Mi4 Justice MILLER,
delivered the opinion of the court.
The jdaiutiffs assume, as the foundation of their, bill, that by the true construction of the codicil as applied to the facts of the case, Jeanet Clarke took but a life estate in the real property of her father, or a life interest in the proceeds of the sale, so far as it may have been sold, and that their father, George Clarke, had a vested remainder or interest in the property so devised to Jeanet.
The first question, then, which naturally arises in the case as thus presented is, whether the construction which the plaintiffs place upon the codicil is the true one.
Very few classes of questions are more frequent or more perplexing in the courts than the construction of wills. If rules of construction laid down by the courts of the highest character, or the authority of adjudged cases, could meet and solve these difficulties, there would remain no cause of complaint'on that subject, for such is the number and variety of these opinions that every form of expression would seem to be met. Especially is this true of the question whether a vested remainder in interest is created after a particular estate, or whether the first taker has a fee simple or full ownership of ihe property devised. And, in point of fact, when such a question arises the number of authorities cited by counsel, supposed to be eqnelusive of the case in hand, is very remarkable. Unfortunately, however, these authorities are often conflicting, or arise out of forms of expression so near alike, yet varying in such minute shades of meaning, and are decided on facts or circumstances differing in points, the pertinency- of which are so difficult in their application to other cases, that the mind is bewildered and in danger of being misled. To these considerations it is to be added that of all legal instruments wills are the most in-artificial, the least to be governed in their construction by the settled use of technical legal terms, .the will itself being often the production of persons not only ignorant of law but of the correct use of the language in which it is written. Under this state.of the science of the law, as applicable to the construction-of wills, it may well be doubted if any other
source of enlightenment in the construction of a will is of much assistance, than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of the .testator by the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised with the testator and with the instrument itself.
These remarks are well illustrated in the case under consideration. It has been argued- fully by able counsel- on each side. Extensive reference has Been made to authorities, the result, of careful labor; but, after a full consideration of these, we prefer to decide the case on a point which is equally conclusive of the whole mattei’, which has been equally well presented, and about which we have no doubt or hesitation.
The transaction Avhich is charged upon Boorman as' a violation of his trust and a fraud upon the rights of George Clarke occurred in 1829. The minor, James Smith, had reached the age of twenty-five; the debts of the testator had all been paid, and the specific bequests of his will carried into effect. It seemed desirable to distribute the assets' on hand, consisting mainly of the unsold real estate, among the four children of the testator, for whom it was intended.
This was done first by the executors and the other three devisees conveying to James, in fee, certain real estate which was valued and agreed upon by the parties, and accepted by him as his full, equal one-fourth of-the estate of his father under the will.
Similar deeds were made to the three female devisees of the property agreed upon as the one-third part of their respective shares, which was, by the will, to be placed at their unconditional control. These deeds left in the hands of the executors two-thirds of each one-fourth devised to the daughters, in regard to which alone the question of life interest or absolute interest or life estate and remainder arises. The deeds afiovementioned are dated November 15th, 1829, and on the 26th day of December the two executors, Boorman and Clarke, and James Smith, Jeanet, Hannah, and Eliza
beth, and their husbands, united in a conveyance of all the remaining real estate to Bobert Dyson.
This deed recited on its face that it was made by the executors in pursuance of the power contained in the will, for the consideration of $64,710.59, paid by Dyson to Matthew St. Clair Clarke, one of the executors. On the same day Dyson, by conveyances to Jea'net, Hannah, and Elizabeth, conveyed to each of them parts of the real estate so conveyed to him, the three deeds covering it all, reciting the consideration at sums in each case as near one-third of the $64,710.59, the consideration of the deed to him, as could well be arranged. These were all deeds purporting to convey the title in fee; and the property has since passed into the hands of
bond fide
holders for value. We do not see in these proceedings any reason to believe that either Boormau or Matthew St. Clair Clarke was governed by a fraudulent design. No money was received by either of them. The $64,710.59, recited in the deed to Dyson, ás paid to Clarke, was evidently merely nominal, and was satisfied by his conveyances the same day, dividing the property couveye'd to him between the three daughters of the testator. The title to all the property came to him, aud the title to the specific portions of it passed to them without a dollar actually paid, and the whole of it was a plan carefully devised by a good lawyer, to close up the trust in the hands of the executors, and to partition the property among those supposed to be entitled to it. It does not appear that either Boorman or his lawyer ever believed that the son of Jeanet Clarke, then alive, had any vested interest iñ the property, and they could have had, therefore, no thought of defrauding him. It is said, in opposition to this view of .the matter, that the executors required and received a bond of indemnity, with mortgages -upon the property, to save them harmless in regard to this ■ violation of their trust. But we think it sufficiently appears ■by the evidence that this indemnity had reference to possibilities under supposable doubtful constructions of the will, other than such as gave to the son, George, any interest, cut off or discharged by these transactions.
