their lives, I guess. Q. After the appraisement was made and the valuations were placed upon the farms, was the interest coming to Edgar, under your father’s will, paid to Edgar after that time? (Objection.) A. Yes, sir. * * * Q. Mr. Jamison, was the interest paid to Edgar on his share as found by the valuation and apportionment? A. It was.”
Oliver’s testimony as to the appraisement of the farms has been assailed or criticized because he stated on cross-examination that he was not present with Stuckert, Lynch and Hudson at the time he says they made the appraisement and did not see it actually made. But such objection to the evidence given by him is not sufficient to avail against his positive statement that an appraisement was made by the three men named resulting in a valuation of $22,000 for the Homestead farm, $14,000 for the Capelle farm, and $12,000 for the Corner farm;
If Albert had lived the $4,000 charged upon the Corner farm would have been added to the amount of the appraisement of the Homestead and Capelle farms for the .purpose of the equalization and apportionment of the shares of Edgar, Clarence and Oliver. But the above sum of $4,000 was not so added, for the reason that owing to Albert’s death during the life-time of his father the Comer farm was included in the appraisement, and thus it was immaterial whether that farm should be included without the charge upon it, on the one hand, or, on the other, subject to such charge, as in the latter case the amount of the charge would necessarily be added to the value of the farm less the charge.
•‘T gire and bequeath to my said wife, Ellen M. Colton, all of the estate, real and personal, of which I shall die seized, possessed, or entitled to. 1 recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in. her judgment will he best.”
It was held, reversing the lower court, that under the above provision there was a valid and enforceable trust in favor of the testator’s mother and sister, although the language was a request to his wife, who was the devisee and legatee “to make such gift and provision fot them as in her judgment will be best,” and stated its conclusion as follows :
“On the whole, therefore, onr conclusion is that each of the complainants in these bills ¡.the mother and sister of the testator] is entitled to take a beneficial interest under the will of David D. Colton, to the extent, out of the estate given by Mm to Ms wife, of a permanent provision for them during their respective lives, suitable and sufficient for their care and protection, having regard to their condition and necessities, and the amount and value of the fund from which it must come. It will be the duty of the court to ascertain after proper inquiry, and thereupon to determine and declare, what provision will be suitable and best under the circumstances, and ail particulars and details for securing and paying it.”
In the course of the opinion the court said:
“The object, therefore, of a judicial interpretation of a will is to ascertain the intention of the tpstalor, according to the meaning of the words he has*360 used, deduced from a consideration of the whole instrument and a comparison of its various parts in the light of the situation and circumstances which surrounded the testator when the instrument was framed. These rules of construction, indeed, apply to every written instrument, although in deeds and some other formal documents the long usage of the law has, in certain eases, required the use of technical words and phrases to accomplish particular effects. No technical language, however, is necessary to the creation of a trust, either hy deed or hy will. It is not necessary to use the words ‘upon trust’ or ‘trustee,’ if the creation of a trust is otherwise sufficiently evident. If it appear to he the intention of the parties from the whole instrument creating it that the property conveyed is to be held or dealt with for the benefit of another, a court of equity will affix to it the character of a trust, and impose corresponding duties upon the party Teceiving the title, if it be capable of lawful enforcement. No general rule can be stated that will determine when a conveyance will carry with it the whole beneficial interest, and when it will be construed to create a trust; but the intention is to be gathered in each case from the general purpose and scope of the instrument.”
It is unnecessary to multiply authorities on this point. Colton v. Colton has often been cited with approval, but never, so far as I am aware, questioned or criticized by the Supreme Court. Nor have the principles of testamentary construction there enunciated failed of universal acceptance. But whatever may. be thought of the sufficiency of the grounds disclosed in that case to support a trust, as distinguished from a discretionary power or an expression of mere hope or desire, alj reasonable question is excluded' here, as the direction to raise money out of the land or charge the same thereon is purely mandatory. In view of the form of language before the Supreme Court the complainants there obviously were in a less favorable position than the complainants here with respect to securing a judicial establishment of a trust.
