29 W. Va. 119 | W. Va. | 1886
On the 20th day of October, 1854, Jacob Seibert made bis last will, which in April, 1855, was admitted to probate in Berkeley county, where he resided at the time of his death. By the fourth clause of this will he gave to his -wife, Catha-rine, all of his personal property except one dun colt. By the eighth clause he said: “I will and direct, that two thousand five hundred dollars shall be put to interest on landed security by my executor out of the money arising from the collection of my outstanding money, and the interest paid annually to the trustees and their successors of the Lutheran Church in Martinsburg, Berkeley county, Virginia, for the use and benefit of said church.” By the fourteenth clause of the will “the balance of the money arising out of his outstanding debts” was bequeathed to his wife Catharine. W. H. Mong was appointed executor of the will. Catharine Seibert made her will on the 30th of March, 1867, by which she declared, that “after having made sale of all my effects and collected all money due me or my estate from all sources whatsoever I will and desire, that my executor shall distribute equally share in share all moneys belonging thereto to the six persons hereafter named, whom I constitute and hereby declare my heirs and legatees, viz.: My sisters, Margaret Gladden, Mary Siebert, Sarah Small, Susan Stewart, my sister-in-law, Eliza Mong, and my brother, William H. Mong, all of whom reside in the county of Berkeley and State of West Virginia, except Mary Siebert, who resides in the State of Ohio.”
By the third clause of her will she provided, that, if any of said legatees should die before her, then the share of such person or persons should be equally divided among those living at the time of her death. She appointed W. H. Mong executor of her will.
On the 15th day of September, 1876, she made a codicil to her will, in which she referred to the tender care, which her
This will was admitted to probate on the 12th of January, 1877.
The plaintiffs, Eliza Mong, Margaret Gladden and Mary iSeibert, filed their bill at rules in the Circuit Court of Berkeley county in April, 1880, to eonstrue the will of Jacob Siebert. 'They setforththe making of said will and also the will of Cath-arine Siebert, and alleged, that they were legatees of Catha-rine Seibert under her will; that the three plaintiffs and the defendant, Wendell Mong, and his wife, Eliza Y., were the only legatees named in the will of Catharine Siebert, who survived her, and those five should receive all of her estate. The bill charges, that the bequest of $2,500.00 to the trustees of the Lutheran Church at Martinsburg is void, and that the same went to° Catharine Seibert under the will of her husband and should now be distributed among her legatees. The bill further charges, that said $2,500.00 passed into the hands of William H. Mong, executor of the will of Jacob Siebert, deceased, “ who held it during his life in money and uninvested subject to the order of said Catharine Siebert during her life, she having from time to time in accordance with her own charitable wishes directed him to pay over to the trustees of said Lutheran Church the accruing interest of said fund. The said William H. Mong having departed this life in the year 1876 and but a short time before the death of said Catharine, upon the qualification of the said George S. Roush as executor of the said William H. Mong on the — day of-r-, 187 — , as appears by Exhibit a B ” filed, &c., the said fund came into his hands, where it now remains. The bill prays, that Roush, the executor of Mong, shall be required to pay to plaintiff's or to the executor of Catharine Siebert the said $2,500.00, &c. The trustees of the Lutheran Church, D. A. Cline, William Wilen, Philip Diefenderfer, IT. N. Beatrick, and George P. Walters, Wendell Mong in his own right and Eliza Y. Mong, his wife,-and Wendell Mong, executor of Catharine Siebert, and as administrator, &c., of Jacob Siebert were made defendants.
The settlements showed all claimed for them by the answer ; and the second settlement omits any reference to said $2,500.00 or the interest thereon.
Philip - Dif'enderfer, another of the trustees, answers and adopts the answer of Wilen as his own and further avers, that the said $2,500.00 was a gift from Catharine Siebert in her lifetime to said trustees. He then states, that the governing body of the Lutheran Church is a council composed of members selected for that purpose; that at the time of his death Jacob Siebert was a member of said council; that •almost immediately after said Siebert’s death W. H. Mong was selected to fill the vacancy caused thereby, and that -said Mong remained an active member of said council until he died; that in 1856 or 1857, $1,500.00 of the $2,500.00 was invested in a parsonage belonging to said church, and remained so invested until 1867, when the parsonage was sold, and the'purchase money ($3,200.00) was paid to said William H. Mong, who was at that time one of the trustees of said church; that when the $1,500.00 was so invested and the church was receiving the benefit of it, the interest on the remaining $1,000.00 only was paid to the church annually by Mong.
In May, 1881, the plaintiff filed an amended bill, in which it is alleged, that “the right to institute this suit was obstructed by war, insurrection and rebellion for and during the period of four years, to-wit, from the 17th day of April, 1861, to and until the 1st day of May, 1865.” The plaintiffs further allege, that Catharine Siebert never did consent at -any time, that said $2,500.00 should be invested or put to interest on landed security for the benefit of said Lutheran Church; and that said fund never was so invested; and that Catharine Siebert never did make a gift of said fund or any part thereof to said church or to the trustees.