We do not enter into the question whether the trustees so far departed from-their obligations to him under the will, as to make them legally or equitably liable to him for the injury arising from their misconduct; but we only mean to say, that we do nqt find in the record any evidence of positive, actual fraud with corrupt motive, nor of any effort to conceal what they did from him, or from any one else interested in the transaction.
The reason for not entering into t.he inquiry any further is, that the plaintiffs come too late.
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Mi4 Justice MILLER,
delivered the opinion of the court.
The jdaiutiffs assume, as the foundation of their, bill, that by the true construction of the codicil as applied to the facts of the case, Jeanet Clarke took but a life estate in the real property of her father, or a life interest in the proceeds of the sale, so far as it may have been sold, and that their father, George Clarke, had a vested remainder or interest in the property so devised to Jeanet.
The first question, then, which naturally arises in the case as thus presented is, whether the construction which the plaintiffs place upon the codicil is the true one.
Very few classes of questions are more frequent or more perplexing in the courts than the construction of wills. If rules of construction laid down by the courts of the highest character, or the authority of adjudged cases, could meet and solve these difficulties, there would remain no cause of complaint'on that subject, for such is the number and variety of these opinions that every form of expression would seem to be met. Especially is this true of the question whether a vested remainder in interest is created after a particular estate, or whether the first taker has a fee simple or full ownership of ihe property devised. And, in point of fact, when such a question arises the number of authorities cited by counsel, supposed to be eqnelusive of the case in hand, is very remarkable. Unfortunately, however, these authorities are often conflicting, or arise out of forms of expression so near alike, yet varying in such minute shades of meaning, and are decided on facts or circumstances differing in points, the pertinency- of which are so difficult in their application to other cases, that the mind is bewildered and in danger of being misled. To these considerations it is to be added that of all legal instruments wills are the most in-artificial, the least to be governed in their construction by the settled use of technical legal terms, .the will itself being often the production of persons not only ignorant of law but of the correct use of the language in which it is written. Under this state.of the science of the law, as applicable to the construction-of wills, it may well be doubted if any other
source of enlightenment in the construction of a will is of much assistance, than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of the .testator by the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised with the testator and with the instrument itself.
These remarks are well illustrated in the case under consideration. It has been argued- fully by able counsel- on each side. Extensive reference has Been made to authorities, the result, of careful labor; but, after a full consideration of these, we prefer to decide the case on a point which is equally conclusive of the whole mattei’, which has been equally well presented, and about which we have no doubt or hesitation.
The transaction Avhich is charged upon Boorman as' a violation of his trust and a fraud upon the rights of George Clarke occurred in 1829. The minor, James Smith, had reached the age of twenty-five; the debts of the testator had all been paid, and the specific bequests of his will carried into effect. It seemed desirable to distribute the assets' on hand, consisting mainly of the unsold real estate, among the four children of the testator, for whom it was intended.
This was done first by the executors and the other three devisees conveying to James, in fee, certain real estate which was valued and agreed upon by the parties, and accepted by him as his full, equal one-fourth of-the estate of his father under the will.
Similar deeds were made to the three female devisees of the property agreed upon as the one-third part of their respective shares, which was, by the will, to be placed at their unconditional control. These deeds left in the hands of the executors two-thirds of each one-fourth devised to the daughters, in regard to which alone the question of life interest or absolute interest or life estate and remainder arises. The deeds afiovementioned are dated November 15th, 1829, and on the 26th day of December the two executors, Boorman and Clarke, and James Smith, Jeanet, Hannah, and Eliza
beth, and their husbands, united in a conveyance of all the remaining real estate to Bobert Dyson.
