Anderson v. Northrop

• Decision Date: 28 December 1892
• Citation: 12 So. 318,30 Fla. 612
• Parties: ANDERSON v. NORTHROP et al.
• Court: Florida Supreme Court

12 So. 318

30 Fla. 612

ANDERSON v. NORTHROP et al.

Florida Supreme Court

December 28, 1892

Appeal from circuit court, St. Johns county; James M. Baker, Judge.

Action by Henry P. Northrop and others against Andrew Anderson to compel defendant, as executor of his mother's estate, to account for all property which came into his mother's hands as executrix of the estate of Andrew Anderson, Sr. From a judgment for plaintiffs, defendant appeals. Modified. Rehearing refused.

Syllabus by the Court

SYLLABUS

1. A died in 1839, leaving a will, of which C., his surviving widow, was made sole executrix, and by which she was given a life estate in all of his property, real and personal, with remainder over in fee to all of his children, share and share alike. There were four children,--three by the testator's first marriage, and one by his surviving widow. C., as executrix, took possession and control of all of the properties, and died in 1881, without having been discharged as executrix, and died in possession of a considerable portion of the realty of her testator and some of the personalty in kind. At her death she left a will, by which her son, who was also one of the remainder-men under her testator's will, was made her sole executor and devisee of her estate. In 1882 the heirs at law of A.'s children by his first marriage brought suit in equity against C.'s executor for an accounting generally for all the properties that went into her hands as executrix of A.'s will, and for restitution of their respective shares thereof under said will. The suit was resisted on the ground that C., as executrix, in 1851, under an order of the probate court, had sold the realty for the payment of debts of the estate of A and that F., at such sale, had purchased the property, and shortly afterwards had reconveyed it to her in fee in her own individual right; that the rights and interests of the complainants as reversioners under A.'s will were thereby extinguished; and that the complainants were barred of any remedy by the express provisions of the statute of limitation, and also by laches. Held, that C., as executrix of A.'s will, was trustee of an express or direct trust and that, as she had never been discharged as such executrix she continued to be such trustee up to the date of her death and that her executor, after her decease, became trustee in her stead, and was charged with all of her responsibilities and liabilities as such trustee; and that the relief sought against her and her successor in the trust by the cestuis que trustent was expressly exempted from any bar of the statute of limitations. Held, further, that because of the fact that C., under A.'s will, was executrix thereof, and had the right to a life estate in all of his property, and did in fact continuously possess the same from the time of his death to the date of her own decease, the complainants, as remainder-men and cestuis que trustent, had the right to look upon her continuous possession of the properties as being in right of her executorship, or in right of her life tenancy as created by such will, and were thereby excused, until after her decease, from making inquiry or search for any other title in her than the one by which she first took such possession; and that they were not in laches for their failure until after her decease to assail a title hostile to their own, acquired by her during her lifetime, and while she was trustee over the same, in the absence, at least, of clear proof that they had prior actual knowledge of the repudiation by her of her trust and rights as life tenant, and of the acquisition and assertion by her of such adverse title in herself; and that the onus of proving such actual knowledge in them is upon the party urging laches as a defense.

2. Where the allegations of a bill filed by the heirs of an estate against the executrix thereof for an accounting, when considered as a whole, charge that more than enough personal assets went into the executrix's hands to pay all lawful debts of the deceased without resort to the realty, and that the executrix wasted the estate, and absorbed and appropriated its properties to herself individually, and purchased properties in her own name with its assets; and that she had no property of her own except such as she derived from the estate; and that, while the estate was wasting away, she was purchasing valuable properties in her own name; and that she procured an order from the probate court for the sale of the realty of the estate for the alleged purpose of paying debts thereof, and under said order did sell the same; and that her intimate friend and counselor bid off the property at such sale for $1,640, and within a few days thereafter reconveyed the same property to her individually for an expressed consideration of $1,660; and that said transactions were contrived to defeat the will of her testator,--such allegations sufficiently make out a case of fraud in reference to the property thus acquired by the executrix to require an answer from her, and to authorize inquiry by the court into the transactions mentioned, and, if sustained by the proofs, to warrant relief.

3. Where a party holding the legal title as trustee to real estate dies, his executors become clothed with his duties and responsibilities as such trustee, and they are proper parties to any litigation affecting the rights of their cestui que trust in the subject-matter of the trust.

4. Where a reversionary estate remains in the possession of the executrix of such estate, who, by the will creating the reversions, is also given a life tenancy in such estate, the statute of limitation will not run against the remaindermen in favor of an adverse title acquired by her to the properties held in trust or as life tenant until after her decease, unless, at least, there be clear proof of prior actual knowledge brought directly home to them of the repudiation by her of her trust, and of the abandonment by her of her claims as life tenant, and of the acquisition and open assertion by her of such adverse title.

5. No valid final discharge can be granted by the county or probate court to an executor or administrator until after six months' notice of the intended application for such discharge has been duly published in one or more gazettes or newspapers published nearest the place where the letters were granted. The publication of such notice by posting, the law does not contemplate or recognize.

6. Laches is a neglect to do something that by law a man is obliged or in duty bound to do. The application by the courts of the doctrine of laches depends upon the circumstances of each particular case.

7. In cases of continuing trusts that are strictly such, and recognized and enforced in courts of equity only, so long as the relation of trustee and cestui que trust continues to exist, no length of time will bar the cestui que trust of his rights in the subject of the trust as against the trustee unless circumstances exist to raise a presumption from lapse of time of an extinguishment of the trust, or unless there has been an open denial or repudiation of the trust brought home to the knowledge of the cestui que trust, which would require him to act as upon an asserted adverse title.

8. Where the heirs of an estate neglect to institute proceedings for an accounting against an executor for more than 40 years after the executor qualifies as such, and until after such executor is dead, and until all witnesses conversant with his actings as executor are dead, and until the record and other evidences of the administration have been lost or destroyed laches will be attributed to them to the extent that the court will deny them a strict and minute accounting from such executor for the personalty, at least of such estate that has disappeared, and of which no certain and positive accounting can be had.

9. Every fact essential to a plaintiff's title to maintain his bill and obtain the relief asked must be stated in the bill, otherwise the defect will be fatal. No facts are properly in issue unless charged in the bill, and no proofs can generally be offered of facts not alleged in the bill; nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence.

10. If sufficient personal assets go into the hands of an executor fully to pay all of the debts of the testator, then there is no necessity or authority in law for a sale of the estate's realty for the payment of debts; and if such executor, instead of applying the personal assets to the payment of debts, misapplies them to other purposes, and misappropriates them to his own uses, and afterwards procures an order for the sale of the realty for the payment of debts that should have been paid with the personalty, then, under such circumstances, such sale of the realty is a fraud in law as between such executor and the heirs at law, no matter how regular upon their face the proceedings for such sale may appear, and he should not be permitted to derive any benefit from such sale as purchaser of the property sold.

11. Where an executor purchases the property of a mortgagor at a tax sale thereof that is covered by a mortgage for a large amount due to the estate of his testator, and takes a tax deed thereto to himself in his own right, and then makes no effort to enforce the mortgage thereon that he holds as executor, such tax purchase held to be in trust, and to inure to the benefit of the heirs at law of the estate of such mortgagee.

12. Where an executor enforces in the courts a vendor's lien inuring to his testator's estate, and at the judicial sale under such proceedings purchased the property and took the title to himself individually, without...