On the 12th day of May, 1882, George S. Eoush, executor of William H. Mong, paid into court the sum of $2,500.00,. which the court directed the general receiver to loan. It was agreed by counsel representing both sides, that William H. Mong was in 1856 by the Lutheran Church appointed one of the council in place of Jacob Siebert, deceased, and that-he continued a member thereof until his death; and that in March, 1861, he was appointed one of the trustees of said church and remained such until his death, and that the said council is the ruling body of said church and appoints the trustees thereof.
George S. Eoush, executor of William H. Mong, answered and among other things said, that he was the regularly appointed and qualified executor of William H. Mong, deceased, and that not long after assuming his duties as such “he was called upon by an attorney, who represented the trustees of the Lutheran Church, and the interest on $2,500.00 was by said attorney demanded of him. He was informed by said attorney, that the claim for the interest was based on a devise in Jacob Siebert’s- will. Upon consultation with his attorney he was advised not to pay said interest until there had been a construction of the will by the court, that otherwise he might make himself responsible for it. He has. no personal knowledge in regard to said amount, nor has he
The only deposition in the case is that of Rev. M. L. Cul-ler, who deposed, that he had been pastor of the Lutheran Church at Martinsburg since December 1,1869; that he was acquainted with Catharine Siebert, who was a communicant of his church; that he had been acquainted with her from the time he became pastor of the church until her death; that he had several conversations with her in relation to the legacy, can not tell how many; that she said, it was the church’s money, and in speaking of her husband said: “Jacob wanted the church to have the money. .The church must and shall have itthat sometimes she used one term and sometimes the other; that she said, she wanted it to go, as her husband intended, and always expressed this as her determination; that she was devoted to her church and anxious to see it prosper ; that she seemed to fear, that an effort might be made to divert this money from the church; and that she was anxious, that the church should retain it.
On the 21st day of December, 1883, the cause was heard, and the court granted the relief prayed for in the bill and directed, that the general receiver of the court after paying the costs of the suit should distribute the money; to Eliza Mong one-fourth, to Mary Siebert one-fourth, to E. M. Pitzer, executor of Margaret Gladden, one-fourth, and the remaining one-fourth to 'Wendell Mong and his wife.
There can be no doubt, that in our State a bequest to ‘“trustees and their successors ” of a certain church is void. (Bible Society v. Pendleton, trustee, 7 W. Va., 79). It is assigned as error, that the court overruled the demurrer to the bill. The question of the right of the plaintiffs to the bequest is not decided, when we hold, that the bequest was originally void. Further questions are involved : First — "Would these plaintiffs under any circumstances as legatees of Catharine Siebert have any right to the $2,500.00 ? Second — If under any circumstances they would have such a right, has that right been lost by lapse of time and acquiescence on the part of Catharine Siebert?
By the will of Catharine Siebert it is clear, that she gave her legatees “all her effects and all money due her or her estate from all sources whatsoever.” It is perfectly plain from this language, that she gave these legatees this $2,500.00, if it belonged to her at the time of her death — “if it constituted a part of her estate and was money then due her.” The test of whether it was hers at the time of her death is : Could she have sued for and recovered it in her lifetime, up to the time of her death ? If she could, then it was money due to her; if she could not, then it did not belong to her. The bequest to the trustees being void, if she had sued for it in time, she certainly could have recovered it, as it was clearly given to her by the will in that event. Did she lose her right to recover it? The doctrine of lapse of time as a de-fence in equity was considered by this court in Cranmer v. McSwords, 21 W. Va. 594, and in Pusey v. Gardner, 21 W. Va. 569. In the last cited case the court held, that lapse of time, when it does not operate as a positive statutory bar, operates in equity as an evidence of assent, acquiescence or waiver, and approvingly cites Kerr on Fraud and Mistake 305.
In Roberts v. Tunstall, 4 Hare 256, it appeared, that the tenant for life of an estate, who was also devisee in trust in remainder for the children of the testator with power of appointment by will amongst them, purchased and obtained from the objects of the power a release of their re
In Gregory v. Gregory, Cooper 201, Sir William Grant, Master of the Rolls, said : “In all the cases, in which lapse of time has not been allowed to operate againát. The title to relief, it has been shown, that there has been a contihuance of the circumstances, under which the transaction first took place, as of the distress of the parties or of the improper influence used or of some other circumstances. Here the parties were independent of the purchaser or of his bounty. They had also the opportunity to object early to the sale. The only circumstance alleged in answer to this is their poverty, which is proved to have been a fact at the time of the purchase; but the evidence as to that stops at the year 1793, and does not in the least show any continuance of distress. Can it be,said, that eighteen years, which have since elapsed, can go for nothing ? In Bonny v. Ridgout, 1 Cox Cas. 145, a case before Lord Kenyon, he dismissed the bill merely upon the lapse of time, though, he thought, it was a transaction, in which, if recent, the court would have granted relief. There would be no security for men’s rights, if it were otherwise.”
