199 Mich. 114 | Mich. | 1917
The administrator of the estate of John Rogers, deceased, brings up for review a judg
“*■ * * We all stood close, and she showed me the paper; she came and brought it out of the bedroom. I don’t suppose I can say what remark I made?
“Q. Yes; if her husband was there.
“A. He was right there. I says, T thought that was upstairs.’ She says, ‘No; it is there, paper there, showing’—
“Mr. Owen: I object to the conversation.
“A. ‘That there is $500 that Roy is to have when I die.’ And I says, ‘Well, have you got Mr. Rogers’ signature to it?’ I was always worried about that, for I had trouble. She says, ‘Yes.’ She wanted me to read the paper, but I hadn’t got time, and she held up the paper. I saw it with my own eyes. Mr. Rogers says, ‘We cannot give that to Roy when you died if you die before I die, because we have got to wait until we both die, and then Roy will get this.’
“Q. Did she say when he would get it?
“A. She said not until she was dead, and he said not until they were both dead.
“Q. Did she tell you that in his presence?
“A. Yes, sir.
“Q. Where did she say that money came from?
*118 “A. It came from her first husband.
“Q. For whom?
“A. To be for Roy when she was^ dead.”.
She also testified that she saw the signature of Mr.Rogers on this paper, and that it was his handwriting, the same as he signed to receipts for rent, and that Mr. Rogers admitted signing the paper; that after Mrs. Rogers’ death Mr. Rogers burned up some papers from the attic, and about a week later told her:
“I burned up every one of those papers, and the damned fool won’t get a cent (referring to plaintiff).”
The jury answered affirmatively the'following questions :
“Did John Rogers receive the sum of $500 from Ella Rogers, and agree with her to pay the same to Roy H. Pitcher at Ella Rogers’ death?
“Do you find that a written agreement was made with Mrs. Rogers binding the deceased to pay to Roy Pitcher the sum of $500 after her death?”
When we take the testimony of Mrs. Wilmarth in connection with all that appears in this record, it is clear that not only was a case made for the jury, but that the verdicts, both general and special, are not against the weight of the evidence. The case is not unlike that of Eipper v. Benner, 113 Mich. 75 (71 N. W. 511). In that case the wife of decedent had intrusted to him certain property with the understanding that he should will it to her nephew and niece. It was there said:
“The circuit judge was of the opinion that the admission of an 'understanding’ with his wife was not the admission of a promise, and that, if it can be said to amount to a promise, it was not based upon a consideration, because neither Mr. nor Mrs. Vogel was under any obligation to the claimants which would amount to a valid consideration. It is clear that the judge found that Vogel admitted that he had the sum*119 claimed .of his wife’s property, and that he had promised her to leave it to these children at his death. We are of the opinion that the facts found show that Vogel held this money in trust for these children by arrangement with his wife, and after his death it was the duty of the administrator to pay it over to them, upon allowance by the probate court.”
Defendant invokes the statute of limitations. It is not available. The money was not due until the death of .plaintiff’s mother, which occurred in 1913. Havens v. Church, 104 Mich. 135 (62 N. W. 149). The general rule is well recognized that the statute of limitations has no application in the case of an express trust. As against an express and continuing trust, the statute does not run until repudiation by the trustee and knowledge thereof brought home to the cestui que trust. Shepherd v. Shepherd’s Estate, 108 Mich. 82 (65 N. W. 580). As to repudiation by the trustee it is said by Mr. Perry in his work on Trusts and Trustees, vol. 2 (6th Ed.), § 864:
“It has been held, however, that if a trustee repudiates the trust by clear and unequivocal acts or words, and claims thenceforth to hold the estate as his own, not subject to any trust, and, such repudiation and. claim are brought to the notice or knowledge of the cestui que trust in such manner that he is called upon to assert his equitable rights, the statute will begin to run from the time that such knowledge is brought home to the cestui que trust, and he will be completely barred at the end of 20 years, if he has been sui juris, or under no disability, and is capable of bringing an action to maintain his right. To enable a trustee, without giving up the possession, to turn it into an adverse holding against the cestui que trust,, the evidence must .be clear and unmistakable, and such adverse claim must be brought home to the cestui que trust beyond question or doubt. The attitude of the trustee must be hostile, and continuously so; and there must be no mistake or misapprehension as' to the character of his holding by either party.”
Nor is there force in defendant’s contention that the proceedings should be instituted in a court of equity. No accounting was necessary. The trust estate consisted solely of money due the cestui que trust; it was a fixed sum, and there was nothing remaining to be done except the payment of that sum. There was no infirmity in the way of presenting his claim for this money to the commissioners on claims. Frank v. Morley’s Estate, 106 Mich. 635 (64 N. W. 577); Eipper v. Benner, supra.
Error is assigned on the following instruction found in the charge of the court:
“If you find that there was a certain instrument in writing executed by the deceased, John Rogers, showing that he was indebted to plaintiff in the sum of $500, as claimed by plaintiff, and if you find that deceased burned and destroyed this written instrument, then you have a right to take the fact of the destruction of this written instrument into consideration in passing upon the liability of the deceased to plaintiff for the said sum of $500.”
“His position is one where he is liable to the most unfavorable presumptions. He has unquestionably betrayed his trust and the court is bound to apply to him the maxim, ‘In odium spoliatoris omnia prxsumuntur.’ If a person is proved to have destroyed a written instrument, a presumption arises that, if the truth had appeared, it would have been against his interest, and that his conduct is attributable to his knowledge of this circumstance, and accordingly slight evidence of the contents of the instrument will usually in such a case be sufficient.”
The rule is thus stated in Jones on Evidence (2d Ed.), § 18:
“The wilful destruction, suppression, alteration, or fabrication of documentary evidence properly gives rise to the presumption that the documents, if produced, would be injurious to the one who has thus hindered the investigation of the facts.”
See, also, Murray v. Lepper, 99 Mich. 135 (57 N. W. 1097); Sullivan v. Sullivan, 188 Mass. 380 (74 N. E. 608); “Joannes” v. Bennett, 5 Allen (Mass.), 169 (81 Am. Dec. 738).
Finding no error upon this record, the judgment is affirmed.