Ward v. Ward.

In many cases the cestui que trust must bear the loss occasioned by the malfeasance or the misfeasance of the trustee, or, what amounts to the same thing, where the property is disposed of by the trustee, he is without remedy except against the trustee or his bondsmen, though they may be insolvent; but we do not think that is so in a case like this, where the person withholding the property has parted with nothing to obtain it, and has not even consciously asserted a claim adverse to the rights or interests of the cestui que trust.

If the executor were here asserting this claim in his own right, we might feel obliged to take a somewhat different view of his rights, but the fact that by a recovery he may be benefited we regard as merely incidental. He holds the property and asserts the rights in autre droit, and we are bound to consider primarily the rights of the cestui que trust. Woerner's Am. Law of Adm., Sec. 174.

In many instances an executor or other trustee may, as such, assert and enforce claims for and on behalf of the cestui que trust that he could not enforce on his own personal account. Even outlaws, infants and others not sui juris, may act as trustees and enforce the right of the cestui que trust, when they could not maintain a suit as individuals.

That the executor in his official capacity is the proper party plaintiff here we think is clear. Phillip's Exr. v. McConica, supra. Indeed it is almost certain that neither heir nor legatee could maintain the suit, at least not until after complete administration by and discharge of the executor, though they might proceed against the executor to compel him to seek to recover the property as he here seeks to recover it. Woerner A. L. Admr., Secs. 199, 200, 322; 60 Ala., 504, 517; Sec. 6053, Rev. Stat,

Coming now to the question of the application of the statute of limitations. As I have said, under ordinary circumstances, a claim based upon the payment of money by mistake, or the wrongful appropriation and withholding by one of the money of another, would be barred in six years after the cause of action accrued, and, in the absence of concealed fraud, it would ordinarily accrue, so that the money would be of right demandable immediately upon its being wrongfully obtained and withheld.

The plaintiff urges that the statute does not apply to this claim because it is a" continuing and subsisting trust," within the provisions of Sec. 4974, Rev. Stat.

The authorities are uniform in holding that constructive trusts do not come within the excepted class, and are subject to the statute of limitations. We merely mention and dispose of this point in passing, and shall not trouble ourselves to cite many authorities. Wood on Limitations, Sec. 215.

It has been held that one borrowing money from a trustee, knowing it to be trust money, cannot set up the statute of limitations against a claim of or on behalf of the cestui que trust, though the trustee suing on his own account may be barred thereby. Lewin on Trusts, 1 Am. Ed'n, p. 1165, and cases cited in note [e]; Woerner Am. L. Admr. Sec. 331.

But in Ohio, if the cestui que trust had knowledge of the transaction, and was under no disability, and his right to demand and have the funds had accrued, we believe the statute would run against his claim. In this state legacies in the hands of executors, who have no duty with respect

5 0. C. D. Vol. 12

Lucas Circuit Court.

thereto except to pay the same, are not of the nature of continuing and subsisting trusts, and the statute runs in favor of the executor and against the legatee from the time the legacy becomes due and payable. Webster v. Bible Society, 50 Ohio St., 1 [33 N. E. Rep., 297]. And see cases cited in opinion of Williams, J., at page 9.