The testator intended that in the fund provided for by him for the benefit of Edgar and his children or issue, Edgar should have a life interest and his surviving children or issue should on his death take absolutely the corpus or capital of the fund. The defendants, however, contend that an exclusive and absolute right to the fund vested in Edgar alone; that he executed a release to Craven as executor and trustee December 15, 1879, from all claims, suits and demands relating to the testator’s estate, reciting that Craven had “fully accounted for and paid over all of the said estate to the parties entitled to receive the same, according to the provisions of the said will”; and that the complainants have no right or interest whatsoever in the charge, if one ever existed. In support of their contention the defendants have referred to Shelley’s Case, and to the rule, that although that case bears upon estates of freehold and has no application whatever to personal chattels or estate, where personal property is bequeathed in language which if applied mutatis mutandis to real estate would expressly or by implication create an estate tail, it vests absolutely in the person who would be the immediate donee in tail and devolves, upon his death, upon his personal representative, and not upon his heir in tail (2 Jarm. Wills, 348), and to the provision in the will that “in case of the death of' any of my said sons Edgar, Clarence and Oliver without leaving any child or children or the issue of such, the share of the one so dying shall go to the survivor or survivors,
“Tlio sliare oí the said Edgar shall ho in money invested in good bonds and mortgages as aforesaid, the interest payable to him, after such apportionment semi-annually during his natural life and from and immediately after his death the principal and all interest accrued thereon payable to his child or children or the issue of such.”
The general limitation over in case of the death of any of the testator’s sons without leaving children or issue, above mentioned, cannot do away with the fact that there was an active trust during Edgar’s life-time. It seems clear that Edgar was to have a life interest in the fund, and his children were to take by way of executory bequest upon his death. State v. Warrington’s Ex’r, 4 Har. (Del.) 55; Jones v. Rees, 6 Pennewill (Del.) 504, 69 Atl. 785, 16 L. R. A. (N. S.) 734; Gross v. Sheeler, 7 Houst. (Del.) 280, 31 Atl. 812. The trust for raising or charging the fund was one of which not only Edgar but his surviving children or issue were the beneficiaries. The right of his children on his death to receive the fund ascertained by the ap-praisement representing his share of the testator’s estate was not derived from Edgar, hut directly from the testator. The latter intended that the income of that fund accruing during the lifetime of Edgar should be received and enjoyed by him, but he provided that the principal should on his death go to his surviving children or issue absolutely and free from any trust. This was the testator’s plain, unmistakable intent as disclosed by the terms of the will. While Edgar might enjoy or otherwise dispose of his life interest in the fund, no act, consent or omission on his part, however meritorious his intent, could deprive his children of the bounty provided for them by their grandfather.
Section 17 of chapter 96 of the Revised Code, entitled “Of the Orphans’ Court,” providing as follows:
“Sec. 17. The court may direct a guardian to expend a specified sum in tile maintenance and education of his ward, or the repair, or improvement of his real estate; and may also direct such portion of the wood, or timber, growing upon the land of the ward as may not be necessary for the use of the same, to he cut and sold for the same purpose. Without such directions, a guardian shall not be allowed to exceed the clear income of the ward’s estate.”
And section 2 of chapter 78 of the Revised Code, entitled “Of Guardians and Wards,” providing, among other things, as follows:
“Sec. 2. A guardian shall have the care of his ward’s person, and the possession and management of his real and personal property; and shall have authority * * * to sell personal property of the war'd of a perishable nature ; and also, by leave of the Orphans’ Court, to sell any other property.”
Authority “to sell any other property” in this connection is restricted to any other property of the ward. Edgar, Clarence and Oliver had not, nor had any of them, either at law or in equity, any right or interest in or claim to the principal of the fund which the testator intended and provided should go to the surviving children or issue of Edgar Jamison. Under the will neither Clarence nor Oliver had any right to the income of that fund during the life of Edgar, for such income was given to him, and not to them, during his natural life; and equally, neither Edgar Jamison nor either of his two brothers
“Their title to the subject of the gift is as perfect now as though the right to it had been cast upon them by the statute of distribution, but they have no right to present payment; on the contrary, the testatrix has very plainly said that they shall not be paid now, but at a future time. The question is one of power. Has the court power to direct the payment of these legacies in advance of the time fixed by the will? As a general rule, courts are just as much bound by the terms of a will as are the beneficiaries under it — it is a law unto them as well as unto the legatees. * * * The source of the power it is easy to trace. It is found in the fact that the infant is the absolute owner of the property, no other person having either a present or prospective legal interest in it,” &e.
