Chase v. Cartright

• Decision Date: 07 June 1890
• Citation: 14 S.W. 90,53 Ark. 358
• Parties: CHASE AND OTHERS v. CARTRIGHT AND OTHERS
• Court: Arkansas Supreme Court

14 S.W. 90

53 Ark. 358

CHASE AND OTHERS v. CARTRIGHT AND OTHERS

Supreme Court of Arkansas

June 7, 1890

APPEAL from Crittenden Circuit Court in Chancery, J. E. RIDDICK Judge.

Affirmed.

W. M Randolph for appellants.

1. Under the will the executors had no power to sell the lands. They were to be kept, and the income disbursed as prescribed by the will. Schouler, Ex. & Adm., secs. 212, 509; Mansf. Dig., ch. 1, sec. 14; 29 Ark. 418; Perry on Trusts, secs 764-6-7.

2. Cannavan alone could not execute a valid deed to Hodges, and his deed passed no title. Perry on Trusts, secs. 783, 343, 496, 497, 499, 505; 31 Ark. 539; 4 Edw., Chy., 613; 6 Johns. 73; Mansf. Dig., sec. 647.

3. Asa Hodges had been appointed administrator in Arkansas of the estate of Daniel Hughes, and there was no order of the probate court removing him. The deed to him was void. 29 Ark. 419.

4. The plaintiffs are not barred. Their right of action did not accrue until the death of the Darragh children. Mansf. Dig., sec. 4471; Greenl. Ev., sec. 41, and note 5. The statute does not run against a remainderman pending the life estate. Wood on Lim., sec. 259, p. 527; 22 Ark. 567; 35 Ark. 84; 42 Ark. 357.

The executors were not trustees of Mrs. Higgins and Winters, but they took as residuary devisees under the will, on the death of Daniel Darragh, and not before. 31 Ark. 400-410; 6 Wallace, 458; 3 Sneed, 231; 2 Swan, 386; 1 Sneed, 304; 2 Head, 703; 4 Cold., 20.

5. Appellants are not barred to foreclose the lien reserved in the deed for the purchase money. 37 Ark. 511; 43 Ark. 504; 43 Ark. 469; 4 How., 289.

6. The presumption is that the debts have all been paid and the estate settled, and Mrs. Winters and Mrs. Higgins had the right to recover in their own right. 11 S.W. 100; 51 Ark. 235.

W. G. Weatherford for appellees.

1. Chase, the administrator de bonis non, neither proves nor avers any interest in the suit. The original administration was granted twenty-one years before this suit, and no good reason given for the delay. So far as he is concerned, there is no case. 37 Ark. 155; 13 Ill. 171; 6 Johns. Chy., 360.

2. It is not necessary for a foreign executor to take out letters testamentary, but only that a copy of the will be properly probated and recorded. 29 Ark. 418. The executor had the same power of sale in Arkansas that he had in Tennessee.

Power to sell is found in the will, and not in the letters testamentary. 31 Ark. 181; 34 Ark. 462.

The language of the will clearly gives the power to sell. Any words which show an intent to create the power, or which impose duties which cannot be performed without a sale, will be sufficient. Perry on Trusts, 766.

Cannavan, as the only surviving trustee, had the power to sell. Mansf. Dig., sec. 647; Perry on Trusts, 343, 783, 502, 496-7, etc., 505.

From the date of the deed in October, 1866, the purchasers have held adversely, and both the trustees and cestuis que trust are barred. 30 Ark. 249; 42 Ark. 25; 3 Wash. R. Pr., ch. 2, sec. 7, par. 46 a. Adverse possession, as against a trustee for the requisite period, bars both the trustee and cestui que trust. 8 Humph., 563; 9 Humph., 550; 10 Humph.; 88; 2 Swan, 387; 1 Sneed, 309; 5 Sneed, 247; 1 Sneed, 297; 2 Head, 69. Where parties claim the benefit of a disability, the onus is on them to show that their suit is within the statutory limit. 27 Ark. 343; 52 Ark. 168.

An equitable lien is barred by the statute, herein differing from a mortgage. 43 Ark. 488; 41 Ark. 525. The claim is stale. 46 Ark. 33; 42 Ark. 289; 7 How., 207; 12 How., 209; 96 U.S. 611; 99 U.S. 201; 52 Ark. 168.

OPINION

HEMINGWAY, J.

The appellants, as residuary devisees and legatees under the will of Daniel Hughes, deceased, brought this suit.

