Newman v. Newman
| Citation | 55 S.E. 377,60 W.Va. 371 |
| Parties | NEWMAN et al. v. NEWMAN et al. |
| Decision Date | 23 October 1906 |
| Court | Supreme Court of West Virginia |
Submitted March 13, 1906.
Syllabus by the Court.
The will below does not vest in the widow an absolute fee estate but vests in her a life estate, and creates a trust in her as trustee for the benefit of her children.
The defense of laches, though not applying, as a general rule, to an express trust, does apply to a constructive trust.
Where a trustee holding under an express trust uses the trust property in the purchase and conveyance of land to another in violation of the trust and with notice of it, it creates a constructive, not an express, trust in that third person, and laches will apply in favor of such person as a defense against the enforcement of such trust.
The statute of limitations, for want of adverse actual possession, does not apply in favor of one claiming coal in state of nature in place not developed.
Appeal from Circuit Court, Mason County.
Bill by I. V. Newman and others against W. C. Newman and others. Decree for plaintiffs, and defendants appeal. Reversed, and bill dismissed.
John E Beller and Rankin Wiley, for appellants.
John W English, W. R. Gunn, and C. E. Hogg, for appellees.
Isaac Newman died in 1836, leaving a will and a large estate, consisting of various tracts of land and slaves and other personal property. His will contained the following provisions: He left a number of children. Mary Newman, the widow, made deeds to different children of different tracts of land vested in her by the will, and by her will devised other lands to some of the children, leaving out W. W. Newman, her son. To her said son she conveyed the half of the home farm of 384 acres. The controversy in this case arises from the fact that the widow, Mary Newman, conveyed to Luman Gibbs a small tract of land vested in her by her husband's will in exchange for the coal in a tract of 400 acres of land owned by Gibbs, and Gibbs conveyed said coal to W. W. Newman. Thus Mary Newman purchased said coal with land which she derived under her husband's will. I. V. Newman and others, as children and grandchildren of said Isaac Newman and Mary Newman, brought a chancery suit against the heirs of W. W. Newman, claiming that, as the said 400 acres of coal was purchased with land of the estate of Isaac Newman, it was a trust estate in the hands of W. W. Newman for the common benefit of all those interested in the estate of Isaac Newman; that Mary Newman held the land which she conveyed to Gibbs in trust for the benefit of the children of her husband; and that W. W. Newman was well aware of such trust, and took the deed for the said coal with notice of such trust, and therefore held it subject to their rights, and asked a partition thereof for the common benefit of all entitled under the will of Isaac Newman. The circuit court of Mason county sustained the plaintiffs' claim, holding the land in the hands of the heirs of W. W. Newman to be still subject to the trust created by the will, and imposed upon Mary Newman as trustee under it, and decreed that the said coal be partitioned. From this decree the heirs of W. W. Newman have appealed.
