Tinnen v. Mebane

• Decision Date: 01 January 1853
• Parties: TINNEN, GUARDIAN, v. MEBANE.
• Court: Texas Supreme Court

10 Tex. 246

TINNEN, GUARDIAN,

v.MEBANE.

Supreme Court of Texas.

1853.

All implied and constructive trusts, all which is cognizable at law, are subject to the bar of limitation, and equity applies the same limitation to equitable demands that is applied in analogous cases at law. It is only where the trust is the mere creature of equity, exclusively cognizable within that jurisdiction, and is a subsisting, continued, and acknowledged trust, that the statute has no operation. (Note 43.)

The doctrine that the trust must be exclusively within the jurisdiction of equity to save it from the statute has very little application in a system of jurisprudence where there is no exclusive equity jurisdiction and where the statute applies to all subjects within its provisions, irrespective of whether they involve legal or equitable rights and whether they be cognizable at law or in equity.

The portion of the rule which requires the trust, not barable by time, to be subsisting continued, and acknowledged, is of more universal application; and in all cases which come properly within the definition, and are not repugnant to either the express provisions or policy of the statute, there is no doubt that lapse of time would not be permitted to operate as a bar.

But even this rule loses its force when the trust is repudiated by acts or words of the parties. When, for instance, the trustee, in disregard of the cestui que trust, claims absolute ownership in himself, the latter will be barred by the statute of limitations and the rules in relation to the lapse of time in other similar cases. (Note 44.)

There is nothing in the laws of this State which would sanction negligence on the part of legatees or justify laches in the prosecution of a suit for specific legacy adversely claimed beyond the time limited for suits for the recovery of such property. (Note 45.)

In order that the claim of a trustee should be adverse, so as to enable him to invoke the aid of the statute of limitations and its analogies, it is not, it seems, essential that the cestui que trust should be informed of the existence of the trust or of his interest in the trust property. But see the particular circumstances of this case.

The statute of this State prescribes short periods generally for limitation; and where no provision of the statute is directly applicable, the limitation in analogous cases, if there be any such expressly provided for by the statute, will be applied; and if the matters in controversy be not analogous to any embraced in the statute, then the longest period of limitation known to our laws, which is ten years, will be the rule, on the same principle that authorizes twenty years in other States, from analogies to their statute, to be prescribed as the limit.

Error. George Mebane, a resident of Williamson county, Tennessee, having made his last will, departed this life in 1818. His will was proved and recorded in open court, in the said county, in the same year, by Alexander Mebane, his brother and executor. The will contained several bequests to the children of this Alexander, and among others was one to his daughter Louisa, of a negro girl named Nancy. The property went into the possession of Alexander on the death of his brother George, the testator, and continued in the possession of Alexander until his death, more than thirty years subsequent to the proof of the will; and on a partition of the said Alexander's estate the girl Nancy, with her children, was treated as belonging to his succession, and was, on distribution, assigned to the present defendant. The daughter Louisa was about nine or ten years of age at the proof of the will; and in 1834, being then about twenty-five years of age, she intermarried with Lawrence W. Tinnen, and some time afterwards removed to Texas. Her father subsequently also removed. Lawrence W. Tinnen died in 1845, leaving his wife Louisa and the minor children (now suing by their guardian) surviving. Louisa, the wife, died in 1849; but before her death there was a partition of her father's estate, in which she participated, and in which the girl Nancy and her children were treated as belonging to the estate of the father, Alexander, and, without objection on the part of said Louisa, were assigned in distribution to the present defendant. This suit was instituted in 1851, some two years after the death of Louisa and thirty-three years after the record of the will by the plaintiff as guardian of the children of Lawrence W. and Louisa Tinnen.