If the Orphans’ Court could not have made a valid order for the mortgaging in fee of the farms in such manner that they could be sold under the mortgage free and discharged of the trust or charge in favor of the surviving children or issue of Edgar, a fortiori the Chancellor lacked ■ that power in the absence of authority in that behalf conferred by the will. The proviso to section 1, chapter 95 of the Revised Code, entitled “Of the Court of Chancery,” conferring jurisdiction upon that court, declares, among other things, that “the Chancellor shall not have power to determine any matter wherein sufficient remedy may be had by common law, or statute, before any other court, or jurisdiction, of this state.” Jurisdiction over the application of minors’ property to their maintenance and education is, in the absence of a valid trust to that end, committed by statute to the Orphans’ Court, and hence does not fall within the jurisdiction of chancery. The latter court “could not. order a sale for the purpose of paying the debts; there being for this a provision, made by statute in another jurisdiction, the Orphans’ Court,” &c. Rambo, Ex’r, v. Rumer, 4 Del. Ch. 9, 15. So, for precisely the same reason, in the absence of a provision in the will authorizing it, the Court of Chancery had no power to direct the sale or disposition of any portion of the rents and profits or corpus of the farms or any interest therein for the education and maintenance of the minor sons of the testator. From these considerations it follows that whatever power the Chancellor had to make an order for the application of the trust estate or its income to the maintenance or education of Edgar, Clarence and Oliver, or any of them, originated in and was restricted by the terms of the trust ere-
The trustee having procured the order of February 20, 1874, executed without authority, April 10, 1874, to Bently Worth a mortgage in fee covering the three farms, which only some four years after-wards were appraised and valued at $48,000, in the aggregate, to secure the payment of the sum of $1,200 mentioned in the order, in three years, with interest payable semi annually. There were some peculiar or unusual incidents connected with the Worth mortgage transaction. Action was brought on it by Worth April 26, 1880, against Craven as trustee, and the defendant failing to defend or appear in the suit judgment was obtained May.31, 1880, for $1,200, together with interest from October 12, 1879. From this it would appear that the semi-annual payment of interest which fell due last before the bringing of the suit had been paid. Craven, who removed to New Jersey at the. beginning of February, 1880, states that he was not served with process
Much reliance is placed by the defendants upon the case of Jami-son v. McWhorter, 7 Houst. (Del.) 242, 31 Atl. 517, decided June 3, 1885. It was a “case stated on questions reserved by the Superior Court for New Castle County.” The action was brought upon an agreement between Clarence and Leontiue J. McWhorter, whose brother married one of Clarence’s sisters, for the sale and conveyance of a part of the Capelle farm by the former to McWhorter. McWhor-ter refused performance on his part an the ground of insufficiency of title. The case is incorrectly reported; for it is made to appear that Judge Houston, who delivered the opinion of the court, dissented, and that Chief Justice Comegys, who dissented, delivered the opinion of the court; and it also appears that there is no syllabus representing the opinion of the court, and the only printed syllabus represents the dissenting opinion of the Chief Justice. Nowhere in the case is anything said touching the effect of the provision in the will directing an appraisement of the farms. It appears, however, from the report that the counsel for the plaintiff made the statement that it was “admitted that the trustee has performed the duties specifically enjoined upon him”; and that “the trustees took the estate to manage until the majority of- the youngest child, then to raise a charge upon the same for the purpose of equalizing the property,” etc.; and that “the youngest child came of age May, A. D. 1878”; and that “it is confidently assumed that when the youngest child arrived at majority, and the
“In the view which I have taken of the question already considered and disposed of by me, it is not for me to enter into the consideration of the remaining question as to the title conferred on the purchaser by the sale under the mortgage given by the trustee pursuant to the order of the Chancellor, but if it were necessary for me to consider and decide that I should be obliged to hold under the facts and circumstances of this case that the mortgagee had a legal right to execution and sale on the mortgage at any time after the failure of the trustee for three years to pay it, and being seized as such of the legal estate in the premises when he so mortgaged them by the authority of the Chancellor, the purchaser took the legal title to them at the Hberiff’s sale upon it.”
This expression of the learned judge was purely dictum. He expressly refrains from cleciding the point, although he indicates what his opinion would be “if it were necessary for me to consider and decide.” The case could not have been decided on the two grounds as they were mutually exclusive of each other and could by no possibility co-exist. If the sheriff’s sale under the Worth mortgage was effectual it conveyed a fee simple title to the grantees and there could have been no question of an estate tail left for the decision of the court. The fact that the court decided there was an estate tail excludes all idea that there was a fee simple title under the sheriff’s sale. As opposed to the dictum above referred to is the language of the Chief Justice who said:
“With respect to the question of title acquired, by Clarence Jamison under the sale by the sheriff in execution of the mortgage made by the trustee under the order of the court of chancery of New Castle County — there does not appear to be in the will of the testator any authority to make a mortgage of the premises to raise money for the maintenance and education of the testator’s sons; nor was there any, as it appears to me, in the said court to make such order. The whole proceedings for sale of the Capelle Farm, therefore, apirear to have been without authority.”