This deed recited on its face that it was made by the executors in pursuance of the power contained in the will, for the consideration of $64,710.59, paid by Dyson to Matthew St. Clair Clarke, one of the executors. On the same day Dyson, by conveyances to Jea'net, Hannah, and Elizabeth, conveyed to each of them parts of the real estate so conveyed to him, the three deeds covering it all, reciting the consideration at sums in each case as near one-third of the $64,710.59, the consideration of the deed to him, as could well be arranged. These were all deeds purporting to convey the title in fee; and the property has since passed into the hands of
bond fide
holders for value. We do not see in these proceedings any reason to believe that either Boormau or Matthew St. Clair Clarke was governed by a fraudulent design. No money was received by either of them. The $64,710.59, recited in the deed to Dyson, ás paid to Clarke, was evidently merely nominal, and was satisfied by his conveyances the same day, dividing the property couveye'd to him between the three daughters of the testator. The title to all the property came to him, aud the title to the specific portions of it passed to them without a dollar actually paid, and the whole of it was a plan carefully devised by a good lawyer, to close up the trust in the hands of the executors, and to partition the property among those supposed to be entitled to it. It does not appear that either Boorman or his lawyer ever believed that the son of Jeanet Clarke, then alive, had any vested interest iñ the property, and they could have had, therefore, no thought of defrauding him. It is said, in opposition to this view of .the matter, that the executors required and received a bond of indemnity, with mortgages -upon the property, to save them harmless in regard to this ■ violation of their trust. But we think it sufficiently appears ■by the evidence that this indemnity had reference to possibilities under supposable doubtful constructions of the will, other than such as gave to the son, George, any interest, cut off or discharged by these transactions.
We do not enter into the question whether the trustees so far departed from-their obligations to him under the will, as to make them legally or equitably liable to him for the injury arising from their misconduct; but we only mean to say, that we do nqt find in the record any evidence of positive, actual fraud with corrupt motive, nor of any effort to conceal what they did from him, or from any one else interested in the transaction.
The reason for not entering into t.he inquiry any further is, that the plaintiffs come too late.
Whether we look to the statutes of limitations of the State of New York, governing such cases.in that State, and, of course, in this court; or to the more general and universal doctrines of courts of equity on the subject of the lapse of time, laches, and stale demands, we are of opinion that this suit cannot be.maintained.
The limitation prescribed by the statutes of New York for the recovery of real estate is twenty years in an action at law.
Where there is a concurrent jurisdiction in the courts of common law and in courts of equity, the limitation prescribed by the court of law shall govern the.court of equity.
Bills for relief in eases of trust, not cognizable by courts of law, are to be filed within ten years after the cause of action accrued.
Bills for relief on the ground of fraud, must.be filed within six years after the discovery of the fraud.
If this were a suit to recover the real estate devised by the testator, the action would be barred at law by the statute, because the right of action of the plaintiffs’ ancestor, George Clarke, accrued upon the death of his mother, in 1847, and this suit was commenced in 1869, more than twenty years afterwards. The bill of complaint does, in terms, ask this relief, that is, the possession of the property; and though this is impossible, because the property has passed beyond the control of the defendants, it would seem reasonable that when the plaintiffs ask, in the alternative, for such relief as the court can give instead of the property, the same rule of limi
tation should govern the courts of equity as would govern the courts of law; and such is the express declaration of the New York statute as regards concurrent remedies in courts of law and chancery.
But, as we have already shown, this is a bill for relief, if any relief can be granted in a case of trust not cognizable in .a court of law.- It is not for land in possession of the defendant, nor for money in his possession received for the use of the plaintiff's’ ancestor, nor for such money which ought to be in his possession, but it is for a well-defined violation of trust by -which plaintiffs’ ancestor lost the title to property which would otherwise have come to him on the death of his mother, and in failing to secure to him his reversionary interest, when they conveyed it as trustees. It is, therefore, a case falling within the limitation of ten years of the New York statute-; because it is a bill for relief in a case of trust not cognizable at law.
It is insisted, however, that in cases of fraudulent violation of trust no length of time will operate as a bar to a suit in equity; and some general expressions found in the language of the courts are much relied on.
These authorities‘are all based upon the proposition of actual intentional fraud practiced upon a
cestui que trust
by his trustee. We have already said such is not the case before us.
The statute we have referred to as governing this case makes no such exception, though it is, in terms, applicable alo'ne to cases of trust and'to suits in equity.
That statute does, however, contain an exception to the general rule of limitation .of ten years, which it prescribes. It ‘is that bills for relief on the grouhd of fraud must be filed within six years after the discovery of the fraud. The plaintiffs contend that their case comes within the protection of this clause.
We are favored by learned counsel, in answer to this construction, with a very forcible argument in support of the
proposition that the provision above incited is only applicable to a case of fraud intentionally concealed by the party committing it, from the knowledge of the party injured, until the ordinary remedies would be barred by the statute. The argument and authorities cited in its favor are of great weight, and we are not prepared to say the proposition is unsound. We think, however, we are relieved from the necessity of deciding it- by the facts in the case before us.