Daniel Hughes died resident in Shelby county, Tennessee, on the 10th of February, 1862, seized of the land in controversy. By last will, which was duly admitted to probate in that county in March, 1862, he disposed of his estate as follows: "All my real and personal estate I give in trust to my executors for the purpose of disposing of it to the best of their judgment, for the support and education of my two children, the children of Eliza Darragh, and the support of the said Eliza. For that purpose they are to give the said Eliza one thousand dollars a year until the eldest child is nine years old (it is now nearly two), and if either of the children should die before then, there shall be no change made as to the amount of a thousand dollars a year. Should both children die before they are of age, Eliza Darragh is to receive out of my estate five hundred dollars a year during her life. Should the net income of my estate be two thousand dollars a year, after paying the legacies hereinafter mentioned, I wish my father to have five hundred dollars a year of this income during his life, and if my mother out-lives him, she is to receive it after his death. The residue is to be invested in Memphis City bonds until the children, or the survivor of them, is sent to college. I desire my executors to exercise their best judgment in the selecting of a suitable school, and to be liberal, if the means are in their hands to procure them a good education. But my executors are requested to check and stop the supplies if they should be satisfied there is extravagance by the children, and to pay no bills of theirs not authorized by the executors before contracted by the child, or children; I wish the children plenty, but not waste." And the following: "In the event of the death of both of my children, mentioned above, before they have a child, or children, to inherit to them, I give to Elizabeth Higgins and Mary Ann Hughes all my estate remaining, except the annuities as above mentioned." And the following: "I appoint James Hughes (my father), Wm. Park and John Cannavan the executors of my will. I know it is an unpleasant task, but I would render either of them any service in my power. They are to be required to give no security, for they will not abuse their trust."

Of the parties named as executors, James Hughes never qualified and William Park, who qualified, resigned in 1865. John Cannavan, the remaining executor, died in 1877, without, as it appears, having resigned or concluded his trust.

The will was duly admitted to probate in Crittenden county, this State, on the 2d day of March, 1866. There seems to have been at different times a scrambling administration of the estate, conducted by various parties under appointment from the probate court in that county; but, in the view of the case taken by us, it is unnecessary to consider the legal aspect or effect of the administration in this State. It was characterized by unseemly conduct, which can not be contemplated without condemnation.

On the 16th of October, 1866, John Cannavan, the only acting executor, sold and conveyed to Asa Hodges the land in controversy for $ 1,280 in cash and $ 1,280 payable twelve months after the date thereof, to secure which a lien was expressly reserved in the face of the deed. The appellees claim title by purchase from Hodges.

Lizzie Darragh, one of the children named in the will, died before the testator; Eliza Darragh, her mother, died in 1865; Daniel Darragh, the second child, left his residence in Memphis about 1870, and was not afterwards heard from by his relatives or friends, and is presumed to be dead. He was unmarried, and died without a child to inherit from him. The appellant, Mary Ann Winters, was a married woman when Daniel Darragh died, and so continued to the bringing of this suit.

The appellants seek (1) to recover the land conveyed by Cannavan, as executor, to Hodges; but, in the event that they are not entitled to that relief, they seek (2) to recover the sum of $ 1,280 with interest, being the unpaid installment of purchase money secured by him on the land, in the deed above mentioned. In support of their claim they say (1) that the will did not confer a power of sale on the executors; (2) that the power conferred could not be executed by one only of the executors; and (3) that a sale was authorized only upon stated conditions, which did not exist when it was made.

The appellees insist (1) that a power of sale was conferred by the will; (2) that it was duly executed; (3) that they purchased in good faith, and entered immediately into possession of the land, that they had continually held it for seventeen years, claiming title against the world, and that they had good title by limitation; (4) that the installment of purchase money was paid; and (5) that it was barred by limitation. The proof sustained their contention as to their possession of the land. There was trial by the court, and judgment for the defendant.

It is insisted that the judgment is wrong, and should be reversed for many reasons pressed upon our attention. In the view we have taken, it is essential for us to consider only the defense of limitation and such other matters as are involved in its correct determination.

The appellants contend that, until the death of Daniel Darragh, they had no right in possession, but only in remainder; that they were not entitled to bring any suit either for the land or the purchase money during his life; that the statute was not set in motion against them until he died, and that they brought this suit in apt time thereafter. If mistaken in that contention, their claim to the land must fail against the plea of limitation. Is it correct? Our answer must depend upon the construction of the will, for it makes a great difference whether the executors are held to have acquired the legal title for life or in fee.

The language of the will leaves no room for doubt as to the wish of the testator in that regard. His purpose as to the disposition of...