The ground of the decision appears on its face. It was that “under the provisions of the will of Thomas Jamison, Clarence Jamison as devisee therein took an estate tail in the premises devised in trust for him.” This of necessity refutes the contention that the decision was based in whole or in part upon the ground that the sheriff’s sale under the Worth mortgage conveyed the fee or had any efficacy. After the above decision was made the action of Edgar, Clarence and Oliver with respect to the transmission of title to the three farms was predicated solely upon the assumption that they were tenants in fee tail. They and their wives executed June 29, 1885, a deed to John F. Biggs
“Tu this class oí cases in the English courts the doctrine oí Shelley’s Case is applied unless there are circumstances which clearly take the devise out.of of lhat rule. Every doubt is resolved in favor of its application. Here, we think, the tendency should he otherwise.”
But whatever may be thought of the soundness of the holding in Jamison v. McWhorter, it is wholly unimportant so far as the rights of the surviving children of Edgar are concerned whether Clarence
It is contended by the defendants that on the assumption that Catha-rine and Vesta had a right on the death of Edgar to proceed for the enforcement of their claim of $16,000, there has been such laches on their part as to bar any equitable remedy. But on careful consideration of the evidence I am unable to reach such a conclusion. Until within two years next before the bringing of this suit they were in total ignorance of their rights under the will of their grandfather and the appraisement of the farms made pursuant thereto; nor until that time had either of them constructive notice of those rights or any in
“Wilmington, Del., Oct. 20, 1904.
“Mrs. Vesta Jamison Bastian
“809 Buttonwood St. PMla.
“Dear Madam:
“I am sorry not to liave been at my office when you called. Please find inclosed herewith my check for $11.37 in payment of your share, less costs of •satisfaction 25 cts. paid by me for you.
Statement
Am’t of your share.$11.34
Int. from May 18 to Oct 18...28
11.62
Costs .25
$11.37
“I have written to your sister at 2740 Grand Ave. St. Bouis, Mo., and presume that she will not come here for so small an amount, but will execute a power of atty. for me to receive the money and satisfy the record. You might tell her that you have gotten your share and that I am ready to pay her. The purchaser paid $11.34 into court, and your mother will be entitled to the interest on that sum while she lives and at her death it would go to the heirs at law of Edgar Jamison. You and your sister will get it at her death if you are living; it being the dower interest of .your mother.
“Yours truly J. Frank Biggs.”
There is no oral or documentary evidence in the case in any respect contradicting or weakening the testimony of Catharine and Vesta that they were wholly ignorant and uninformed as to their rights under the will of thpir grandfather until 1905. On the contrary, their statements are corroborated and substantiated by both direct and circumstantial evidence. George E. Mathieson states in substance that he first learned in 1904 of the claim set up by his wife; that she got a letter from Wilmington in which there was a check for eleven dollars and some odd cents; that “we had a little talk about it and I said there must be something back of that. So> she consulted a lawyer and then she found out that there was something back of it”; and that it was in,1905 that he learned of tire interest of his wife in her grandfather’s estate. Mrs. Jamison, Edgar’s widow and mother of Catha-rine and Vesta, states in substance that she knew that Thomas Jamison left a will; that she had never seen it and did not.know its contents; that her husband never talked to her about it; that she never knew that her two daughters or-either of them had any interest in the estate of the testator; that she never told or discussed or talked to them about any interest they might have under his will; that she thought she and her children had an interest in the Corner farm of which Oliver had possession; that she looked to Oliver for her living from that farm; and that she had told her children that “we had the farm,” — referring' to the Corner farm. One naturally would
The defendants examined certain witnesses for the purpose of showing statements by Catharine and Vesta and their mother indicating such knowledge or information on their part as to whatever rights the two daughters had under the will as to make them chargeable with laches in not sooner proceeding for the enforcement of such rights. The testimony thus adduced, however, falls far short of establishing knowledge or notice on the part of either of the daughters of the rights asserted in the bill in this suit, or of any matter or thing which could reasonably put them upon inquiry. Thomas J. Green, son of Sarah Eliza Green, states in substance that he knew Vesta when she was living with his mother in Odessa; that Vesta was eight or nine years old when she went to live with his mother, and continued to live with her about thirteen or fourteen years; that he lived there three or four years immediately after Vesta first went there; that when he left she was eleven or twelve years old; that he saw her during a period of five or six years after he ceased to live with his mother; that he heard Vesta say while he was living with his