The suit was brought for the recovery of the slave Nancy and her children, as being the property of the mother of the wards of the plaintiff, by virtue of the bequest to her in the will of the said George Mebane, deceased. The plaintiff charged Alexander Mebane with disregarding his trust as executor, in failing and refusing to deliver the said negro girl to the said Louisa or the said Lawrence W., but fraudulently kept her in his own possession, claiming her in his own right up to the day of his death, and concealed from the knowledge of the said Lawrence W. and the said Louisa the existence of the said will. The defendant pleaded limitation and estoppel, in this, that after the death of Alexander Mebane his heirs, including the said Louisa, agreed to divide his estate; that the negroes in controversy were disposed of as his part of the assets, so declared by all the heirs, including the said Louisa, who was present, assenting to the same, and that the defendant received the same with the assent of said Louisa, and that since the death of the said Louisa the division had been ratified and confirmed by the present plaintiff.

There was some controversy as to the submission of issues upon the facts to the jury, the refusal of the court to receive a general verdict for the defendant, which need not be detailed, as it will not form the subject of special comment. It resulted in the submission of such issues as admitted of a direct affirmative or negative response.

The last issues, if severely scrutinized, might, perhaps, be obnoxious to some criticism, as not being, in some particulars, as favorable to the defendant as the pleadings on the part of the plaintiff would have authorized. One of the issues was whether the plaintiffs were the true and only heirs at law of Lawrence and Louisa Tinnen. This was consistent with the pleadings; but on the facts as alleged it was immaterial whether the plaintiffs were the only heirs at law of Lawrence W. Tinnen or not, except to show the authority of the plaintiff to bring the suit. Their claim is through their mother, and their heirship through her was the material fact for inquiry. Fourteen issues were presented to the jury, which it is not necessary to recapitulate. The only fact found in addition to those stated, believed to be of much importance, was that Louisa Mebane was, through life, ignorant of the bequest in her favor under the will of her uncle, but that no fraud was used by her father, the executor of the will, to conceal the fact from her.

On the special verdict judgment was rendered for the defendant.Jennings and Milwee, for plaintiff in error. I. The general doctrine is unquestionable that express trusts, as between trustees and cestui que trust, cannot be reached by the statutes of limitation. (Angell on Lim., cap. 16, secs. 1, 2, &c., p. 161, et seq.; Id., cap. 35, sec. 1, p. 507.) Executors and administrators not only belong to this class (of trustees,) but they are the most common instances of such trustees. (Id., cap. 16, sec. 3, p. 163.)

II. Where the trustee keeps the cestui que trust in ignorance of his right to the trust fund or property, or the latter in fact remains thus ignorant, this statute will never run against him. (Latter part of section last cited.) Even where actions at law against executors and administrators are barred by a statute of limitations, fraud and concealment take a case out of such a statute. (Id., cap. 16, sec. 5, p. 167; Id., sec. 7, p. 169.)

III. The rule that the statute will begin to run from the time a trustee repudiates the trust applies only where the trustee sets up “a public adverse claim against his cestui que trust,” and of course is repelled by the continued ignorance of the latter of his rights. (Id., cap. 16, sec. 9, p. 171.)

IV. The devolution of the trust property on the executors or administrators of the trustee does not change its trust character, if from its nature it can be separated from the property of the executor, &c., and does not set the statute in motion against the cestui que trust. (Id., cap. 16, sec. 12, p. 173.)

Even an express statute law in favor of executors and administrators only reaches the demands of creditors, and does not affect claims on specific property held by the deceased in trust for other persons. (Id., cap. 16, latter part of sec. 5, p. 168.)

V. Heirs or distributees of the trustee are of course in no better situation when they receive the trust property than executors or administrators. Like the latter they are mere volunteers; they take only the property of their ancestors or his interest therein, and subject to all trusts to which it was subject in his hands, even general liens for the payment of debts, &c. No change of the property from the hands of the trustee into those of third persons will “break the trust,” except into those of an innocent purchaser without notice. (1 Cruise Dig., cap. 4, secs. 9, 10, 12, 13, 14, p. 487-8-9.)

VI. “Estopped by the distribution, and Mrs. Tinnen's being a party to it.” In regard to this alleged law of our rights, we have only to say that no man can be estopped by an act done in ignorance of the facts constituting his right to the property, or even claim to it in reference to which the estoppel is set up, and especially one who is fraudulently kept ignorant by the party claiming the benefit of the estoppel.

We ask of the court here such a decree on the special verdict in favor of the...