We are of opiuion that the record shows that George Clarke had such knowledge or notice of his rights under the will, and of the transactions .of the trustees now complained of, as precludes his heirs from setting up ignorance of these transactions.
It appears that as agent for his mother in the year 1843, when he must have been twenty-eight years old, he went to New York to complete the sale of five different parcels of the land conveyed by Dyson to his mother. At his request L. B. Woodruff acted as counsel, and prepared the conveyances to the purchasers. These conveyances he carried to Washington, where they were executed by his mother, and by Matthew St. Clair Clarke as trustee, and were witnessed by him, and carried back by him to New York for delivery. At least two of the purchasers declined to complete the purchase on the ground of a defect of title growing out of the construction of the clause of the will of his grandfather, which is here in dispute. This difficulty was explained to Woodruff', his mother’s counsel, and to him. It had relation to his own connection with the will, and it related directly to the question, w'hether, under the circumstances, that he was then in existence, and had attained the age of twenty-one years, his mother’s interest in the property was a life estate or a fee simple title. Counsel for purchasers advised their clients to accept the title, if George would execute a deed of grant or release to the lots, and he did so, warrant-" ing the title. It is not clear whether the will of his grandfather was present during these discussions. But it is'clear that extracts from the will were used. That he was fully informed that he was referred to.in the will in such a manner
as made prudent counsel require a conveyance of
his
rights before they would advise their clients to pay for and accept the title conveyed by his mother, and by Matthew St. Clair Clarke, the executor of that will. The will itself, with all the deeds on which the title depended, was of record, and accessible to him without difficulty. The value of the property conveyed by the five deeds which he witnessed, and in regard to which he acted as his mother’s agent in delivering them, and receiving the money, was considerable. The consideration of the five deeds amounted to $7515.
This money passed through his hands, and he signed deeds parting with his interest to perfect the title in the only cases in which he was asked to do so: At this time both Boorman and Matthew S.t. Clair Clarke were alive. He lived twelve years after this, during eight years of which time, after his mother’s death, all his rights were perfect, and his cause of action against them free from obstruction. But during all this time he asserted no claim. If he had rights he was content to waive them. There was nothing to prevent his fullest investigation into all the transactions now complained of.' His attention had been called to his interest tinder the will,'to the nature of his mother’s title, to the fact that able lawyers considered him as having an interest in the property under that will, yet he lived for more than eight years after his mother’s life interest had expired and asserted no claim. His children cannot now, twenty years after this, be heard to say that he was in such ignorance of his rights that the curative influence of statutes of repose shall not operate against him and them.
We think it is equally clear, upon the general principles by which courts of equity are governed in regard-to lapse of time as a bar to relief, that plaintiffs come too late. The acts of the trustees, of which complaint is made, were completed in 1829, forty years before the suit is commenced for a redress of the wrong then done to plaintiffs’ father. During twenty-two years of that time his right and the right of his children to bring suit was without obstruction or hindrance. Within that time the party injured, the party who
committed the wrong, and all others engaged in the transaction, died. .The testator of defendants, the persons whose estate is to be charged if plaintiffs l’ecover, was the last of these to depart, and it would almost seem as if the delay until he wdio could best explain all that needed explanation, and could most effectually defend his own part in the transaction, had passed away, was intentional.
The fact that these transactions had relation to a trust does not in this instance take the-case from within the influence of those salutary principles intended to give protection against stale claims.
It may be conceded that, so long as a trustee continues to exercise his powers as trustee in regard to property, that he can be called to an account in regard to that trust. But when he has parted with all control over the property, and has closed up his relation to the trust, and no longer claims or exercises any authority under the trust, the principles which lie at the foundation of all statutes of limitation assert themselves in his favor, and time begins to cover his past transactions with her mantle of repose. Such is the case before us. With the transfer of the title of the property in 1829, Mr. Boorman intended to, and did, terminate his trust relation to that property. If there was any claim against him after that, which could be asserted by plaintiffs’ father, it was a claim for a wrong then done him, and not a claim as of au existing relation of trustee and
cestui que trust.
The act of Mr. Boorman, many years after, in disposing, as executor of the will, of fifty dollars of corporation stock discovered to belong to the estate, neither waived nor recognized as existing any such relation. Every principle of justice and fair dealing, of the security of rights long recognized, of repose of society and the intelligent administration of justice, forbids us to enter upon an inquiry into that transaction forty years after it occurred, when all the parties interested have lived and died without complaining of it, upon the suggestion of a construction of the will different from that held by the parties concerned, aud acquiesced in by them through all this time. i>BCRBE AMEJ>>