mother that “she had some money coming to her, if she wasn’t cheated out of it,” when she came of age; that “sometimes, if she had a right smart to do she would say to us boys, ‘There will be a time, when I get my money, that I won’t have to work so hard,’ or something to that effect, you know. That is all I ever heard her say about it”; that he doesn’t know how often she made a remark to that effect, but “I heard her say several times, like a small child, because she was nothing but a child then.” Lettie V. Green, wife of the last mentioned witness, states in substance that she had Vesta as a pupil while she was teaching school at McDonough; that she began teaching there twenty years before' testifying and continued to teach for a period of three years; that Vesta was then at'the house of Mrs. Green, the mother of her husband; that during that period she had heard Vesta say that “she had been cheated out of money”; that she does not know that the remark related to her grandfather’s estate; that she “heard her say that she had money coming to her that she had been cheated out of” ; that “when she had work to do-, and it was something she didn’t want to do, she would say, T wouldn’t have to do this if I hadn’t been cheated out of the money that was coming to me’ ”; that Vesta did not tell her whether the money she referred to was “money from her grandfather’s estate.” Abraham S. Mote states in substance that he had known Josephine Jamison, the mother of Catharine and Vesta; that he made her acquaintance “a little past fourteen years ago-, I judge”; that she lived at his house from April to September and in the following, year probably three or four weeks; that he knew Catharine, who stayed at his house about five *or six months; that Mrs. Jamison said “her daughter would be entitled to her father’s share, but she was afraid they were going to cheat her out of it”; that he could not say whether Catharine heard this remark; and that he heard Mrs. Jamison make such a remark about two or three times.
“X. When you were hero before and testified you said that Mrs. Jamison said that her daughter, referring to Kitty, would he entitled to her father’s share, but she, Mrs. Jamison, was afraid thejr were going to cheat her out of it. Is that correct? A. Wait until I study it up a bit. Tes, sir; that is correct, because I don’t know of anybody else she expected money from, only her husband. * * * X. That was the drift of her talk, was it, the substance of it, I mean? A. As I remember, that has been fifteen years ago.”
Eliza G. Green, also a witness for the defendants', having been recalled and examined on behalf of the complainants, testified by way of correction of her testimony as originally given, as follows;
“Q. Mrs. Green, in your testimony before, you testified that you heard Mrs. Bastian, now it is, then Vesta Jamison it was, while she'was living with you speak of some moneys which she ought to have had hut had been cheated out of, coming from some estate. Do you have any clear recollection whether or not that was money coming from, her grandfather’s estate? (Objection.) Q. Do you have any recollection of whose estate it was? A. I used to hear her speak about her father’s and the Jamison Farm. • She said that was her father’s and that she and her sister should have had that, but that they were cheated out of it, the Jamison Farm. Q. The Jamison Farm? A. The Jami-son Farm. She has gone by there with me before now and she would always say, ‘that ought to have been my sister’s and my farm, but we were cheated out of it.’ * * * Q. Mrs. Green, did you ever hear her say anything about any moneys coming from her grandfather’s estate? A. Not in her younger days I didn’t. Q. Did you ever at any time? A. I heard her say so last winter when she was down to see me. * * * X. Mr. Willis asked you this question; ‘It was. immediately after the time that she came to live with you that she had this conversaion you spoke of’? A. That I spoke of, yes, sir. She hadn’t clothes, you know, and she told me that was the reason why she hadn’t clothes, that she would have had clothes, and better clothes, but they were cheated out of their money ’which their father had coming from their grandfather. She said that she had had money coming from her grandfather, hut they were cheated out of it, and that was the reason why they were so poor.’ A. I guess I must have got tangled in her saying that, but this is what she told me last winter. I must have got tangled in it, must have got it in that way, because I don’t remember her ever saying anjdhing about her grandfather when she was little, only since, as I told you, in the winter when she was down to see me, and then she told me about her grandfather. I suppose I must have got a little tangled in it. I don’t know, but that is correct. I can’t call to mind at all any time that I ever heard her speak about her grandfather when I had her, and after the farm was sold I didn’t hear her say anything more about her father’s estate, ft. Q. Which farm did you refer to? ,A. The Jamison Comer farm. She talked about that a good bit. It. Q. By ‘last winter’ do you mean the winter of 1911? A. Tes, sir; the winter of 1911 when she was down to our house, she spoke of her grandfather. If I said it otherwise, I got a little tangled because I never heard her say anything about any grandfather in her younger days, about having any money, or any money coming to her from her grandfather.”