If it should be held that the legacies in this case were due and payable on the death of the mother, notwithstanding the agreement of postponement set forth in the petition, it is apparent that the claims of the legatees would be barred under the statute. But here, according to the averments of the petition, it was agreed on the part of all interested, including plaintiff, defendant and legatees, that the legacies were not to be paid until after the death of the father. Whether this was based on a correct construction of the will we need not inquire, nor need we say whether the agreement had the effect of so modifying the rights of the parties that the executor (if a correct interpretation of the will authorized it) might not have paid, or the legatees might not have demanded and enforced payment of the legacies before the death of the father. It is sufficient that the parties agreed upon an interpretation of the will that postponed the payment of the legacies, and acted on that interpretation, and while this agreement was respected by the legatees the receipt and enjoyment of the legacies was in fact postponed until the death of the father. The result was the same as if the right to require them to wait for the event was absolute. Having regard for the agreement, their right to demand their legacies did not accrue until the death of the father had occurred. Therefore their rights of action to recover property that it might be applied in payment of their legacies did not accrue until the happening of that event, though they may have had a right at an earlier period to require the executor in the due administration of his trust to repossess himself of the property. This right against the executor, and the further right to subsequently sue the executor personally and require him to make good any loss resulting from his misfeasance, should not, and in our opinion did not affect their right to proceed through the executor to call the defendant to account for the trust funds unlawfully withheld by him. In many cases, where the trustee is bound by the statute of limitations, the cestui que trust is also bound. The statute operates against both at the same time and upon the same conditions. But we believe this is not true generally in cases where, if there were no trustee intervening, the statute would not operate against the cestui que trust, as, for instance, in certain exceptional cases where the latter is a minor, or otherwise disabled from suing on his own account, or where the claim of the cestui que trust is not due and payable so as to give him a right of action on his own account, or where the right of the cestu que trust is that of remainderman, and the life estate has not ended, and the like.

Whether the legatees in this case knew of this transaction whereby the defendant had wrongfully possessed himself of a part of the trust fund, the petition does not make clear. If they did not know of it, that would afford another good reason, in conscience if not in law, why the statute should not bar a claim prosecuted on their behalf. Whether it would afford a legal reason seems doubtful. But we believe and hold that the postponement of the time for the payment of their legacies had the effect, as to all parties concerned, of postponing the beginning of the running of time under the statute against a claim of which their right to have their legacies paid is the foundation, of the the happening until

Ward v. Ward.

event that made their legacies due and payable under the arrangement, i. e. the death of the father, and as that accrued less than six years before this suit was begun, we hold that this suit, prosecuted in their right and on their behalf, may not be defeated by a plea of the bar of the statute, unless, of course, a different state of facts from that set forth in the petition shall be made to appear. While we find no authorities directly in point, principles and cases which seem to us to be in harmony with the views here expressed will be found set forth in the edition af Lewin on Trusts, hereinbefore cited, bottom pages 1164, 1165, 1166; Hill on Trusts, Secs. 267, 403, 504, Perry on Trusts, 857, 858, 859; Wood on Limitations, Sec. 208; Crosby v. Dowd, 61 Cal., 557, 598; Scott v. Newsom, 27 Ga., 125, 131; 10 Rich. (S. C.) Eq., 226.

There is still another phase of the case to be mentioned. The petition does not say distinctly that George promised to contribute a moiety of the funds necessary to discharge the legacies, but it states facts from which the law would raise an implication of such promise. Though this was an implied promise to John, it was a promise for the benefit of the legatees, and upon which a suit might be maintained by them or on their behalf. This suit we hold is on their behalf, as well as on behalf of all entitled to share in the estate. The fact that the promise and the enforcement thereof by John as executor may incidentally result in an advantage to him personally, we repeat, should not and can not impair the right of the legatees, or detract from the executor's authority to enforce their rights in the premises. The prayer is broad enough to warrant a personal judgment. A cause of action on this promise did not ripen until the time agreed upon for performance, i. e. after the death of the father; so that a cause of action on this promise is not barred. This promise, if enforced by John personally, might not justify more than a personal judgment in his favor, but when enforced by him as executor on behalf of the legatees, we are of the opinion that in connection therewith all their rights in equity to follow the trust fund may be enforced as rights arising out of the transaction and concomitant with and incidental to the receipt of their property and the promise to contribute to the payment of their legacies. A court of both law and chancery power, having all its powers invoked, will not say that the promise may be enforced by legal process, but the equities arising out of the same transaction will not be enforced, but will be regarded as barred. At the time the promise was made (implied) a right existed to follow the property which was in a measure the consideration of the promise. As a part of the cause of action (i. e. the legal right) is not barred, we find no warrant for holding that the incidental equity is barred.

To restate briefly our conclusions:

First. The cause of action based upon the receipt and holding of the property is not barred because the rights of the cestui que trust did not ripen and the statute did not begin to run against them until after the death of the father, and six years has not elapsed since then.