In Murray v. Palmer, 2 Sch. & Lef. 486, Lord Chancellor Redesdale said: “Now I take it, that nothing will amount to a confirmation of a fraudulent transaction but an act done by the party, after he has become fully aware of the fraud, that has been practiced. I do not mean to say; that the party should be aware of all the circumstances, but he must be aware, that the act he is doing is to have the effect of confirming an impeachable transaction. Otherwise the act amounts to nothing as a confirmation. ' Then there is the acquiescence down to 1800 from 1788, during the whole time,
In Life., &c., v. Siddel, 3 DeG. F. & J. 76, the Lord Chancellor said: “On the general doctrine of acquiescence by eesiuis que trust, which has lately been so much canvassed, I agree in the explanation of the subject, which has been so lucidly given by Lord Justice Turner in the same case. I must add, that, although the rule be, that the onus lies on the party relying on acquiescence to prove the facts, from which the consent of the cestui que trust is to be inferred, it is easy to conceive cases, in which from great lapse of time such facts might and ought to be presumed.”
In Lyddon v. Moss, 4 DeG. & J. 104, it was held, that an agreement between a solicitor and a client without the intervention of any other solicitor to allow the solicitor interest on his bill of costs can not be maintained independently of subsequent acquiescence, unless it appear, that he informed the client, that the law allowed no such charge. But where the relation of solicitor and client has ceased, after such an agreement had been made, and the client subsequently having in the meantime had proper advice on the subject of the agreement entered. into a second agreement with the solicitor in part founded on the former, which she did not seek to impeach till fourteen years after its date: Held — There had been such delay and acquiescence as to preclude any title to relief.
In Pickering v. Lord Stamford, 2 Ves. 272, it appears, that the testator gave the residue of his personal estate to his executors for their own use and benefit; afterwards by a codicil he directed them to dispose of it in charities, and part was accordingly applied in founding a school. Thirty-five years after the testator’s death, all the next of kin and the acting trustee being dead, a bill was filed by a representative of one of the next of kin, on the ground that part of the personal estate was secured by mortgage, therefore as to that the charitable bequest was void, and that the right of
It will be observed, that in that case it was held, the executors being trustees of the whole fund could not therefore claim for themselves. Here there was nothing to prevent the widow of Jacob Siebert at any time claiming the $2,500.00.
In Byrne v. Frere, 2 Mol. 157 (12 Eng. Chy. 391) it was held, that the lapse of time of more than twenty years bars even in case of fraud, if the party seeking relief has become within any reasonable period cognizant of the facts.
In Bolling v. Bolling, 5 Munf. 334, it was held, that a dev-isee was in general bound to take notice of the contents of the will, under which he received, when of full age, certain lands and other property from the executors, such will hav.-ing been proved and recorded ; — that a court of equity ought not to direct an account to be taken after a great lapse of time and after acts of acquiescence by the party demanding it in a construction of his rights, which, if correct, would render such account unnecessary.
In Nelson v. Carrington, 4 Munf. 332, it was held, that lapse of time was permitted in equity to defeat an acknowledged right on the ground only of its affording a presumption, that such right had been abandoned. It therefore never prevails, when such presumption is outweighed by opposing facts or circumstances.
In this case there was not only a lapse of over tAventy years, after the Avill of Jacob Siebert was proved, before the death of Catharine Siebert, his devisee, under whose will the plaintiffs claim; but there were with a full knowledge of
The d*murrer to the bill was properly overruled, because it might lave been made to appear, that she was not defeated by lapse of time and acquiescence. Rut these plaintiffs have shown no right at all to recover. It is not material, in the view we have taken, that $2,500.00 was brought into court by the executor of W. H. Mong, who was the executor of the will of Jacob Siebert. The settlement as executor made in 1856 showed, that he had credited himself with $2,500.00 “put out on interest for the benefit of the Lutheran congregation of Martinsburg.” His subsequent settlement makes no note of the principal or interest. Mrs. Catharine Siebert must have known, that the money was so “put out on interest.” She never claimed it.. She said it was the “church’s money.” By her acquiescence and the lapse of time it did become.the church’s money, now belongs to the Lutheran Church at Martinsburg and should be held by the trustees, of said church for its use. It has been regarded as invested for the benefit of said church all these years. W. H. Mong, executor of Jacob Siebert, may have- held it himself, as he paid the interest to said trustees almost every year. The principal is now in court; and I think the decree should be reversed with costs, and the money be paid to the trustees for the use of said church.
My associates do not agree with me in this view. They think, there could be no acquiescence in a case like this, be-acuse in their view there was no “ hand, that could hold
AFFIRMED.