88 N.J. Eq. 500 | New York Court of Chancery | 1917
This bill is to quiet the title to “Long Brook Farm” and a strip of land used as a roadway, known as “Hard Scrapple,” in Franklin township, Somerset county. Motion is made to strike out the answer because it sets up no estate or interest in the defendants.
The answer discloses that Miles Smith was the owner in fee at the time of his death in 1838. By his will, proved before the ordinary, he devised the premises to his four sons, as joint tenants, in fee-simple, in trust, to occupy them and to receive the rents, issues and profits and pay the net income to his daughter Henrietta during her lifetime, thence to her surviving husband during his lifetime, and upon their death to convey them in equal shares to the children of Henrietta and the issue of any deceased child per stirpes. Henrietta occupied the farm during her lifetime. She married Reni A. de Russy and survived him, dying in 1882, leaving four children, under whom, by mesne conveyances, the complainant holds, and from them down his ■ chain of title is perfect. He and his lessors have always been in peaceable possession.
After making other devisees, not necessary to be mentioned here, the testator gave $5,000 to his four sons in trust for the widow of a deceased brother for life, over to her four children for life, principal to fall into the residue of the estate. The residue of his personal estate he bequeathed to his four sons and four daughters in equal shares, the daughters’ shares to be held in trust by two sons, Miles and Hatfield, in- default, by his two other sons, Franklin and Digby, as substituted trustees, the interest whereof was to be paid to them during life, with remainder to their lawful issue, and on failure of issue alive at their death to his surviving children, and to the issue of deceased children per stirpes. The testator died possessed of personal property of
The theory, upon which the defendants build their claim is that the legal title to the lands in controversy is ixx the heir (prixnogeniture) of the surviving trustee, upon special trust unexecuted; that he cannot be called upon to execute the trxxst because the cesiuis que trust have refused to account for the trust funds, and that because of this, the title, legal axxd ecjxxitable, is in the trustee for the benefit of the will. As agaixxst this the complainant contends that upon the death of Henrietta, the trust, which up to that time had been active, became a sixnpie xxse which the statute (Comp. Stat. p. 1536 § 7) executed ixx the cestui que trust, and therefore the equities set up. by the defexxdants cannot impair the legal title thus vested in them. I apprehend that this is not admissible, in view of the legal construction to be accorded to the language creating the trust. The devise is to the trustees as joint tenants in fee-sixnple, to occupy and to collect axxd pay over the net income, axid upoxx axi event, certain, to convey. The use was executed in the trustees to enable tlxexn to discharge these' duties, and the trust comes within
On the death of the life use, the legal and equitable estates were in the trustees and the cestms que trust, respectively, and if, even at that time, the trustees were in position to have enforced the equities here asserted, it is not to be assumed that the right is still intact and the remedy available, for it must be evident that at this remote period the determination of the controversy admits of other considerations. The defendants and those under whom they claim have slept so long upon their rights that they must be charged with' gross laches as well as barred by the statute of limitations. It was before the civil war that Keni de Fussy became chargeable with the trust ex maleficio, and fifty years have elapsed since the right of action against his children accrued, and the complainant and his lessors have been in possession of the farm for thirty-five years. During all of that time the defendants, and those whom they succeeded, stood complacently by without the slightest protest or complaint. They cannot now be heard to revive their stale claim. Both the statute and the doctrine of laches confront them. Dean v. Dean, 9 N. J. Eq. 425; McClane v. Shepherd, 21 N. J. Eq. 76; Hendrickson v. Hendrickson, 42 N. J. Eq. 657; Dyer v. Waters, 46 N. J. Eq. 484; Condit v. Bigalow, 64 N. J. Eq. 504; Quairoli v. Italian Beneficial Society, 64 N. J. Eq. 205; Van Houten v. Van
In a paragraph of the answer^the defendants set up that prior to April 12th, 1856, the will of the testator disappeared from the files of the prerogative court, and that neither the original nor a provable copy could be found “until shortly before the bringing of this suit and some time subsequent to the several transactions through which the complainant is seeking to establish his bill for.relief.” This, evidently, was intended to explain and excuse the delay, although there is no averment to that effect. It is not alleged that the defendants, or those under whom they claim, were not fully advised of their rights or that by reason of the loss of the will they were unable to assert and establish them seasonably; and if- it is meant that these results are to be inferred, then the averment is bad, because it is indefinite and argumentative. That the original will could not be found “until shortly before the bringing of this suit, and some time subsequent to the several transactions through which the complainant is
With the right to an accounting lost to the defendants, the allegation that conveyance of the legal title had not been made by the trustees, is reduced to a mere conclusion and impotent against the presumption that the trustees had executed their trust and conveyed as directed by the will. The presumption predominates in law and in equity unless facts alleged exclude its operation. Here there are none. The complainant could maintain an action in ejectment against the trustees, and the jury would be controlled by the presumption in spite of proof to the contrary. In, Baxter v. Baxter, 43 N. J. Eq. 82, involving a somewhat similar devise in trust, Vice-Chancellor Van Fleet said: “The rule is well settled that where lands are conveyed or devised to a trustee, to be held until the cestui que trust reaches a certain age, and then to be conveyed to him, if the trustee fails to pass the legal title at the time when the cestui que trust is, by the terms of the trust, entitled to it, and his right to the possession of the lands is resisted, he may recover possession by ejectment, on the presumption that the trustee has done his duty and made over the legal title to him. Courts of law are now at
Now, if upon a trial of the issue it is to be presumed as a matter of law.that the trustees performed their duty, tlie presumption necessarily must prevail on demurrer or motion to strike out, when no additional matters are pleaded justifying the withholding of the title, notwithstanding allegations to the contrary and the rule that all relevant matters well pleaded are admitted as true. Olden v. Hubbard, 34 N. J. Eq. 85.
The answer will be stricken out, with costs, and the complainant may take a decree.