The insufficiency of the foregoing evidence to establish knowledge or even the faintest suspicion in either Catharine or Vesta of their, rights under the trust or charge created by the testator and payable on the death of their father is too manifest for discussion. The remarks
•‘These statutes to their terms are confined to actions at law, and do not extend to suits in equity. But courts oí equity consider themselves within their spirit and meaning; and that sound policy and public convenience require their adoption. Hence it is an established rule, that where the statute bars tlie legal remedy, it shall bar (he eq,uitable remedy in analogous cases, or in reference to the same subject matter, and where the legal and equitable claim so far correspond, that the only difference is, that the one remedy may be enforced in a. court of law, and tlie other in a court of equity. * * * The result clearly follows, that if no statute of limitation bars the case at law, the same, or the analogous case in equity is not barred.”
But although no statute of limitations applies in terms or is applicable by analogy to a proceeding for the enforcement of a money charge on real estate, the court proceeded to say touching courts of equity;
“Upon general principles of their own, independently of the statutes of limitation, they have always discountenanced laches and neglect; and refused their aid to stale demands where the party has slept upon his right, or acquiesced for a great length of time. * * * The defence founded on presumptions from lapse of time, is not peculia r to courts of equity. At common law, although as has been said, it was a rule that a right never dies; presumptions were always raised from lapse of time, independently of tlie statutes of limitation. * * * The lapse of twenty years raises the presumption, that bonds, judgments, decrees, recognizances and other matters of record have been satisfied; and unless repelled by circumstances explaining the delay, or by evidence of an acknowledgment of the debt within that period, the i>resmnption is conclusive, and is a complete bar under the plea of payment. A legacy charged upon land is within the same principle. No sufficient reason can be given for making any distinction in this respect between it, and the case of a judgment or recognizance binding on lands.”
“The length of time during which the party neglects the assertion of his rights, which must pass) in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations,' subject to an arbitrary rule. It is an equitable defence, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant to the rights such, that it would be inequitable to permit the plaintiff to now assert them. There must, of course, have been knowledge on the part of the plaintiff of the existence of the rights, for thére can be no laches in failing to assert rights of which a party is wholly ignorant, and whose existence he had no reason to apprehend.”
And in Galliher v. Cadwell it is said that the cases on laches “proceed on the assumption that the party to whom laches is imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum.” In view of the evidence the suggestion that there was actual laches on the part of Catharine or Vesta or either of them is preposterous.
He could not have maintained suit for the principal before Edgar’s death, for until then it was not payable; and since it became payable by reason of his death it was payable exclusively to the children. Being under n"o duty and having no right after Edgar’s death to enforce the charge, he could not be guilty of laches in omitting to sue, and consequently there was no ladies to be imputed to Catharine and Vesta. Whether Craven omitted to do what he should have done during Edgar’s life-time is an inquiry not pertinent to the question of representation with respect to ting principal of the fund on or after his death. Craven was charged with the duty of raising out of or properly charging upon the farms the provision for Edgar and his children. But the actual raising of the $16,000 out of the farms and its investment, or
“The principle of that case, and ofl Richardson v. Chapman, which went to the House of Lords, and all these cases, is, that, if the power is a power which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power, and not as having a discretion, whether he will exercise it, or not; and the court adopts the principle as to trusts; and will not permit his negligence, accident, or other circumstances, to disappoint the interests of those for whose benefit he is called upon to execute it.”
Whether Craven’s non-feasance with respect to the mandatory provisions referred to -was calculated to prejudice purchasers of the farms is a question addressed, not to any fanciful representation by him of Catharine and Vesta, but to the equities attending and growing out of the purchase.
The contention that Stuckert as guardian of Catharine and Vesta was guilty of laches imputable to them cannot be sustained. There is no evidence that he at any time knew or had heard of the charge on the farms in favor of Catharine and Vesta. Nor does it appear that he had knowledge of any facts which could serve as a basis for constructive or implied notice to him of the existence of such charge. There is no evidence that he was ever told or that he ever mentioned that either Catharine or Vesta had an interest in the estate of the testator. Such knowledge or notice cannot be inferred from the fact that he was one of the appraisers of the farms. The duty of Hudson, Stuckert and Lynch under the will was at the proper time merely to appraise the farms. They had nothing whatever to do with the equalization of the shares, and the raising or charging of the share for Edgar and his children or issue. Craven was exclusively charged with those duties. Nor did the performance of their duty by the appraisers in any way involve knowledge on their part or notice to them whether at that time there was any, and if so, what amount of personalty included in the estate applicable to the equalization of shares or the payment of the share just specified. Stuckert was appointed guardian June 11, 1887, on the petition of Edgar’s widow; Catharine then being about nine years and four months old, and Vesta seven
“They are intended to furnish the best and most easily accessible evidence of the titles to real estate, to the end that those desiring to purchase may be fully informed of instruments of prior date, affecting the subject of their contemplated purchases.”
