Percy v. Cockrill, 99.

• Decision Date: 23 January 1893
• Docket Number: 99.
• Citation: 53 F. 872
• Parties: PERCY v. COCKRILL et al.
• Court: U.S. Court of Appeals — Eighth Circuit

53 F. 872

PERCY v. COCKRILL et al.

No. 99.

United States Court of Appeals, Eighth Circuit.

January 23, 1893

Statement by SANBORN, Circuit Judge:

This is an appeal from a decree of the court below sustaining a demurrer to, and dismissing the appellant's bill in equity. The bill was filed January 15, 1891, and alleges that appellant's father, William Armstrong, died testate June 13, 1847, leaving surviving him three sons and three daughters. That he died seised of a plantation containing 1,663 acres of land adjoining Pine Bluff, Ark., and a large number of slaves, and some other personal property, then on the plantation. That his will, which was duly probated, was as follows:

'In the name of God. Amen. I, William Armstrong, being of sound mind, in view of the uncertainty of human life, do hereby make and declare this my last will and testament, in the words following, to wit: First. I hereby bequeath and devise all my estate, real and personal, including all my effects of every description whatever, subject to the limitations hereinafter set forth, to my sons, James Trooper Armstrong David I. Armstrong, and Frank Wells Armstrong, whom I constitute and appoint my sole executors. Second. It is my wish and desire that my plantation below Pine Bluff including the adjoining lands and all the appurtenances should not be sold or disposed of, but remain and continue as at present, to be, together with my negroes and all my other effects, under the joint management and control of my executors aforesaid; not to be divided, but to remain as an entire estate until my son Francis becomes of age; and, in the event of either of my said sons dying without issue before that, the survivors or survivor to succeed as heirs and executors. Third. Having full confidence in my sons aforesaid, and in their disposition to deal justly and liberally, I leave it to them to make proper and suitable provision for their sisters, Susan, Margaret, and Nancy. Fourth. It is my wish and desire that my grandson, William Armstrong Cocke, be brought up at the cost and expense of my estate. In witness whereof, I have hereunto set my hand and seal, on this 10th day of June, 1847.'

That the sons named in the will deemed the legal title and beneficial ownership of the property devised by this will in themselves, and proceeded to borrow money for their several individual purposes, and to secure the payment thereof mortgaged the property in 1849, when the youngest son, Frank had attained his majority, for $10,000, and in 1854 for $30,008.64. That in February, 1856, they sold, and undertook to convey, by a deed made in their own right, and as executors of the will of their father, to the late defendant Sterling R. Cockrill, the undivided two thirds of the property, in consideration of $13,000, to be paid by him to James T. Armstrong and Frank W. Armstrong, and the assumption by him of two thirds of the debts of the estate and of the incumbrances then upon the property; and that in May, 1858, David I. Armstrong, who had married a daughter of Mr. Cockrill in 1853 or 1854, and who claimed to own the remaining third of the estate, and his father-in-law, made a partition between themselves of the entire property and estate. That a portion of this land has since been platted as Cockrill's addition to the city of Pine Bluff; and more than 60 persons are made defendants, who claim title to, or liens upon, some of it, under Mr. Cockrill and David I. Armstrong.

The bill alleges that the late defendant Cockrill, before and when he purchased the two-thirds interest in this property, knew that the young Armstrongs were expending and wasting the estate; that the mortgages they had executed thereon did not secure any debts of the deceased, William Armstrong; that none of the moneys they derived therefrom, or from their sale to him, went, or were intended to go, to the complainant; that they had made no suitable provision for her, and did not intend so to do, but had expended, and intended to expend, the moneys they derived from the estate, in utter disregard of the will, and the trust in complainant's behalf thereby imposed, and that they did not intend to provide for her out of the one third of the estate remaining unsold.