Second. The right arising out of the implied promise to contribute to the payment of the legacies is not barred, because no right of action ripened thereon until after the death of the father, and the equities sought to be enforced are also kept alive as concomitants or incidents of the transaction and promise.

We hold that the court of common pleas erred in sustaining the demurrer to the third amended petition and in giving judgment against the plaintiff.

Lucas Circuit Court.

The judgment will be reversed, the cause remanded with direction to the court below to overrule the demurrer and otherwise proceed in the case according to law.

STREETS-PROPERTY OWNER'S RIGHTS.

[Franklin Circuit Court, September Term, 1900.]

Summers, Wilson and Sullivan, JJ.

BEATTY V. Kinnear.

ABUTTING OWNER'S RIGHT of Way IN STREET.

The right of way and easement in a street or alley of an abutting lot owner extends at least to the first connecting or intersecting street or alley, and such lot owner may enjoin the closing or obstructing of that part of such street or alley until his damages by reason thereof have been assessed and fully paid.

HEARD ON Error.

Arnold, Morton and Irvine, for Kinnear, cited:

Upon the vacation of a street the title to the vacated portion reverts to the abutting lot owners: Stevens v. Shannon, 3 Circ. Dec., 386 (6 R., 142) (Affd. without report, Stephens v. Taylor, 51 Ohio St., 593); West v. Atcheson, 9 O. F. D., 70 (30 B., 36, 37).

Upon such vacation the duty of the public to maintain and keep in repair such vacated street ceases: McQuigg v. Cullins, 56 Ohio St., 649, 654 [47 N. E. Rep.. 595]; Crawford v. Delaware, 7 Ohio St., 459, 469; Jackson v. Jackson, 16 Ohio St., 163.

After vacation, while the public duty to maintain and repair ceases, there is a private right of way or easement in certain lot owners which remains: Crawford v. Delaware, 7 Ohio St., 459, 469; Jackson v. Jackson, 16 Ohio St., 163; McQuigg v. Cullins, 56 Ohio St., 649, 654 [47 N. E. Rep., 595]; Stevens v. Shannon, 3 Circ. Dec., 386 (6 R., 142); Mitchell Furniture Co. v. Railroad Co., 9 Dec., 674; Elliott on Roads and Streets (2 ed.), Secs. 703 and 877, 1086.

Injury to lot owner must be different from that to general public: 24 Am. & Eng. Enc. Law, 121; Houck v. Wachter, 34 Md., 265 [6 Am. Rep., 332]; Davis v. Commissioners, 26 N. E. Rep., 848 [153 Mass., 218; 11 L. R. A., 750]; Quincy Canal v. Newcome, 7 Met., 283; Chicago v. Building Assn., 102 Ill., 379 [40 Am. Rep, 598]; Jacksonville, T. & K. W. Ry. Co. v. Thompson, 16 So. Rep., 282 [34 ‍Fla., 346; 26 L. R. A., 410]; Littler v. City of Lincoln, 106 111.. 353; City of East St. Louis v. O'Flynn, 10 N. E. Rep., 395 [119 Ill., 200; 59 Am. Rep., 595]; Parker v. Catholic Bishop of Chicago, 34 N. E. Rep., 469 [146 Ill., 158]; Shaw v. Railroad Co., 35 N. E. Rep., 92 [159 Mass., 597]; Smith v. Boston, 7 Cush., 254; Bracken v. Railway Co., 11 N. W. Rep., 124 [29 Minn., 41]; Kimball v. Homan, 42 N. W. Rep., 167 [74 Mich., 699]; Shaubut v. Railway Co., 21 Minn., 502; Bailey v. Culver, 84 Mo., 531; Davis v. Commissioners, 26 N. E. Rep., 848 [153 Mass., 223; 11 L. R. A., 750]; Heller v. Railroad Co., 28 Kas., 625; Doppas v. Railroad Co., 10 Circ. Dec., 286 (19 R., 582); Jones on Easements, Secs. 546 and 550; Stanwood v. City of Malden, 32 N. E. Rep., 702 [157 Mass., 17; 16 L. R. A.,

Beatty v. Kinnear.