The first question that arises in the case is this: The defense contends that the will vested in Mary Newman an absolute estate in fee for her own absolute use, to be conveyed away as she might choose, without any account to the children of her husband; while the plaintiffs claim that the will created an express trust in Mary Newman, by which she held the estate in trust for the benefit of the children of her husband, saving a life estate to herself. The defense relies upon that rule of law given in many decisions, that where a will devises land to a person to dispose of at his pleasure, such devisee has the absolute property, even though his interest is called by the will a "life estate," and there is a provision whereby what may remain undisposed of at the death of the devisee goes to another person. Melson v. Cooper, 4 Leigh (Va.) 408; Milhollen v. Rice, 13 W.Va. 519; Wilmoth v. Wilmoth, 34 W.Va. 426, 12 S.E. 731; Englerth v. Kellar, 50 W.Va. 259, 40 S.E. 465; Brown v. Strother (Va.) 47 S.E. 236; Cole v. Cole, 79 Va. 251; Hall v. Palmer (Va.) 12 S.E. 618, 11 L. R. A. 610, 24 Am. St. Rep. 653; Burwell v. Anderson, 3 Leigh (Va.) 348. But we hold that this doctrine does not apply to this case, because we think that it is plain that, though the testator intended to give the widow a support out of the whole estate, yet he did not intend her to consume the whole for her own purposes, but intended to vest in her the property for the benefit of her children. The will gives her a power of disposition, it is true, and that generally carries the absolute ownership; but if the will evinces a different purpose, that power of disposition does not have that effect. In this case the will, while giving a power of disposition to the widow, yet declares that it is to be exercised for the benefit of the children, naming them. It does not say that she shall exercise the power of sale for her sole use, or that she may consume the proceeds. The will says she shall only exercise the power of disposition "when it shall be for the benefit of the family." This shows a restricted power of disposition. It shows that it can only be exercised for the benefit of the family, widow and children together. The very clause constituting the devise--the vital devising clause-- tells that the devise to the widow is for the common benefit of the entire family. Moreover, the will makes the devise subject "to the possibility that she should become the wife of another man; in that event she is to surrender my childrens' property as before named to my brother-in-laws." Now here the testator calls the property "my childrens' property," and provides for the widow's estate to end on her remarriage. If he intended to give her complete ownership, why this provision? We cannot help thinking that, while the testator intended to provide amply for his wife out of his large estate, he yet remembered that he had children to be provided for. He reposed full confidence in his wife to deal justly with his children; even in that clause he manifested an intent that his wife should care for and protect his children with the property vested in her. We deem it hardly necessary on this point to cite authority, since it is only a question of the purpose of Newman as manifested in his will; but I cite Cresap v. Cresap, 34 W.Va. 310, 12 S.E. 527, Milhollen v. Rice, 13 W.Va. 510, and Young v. Bradley, 101 U.S. 782, 25 L.Ed. 1044, as reflecting light on this particular matter. As the will gives power of disposition to the widow for the benefit of the children, counsel ask, who was to say when her act of sale would be proper? We answer, a court of equity, which has power to administer trusts and control trustees. If the will did confer absolute property upon Mary Newman, that would end the case, for she would have perfect right to exchange land which was derived from her husband for the coal, and give it to her son, W. W. Newman, free of any trust; but, as we deny that the will confers such absolute estate, we must go on with further questions arising in the case.
The plaintiffs properly claimed that the will created only a trust estate in Mary Newman, and they say that as Mary Newman held the land in trust, so did W. W. Newman, and so do his heirs. They say that there is no difference between the tenure of Mary Newman and W. W. Newman. It is undeniable that W. W. Newman, when Gibbs conveyed the coal to him, had full notice of the trust aforesaid. It is settled law that one acquiring trust property with notice of a trust from a trustee is himself a trustee, holding the property on the same trust under which his grantor held it. "A trust fund may be pursued by the beneficiary, as long as the same can be identified, into any land or other form of investment made by the trustee, as the law raises an implied trust as to such property in their behalf." Marshall v. Hall, 42 W.Va. 641, 26 S.E. 300. See Crumrine v. Crumrine, 50 W.Va. 226, 40 S.E. 341, 88 Am. St. Rep. 859; Reel v. Reel (W. Va.) 52 S.E 1023; Webb v. Bailey, 41 W.Va. 463, 23 S.E. 644; Heth v. Richmond R. R., 4 Grat. (Va.) 482, 50 Am. Dec. 88; Vance v. Kirk, 29 W.Va. 344, 1 S.E. 717; Barksdale v. Finney, 14 Grat. (Va.) 338. The many authorities sustaining this position are collected in that valuable work, American & English Decisions in Equity, vol. 2, p. 652, showing that trust funds may be followed up. Hogg's Equity Princ., 763, is full authority on this point. So the right of the plaintiffs to follow up this coal originally is very clear, but they are barred by great lapse of time. The conveyance of the coal to W. W. Newman from Gibbs dates August 16, 1853, and so does the deed from ...
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