The bill also alleges that Susan Armstrong died intestate and without issue in 1852; that Margaret died intestate in 1856, leaving an infant son by her husband, Barrow; that neither of these daughters had attained their majority when they died; that the three brothers subsequently died insolvent; that at the time of her father's death the complainant was 11 years old; that for a few years thereafter she resided on the plantation; that she was then sent to Maryland to school, and at the age of 19 took up her residence in Nashville, Tenn., with relatives, where she resided until she was married, on February 23, 1858; that she attained her majority in 1857; that her husband died July 19, 1888; that she and her sisters were supported and educated during their minority by her brothers; that 'she was kindly and tenderly raised, in a manner befitting her station in life, and the relations between her brothers and herself were of the most affectionate character,-- questions of property or money matters were never discussed between them,'-- and that she was entirely ignorant of all the mortgages, conveyances, and transactions set forth in the bill until the winter of 1858-59, when she and her husband went to Arkansas to visit her brothers; that she then learned for the first time that the late defendant Cockrill was in the possession of her father's home, claiming to own the same; and that it was only recently that she discovered the other facts set out in the bill.

The relief sought by this bill is a decree that the complainant is entitled to an undivided one fifth of each lot and tract of land that belonged to William Armstrong at his decease, in 1847, and a judgment against each of the defendants for one fifth of any rents, profits, or personal property they have respectively received from any property that he then owned.

The grounds of the demurrer were that the bill did not show that the complainant was entitled to any relief; that the suit was barred by the statute of limitations; that the complainant was barred from prosecuting her suit by her laches; and that it appeared from the bill that, if she had any right of action, she had an ample remedy at law. The only error assigned is that the court below sustained the demurrer and dismissed the bill. After the commencement of the suit the defendant Sterling R. Cockrill died, and the cause was revived in the name of Sterling R. Cockrill, Jr., as his executor and trustee.

J. M. Moore, for appellant.

U. M. Rose, (G. B. Rose, on the brief,) for appellees.

Before SANBORN, Circuit Judge, and SHIRAS, District Judge.

SANBORN Circuit Judge, (after stating the facts.)

The first question suggested by this record is,-- conceding for the present that this will created a trust in favor of the complainant which charged the property devised to her three brothers with the burden of making suitable provision for her; that this cause of action did not accrue until she discovered the late defendant Cockrill in possession of her father's home in 1858, claiming to own it under the conveyances from her brothers to him; and that the charges of his knowledge of the violation of this trust, and of his collusion with those brothers to violate it, through these conveyances, contained in the bill, are sufficient to charge the real estate in his hands with the trust in complainant's favor, without stopping now to consider or decide the questions these propositions present,-- can the complainant at this late day maintain this suit?

The will which created the charge or trust on which this bill is founded was probated in 1847. The sale under it to the late defendant Cockrill, which complainant now avers charged him as a constructive trustee for her benefit, was made in 1856. The complainant and her husband had full notice of it, and knew that under it Cockrill was in possession of her father's home, claiming to own it, in 1858. Twenty-three years after she received this notice, and on the 15th day of January, 1891, she filed this bill, and then first complained, so far as the record shows, that the mortgages and deeds made by her brothers, as devisees and executors of their father's will in 1849, 1854, and 1856, were violations of the trust imposed on them by the will, and constructive frauds upon her rights. That these brothers made suitable provision for her sisters until they died; that they provided her with a liberal support and education during her minority, and kindly and tenderly raised her, in a manner befitting her station if life,-- her bill alleges. That they were ignorant that, in the execution of the mortgages and deeds now complained of, they were violating any provision of the will, and believed themselves to be the legal and beneficial owners of all the property of the estate under this will, and that they had the right to mortgage, sell, and convey it as their own, the bill admits. All these brothers died insolvent years ago. The sisters Susan and Margaret have been dead for 20 years. The purchaser, Cockrill, died since this suit was commenced. None of the six children named in the will are now living but the complainant; and probably no one but the complainant now knows, if indeed she does, how liberal and expensive were the provisions made by the brothers for the support and education of the complainant and her sisters. Some of the land which these brothers conveyed to the late defendant Cockrill in 1856 has become a part of a city, and doubtless all of it is greatly enhanced in value. So general has been the...