591]; Buhl v. Depot Co., 57 N. W. Rep., 829 [98 Mich., 593; 23 L. R. A., 392]; Whitsett, Exrx., v. Railroad Co., 10 Col., 243; Polack v. Trustees, 48 Cal., 490; Coster v. Mayor, 43 N. Y., 399; Cassell v. Berkshire, 11 Gray, 26; Kimball v. Homan, 42 N. W. Rep., 167 [74 Mich., 699]. State v. Elizabeth, 24 Atl. Rep., 495 [54 N. J. L., 462]; Glasgow v. St; Louis, 17 S. W. Rep., 743 [107 Mo., 198]; Fearing v. Irwin, 55 N. Y., 486; Barr v. City of Oskaloosa, 45 Ia., 275; Morgan v. Railway Co., 21 N. W. Rep., 96 [64 Ia., 539; 52 Am. Rep., 462]; Aram, Trustee, v. Shallenbarger, 41 Cal., 449; Hawley v. Mayor, 33 Md., 270; Mitchell Furniture Co. v. Railway Co., 9 Dec., 674; Kings Co. Fire Ins. Co. v. Stevens, 5 N. E. Rep., 353 [101 N. Y., 411]; Dantzer v. Railway Co., 39 N. E. Rep., 223 [141 Ind., 604; 34 L. R. A., 769; 50 A. S. Rep., 343].

Lot owners have no greater rights than the general public in the streets in a subdivision in which their lots are situated, excepting within the general rules and limitations thereon, herein set forth: Mitchell Furn. Co. v. Railway Co., 9 Dec., 674, 679; Heller v. Railroad Co., 28 Kas., 625; Polack v. Trustees, 48 Cal., 490; Kimball v. Homan, 42 N. W. Rep.,167 [74 Mich., 699]; Littler v. Lincoln, 106 Ill., 353; Coster v. Mayor, 43 N. Y., 399; Doppas v. Railway Co. 10 C. D., 286 (19 R., 582).

Some cases hold that the remedy of the property owner is in damages and not by injunction: Mitchell Furn. Co. v. Railway Co., 9 Dec., 674, 682; Sully v. Schmitt, 41 N. E. Rep., 514 [147 N. Y., 248; 49 A. S. Rep., 659]; Bailey v. Culver, 84 Mo., 531.

The plaintiff avers, in substance, that Wm. A. Neil in his lifetime platted and laid out a subdivision in the city of Columbus, a particular description of which is given; that lots in said subdivision were sold and conveyed as numbered and designated on the recorded plat thereof and with reference to the location of the various lot lines and the streets, and alleys as designated on said plat; that one of the lots so sold and conveyed is lot No. 63, now owned by the plaintiff, and that as platted and laid out there was an alley twenty-two and one-half feet wide, and known as Cedar alley, adjacent to the rear of her said lot and extending from Walnut street on the west to Fourth street, formerly known as Lazell avenue, on the east, as laid out in said subdivision and as designated on said plat; that she has erected improvements of the value of $3,500, on her said lot; that all of the streets in said subdivision have been improved with reference to the location of said alley and to the access to the same; that said alley has been used by the public for eighteen years; that the defendant, The Kinnear Manufacturing Company, has taken possession of the eastern 109 feet of said alley and is engaged in constructing a large building on the same which will permanently close that part of the alley and will cut off the ingress and egress of her said lot to and from the east through said alley, to her irreparable injury, wherefore she prays that the defendants may be enjoined.

Answers are filed that admit all of the averments of the petition excepting that ingress and egress to and from the east will be cut off and that she will be injured.

The averments of the answers are to the effect that the parties having the legal title to all the lots adjacent to said alley, from plaintiff's said lot to said Fourth street, on November 20, 1899, filed a petition with. the council of said city for the vacation of said alley from Fourth street west for a distance of 110 feet; then follows a detailed statement of various steps taken that resulted in a vacation by the council of that part of said alley and in a subdividing and platting and the acceptance there of