The defendant Biggs, who holds the Homestead farm, claims title thereto immediately under the sheriff’s deed to him executed December 9, 1903, pursuant to a sale under the mortgage of Oliver Jamison and wife to the State of Delaware, dated April 21, 1888. This mortgage was executed about fifteen years and seven months before the deed under which the present holder immediately claims title, and refers to the real estate covered by it as being the same premises conveyed by Biggs to Oliver June 29, 1885, by deed recorded, etc. That deed refers expressly, as has appeared, to barring the entail under the will of the testator. The defendants Lawrence Lofiand and Martha Lof-land, who hold the Capelle farm, claim title thereto immediately under a deed from John A. Harris, Jr., and wife to them executed March 25, 1902, and mediately under a deed from Clarence Jamison and wife to John N. McCrone, executed October 27, 1885, which last mentioned deed was executed sixteen years and five months before the deed under which the present holders' immediately claim title, and refers to the real estate conveyed by it as being the same premises conveyed, inter alia, to Biggs by Oliver, Clarence and Edgar, “to bar the several estates tail therein mentioned and this conveyance being executed to complete the same and put the fee simple title of the above described premises in the said Clarence Jamison.” The defendant Eliza C. Green,' who holds the Corner farm, claims title thereto immediately under a deed from
‘•It seems to be well settled that where lands are held by subsequent bona lide purchasers lor value, but who are obliged to trace title through a devise, whereby a charge is created upon tile lands for the payment of legacies, such, purchasers will be constructively affected with notice of such charge, and equity will enforce it upon the lands in their hands.”
In Pomeroy’s Eq. Juris. § 626, it is said:
“Wherever a purchaser holds under a conveyance, and is obliged to make out ids title through that deed, or through a series of prior deeds, the general rule is firmly established that he has constructive notice of every matter connected with or affecting the estate which appears, either by description of parties, by recital, by reference, or otherwise, on the face of any deed which forms an essential link in the chain of instruments through which he must derive his title.”
“Knowledge of facts which would put a person of ordinary prudence and diligence on inquiry is, in the eyes of the law, equivalent to a knowledge of all the facts which a reasonably diligent inquiry would disclose.”
In Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 437, 12 Sup. Ct. 239, 246 (35 L. Ed. 1063), the court quoted with approval the following rule stated by the Virginia Court of Appeals:
*385 “Purchasers are bound to use a due degree of caution in making their purchases, or they will not be entitled to protection. Caveat emptor is one of the best settled maxims of the law, and applies exclusively to a purchaser. He must take care, and make due inquiries, or he may not be a bona fide purchaser. Ho is bound not only by actual, but also by constructive notice, which is the same in its effect as actual notice. He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his eyes or Ills ears to the inlet of information, and then say he is a bona fide purchaser without notice.”
In Northwestern Bank v. Freeman, 171 U. S. 620, 629, 19 Sup. Ct. 36, 39 (43 L. Ed. 307), the court said:
“A purchaser is charged with notice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the records would have disclosed.”
In Ochoa v. Hernandez, 230 U. S. 139, 164, 33 Sup. Ct. 1033, 1042 (57 L. Ed. 1427), the court said:
“It is a familiar doctrine, universally recognized where laws are in force for the registry or recording of instruments of conveyance, that every purchaser takes his title subject to any defects and infirmities that may bo ascertained by reference to bis chain of title as spread forth upon the public records.”
Hall v. Livingston et al., 3 Del. Ch. 348, cited by the defendants, is not in point here, for the reason that the trust which it was sought to establish against land held by a subsequent purchaser for value was of a parol or oral nature, created by his vendor in favor of the complainant, the trust not being disclosed or suggested either in the deed by which the vendor acquired title or in that to the subsequent purchaser for value. The matter relied on as notice to the purchaser of the existence of the trust was wholly dehors the deeds or their record, consisting of oral suggestions to the purchaser by third persons; one of them being “a mere vague suspicion” thrown out during a conversation “directed to another point,” and the other the expression of “only vague and indefinite suspicion, pointing to- nothing, and in itself carrying no notice.” The Chancellor naturally held that the evidence showed “at most, a want of extreme caution.” In declaring that the purchaser could not be affected with notice of the trust unless the facts were so clear and undoubted as to make it fraudulent in him afterwards to take and hold the property, the court indulged in language uncalled for by the facts and in conflict with the American doctrine of notice arising from registry or recording as appears from the decisions and text books above cited, which are wholly at variance with the proposition that mala fides on the part of a subsequent purchaser for value is necessary to ¿fleet him with notice of the existence of a prior trust or equity, disclosed or suggested in the deeds through which he is compelled to trace his chain of title. United States v. Detroit Lumber Co., 200 U. S. 321, 26 Sup. Ct. 282, 50 L. Ed. 499, was also a case in which it was sought to establish notice, not from anything appearing or suggested on the face of any deed or its record, but solely from extraneous facts. No record sug-
The defendant Biggs contends that even were it true, which he denies, that by reason of his participation in the conveyancing for the purpose of barring the supposed entail, in which reference was made to the will, he was charged with notice of its contents, he is nevertheless a purchaser from a bona fide purchaser and consequently is entitled to protection. This position cannot be maintained, as he became purchaser under a sheriff’s sale under the mortgage of Oliver and his wife to the State of Delaware, dated April 21, 1888, which refers to the deed from Biggs to Oliver of June 29, 1885, expressly referring to the barring of the supposed entail under the will.
It is argued that as the testator constituted Craven trustee, he thereby endorsed him to all whom it might concern as one fully competent and willing to discharge his fiduciary duties, and therefore that purchasers of the farms without actual knowledge of dereliction on Craven’s part should be protected against Edgar’s children claiming under the will. This contention, whatever may be its plausibility, is unsound. It could be made equally with respect to all trustees appointed by deed or will, and if carried to its logical result it would present the reductio ad ab-surdum that negligent or careless purchasers who by reason of inattention or indifference failed to ascertain the condition of the property purchased by them should be protected as against wholly innocent objects of the testator’s bounty. The statement of the proposition is its' refutation.
It would seem that approximately the same degree of care and investigation might reasonably be expected to be observed by the defendants for the purpose of ascertaining whether the land sought to be acquired was clear of charges, as by the complainants, who, in the absence of definite information acted merely on surmise based upon the communication from Biggs, in ascertaining whether they had an interest in such land. But however this may be, the exercise of only a reasonable degree of care and diligence was all that was necessary to acquaint them with the facts learned by the complainants.
There being absolute innocence and a total absence of laches on the part of Catharine and Vesta, and culpable negligence on the part oí the present owners or holders of the farms in omitting to pursue obvious inquiries suggested on the face of the public records, making them chargeable with notice of the rights of Edgar’s children in the premises, the complainants are entitled to a decree. An apportionment of the amount due and payable to the complainants as between the three farms is readily made. Their aggregate value determined by the ap-praisement made by Hudson, Stuckert and Cynch is 848,000, and no personalty haring been applicable to the share intended for Edgar during his life-time and his children or issue after his death, $16,000, being ouc-tliird of the aggregate valuation, is chargeable upon the tliree farms‘as the amount payable to Catharine and Vesta in equal shares on the death of their father May 1, 1886. After deducting $16,000 from the total valuation of $48,000, the sum of $32,000 is left, representing what must be taken as the net value of the three farms for the purposes of equalization and apportionment, to be equally divided between Clarence and Oliver. For those purposes $10,666.66, being one-third of the total net value of the real estate represents the average net value of each of the three farms. The Homestead farm which was appraised at $22,000 represents $11,333.33 more than its net value for the purposes of equalization and apportionment. The Capelle farm which was appraised at $14,000 represents $3,333.34 more than its net value for the above purposes. The Corner farm which was appraised at $12,000 represents $1,333.33 more than its net value for those purposes. The excess of the aggregate of the sums at which the three farms respectively were appraised over the aggregate amount of their net value for the purposes of equalization and apportionment amounts, and necessarily must amount, to the sum of $16,000, which became payable to Edgar’s surviving children under the provisions of the will and the appraisement. This sum must be declared chargeable against the three farms respectively as follows: On the Homestead farm $11,-333.33, on the Capelle farm $3,333.34, and on the Corner farm $1,333.-33, these respective sums to bear interest at the rate of six per cent, per annum from May 1, 1886, until the principal he paid. But as these respective sums with interest represent all which became due and payable to Edgar’s surviving children, and as Vesta and her husband were by amendment dropped out of the case and have not since become parties to it by intervention or in any other manner, the complainants in right of Catharine P. Mathieson are entitled to receive only one-half of the above mentioned sum of $16,000, distributed as follows: $5,~ 666.66 on account of and as charged against the Homestead farm, $1,666.67 on account of and as charged against the Capelle farm, and