Appeal of Sophia & Hannah E. Marsden

Mr. Justice Green delivered the opinions of the court, March 5th 1883. Sophia and Hannah E. Marsden’s Appeal. The learned judge of the court below found, and as we think, upon sufficient testimony, that the $6,000 of North Pennsylvania Railroad Co. coupon bonds were the property of John Maz'sden, deceased, at the time of his death, and were not the property of his widow. While she and her daughter assert an ownez’ship in hez*, in their answers to the bill, no pi’oof of the actual acquisition of such ownership by purchase, or otherwise than by gift of the husband, was offered. The evidence of gift consisted solely of the assertion of the widow, and a statement by the daughter to the effect that she had heard her father say they wez’e her mother’s. But the other testimony in the case, as described in the opinion of the court below, clearly proved that both the mother and the daughter, after John Marsden’s death treated the bonds as the propeify of the estate and negotiated in relatiozi to them as such. The statement the daughter made in the letter of December 13th 1874, that her father had money invested in railroad stock, among which was a coupon bond of $6,000, and that as her mother had nothing she could call her [203] own she-reserved the coupon bond for.herself, is altogether inconsistent with her answer, and is in entire accord with the other testimony tending to show that her father was the real owner. It is not necessary to review the testimony in detail. We are satisfied with the finding of this'fact of ownership as declared by the court below. As to the plea of the statute of limitations, it was not necessary- for the plaintiff to anticipate in his bill that the statute would be pleaded and to make averments by way of reply to it. When it was set up as a defence he could reply to it by testimony showing it could not prevail. It is.true there is no averment in the bill that the defendants of either of them forged the alleged will of May 6th 1874, but it was proved that the wall was a spurious paper, never executed by John Marsden, and that this was determined by the verdict of a jury in an issue framed to try the question. As against the plaintiff this was undoubtedly a fraudulent will. The widow who was named as executrix in it took out letters, and acted under it, from December 1874 till June 1881. The daughter testified on the trial that it was in her father’s handwriting. In a letter she wrote to the plaintiff her brother in December 1874, she said it was found accidently between the leaves of a Concordance. Both the mother and the daughter upheld the paper as a genuine will for more than six years and resisted the efforts made to have its validity tried. By means of it they induced the plaintiff to abandon the genuine will of 1866, to surrender his letters testamentary granted upon that will, and to give up his lights under it. Whether the mother and daughter were personally conscious of the forgery of the spurious will or not, they asserted it after its genuineness was disputed and they were apprised of its fraudulent character, and are justly chargeable with every inference of consciousness which such circumstances naturally and fairly imply. But independently of that, the fact remains that the plaintiff was ousted of his office as executor, and of his rights under the true will, by means of the false and fraudulent will, upheld and asserted against him by the only persons who received any benefits under the latter instrument. It was a fraud and it was employed by the defendants to deprive the plaintiff of his rights, in such circumstances can they successfully interpose the plea of the statute of limitations in furtherance of the fraud? We think not. This is not a common law action but a proceeding in equity. While equity will follow the law in administering statutes of repose, it will also take care that such statutes are not used as instruments in the perpetration of frauds. On the contrary, it will prevent such results by refusing to apply the bar of the statute where justice requires it. In Story’s Equity, § 1521, the doctrine is thus stated. [204] “ Courts of equity not only act in obedience, and in analogy, to the statute of limitations, in proper cases; but they also interfere in many cases to prevent the bar of the statute, where it would be inequitable or unjust. Thus, for example, if a party has perpetrated a fraud which has not been discovered until the statutable bar may apply to it at law, courts of equity will interpose, and remove the bar out of the way of the other injured party. A fortiori, they will not allow such a bar to prevail, by mere analogy, to suits in equity, when it would be in furtherance of a manifest injustice.” Many cases are cited in the notes in support of the doctrine, and it ha» been adopted and followed by this court. It was applied in Harrisburg Bank v. Eorster, 8 Watts 12, to the cashier of a bank who pleaded the statute against his own notes to the bank. That was a suit upon four notes which were more than six years’ old and subject to the bar of the statute. Rogers, J., on p. 16, said “ The statutes of limitations, which are statutes of repose, are certainly very beneficial, and of the highest importance. They are passed to assure titles to land, to quiet possession, to guard against perjuries, and more especially to prevent the commission of fraud and injustice. To prevent that, which was intended to guard the citizen against fraud and injustice being made an instrument or a shield to fraud, the court has found it absolutely necessary to introduce exceptions to the operation of the statute, and one to which the circumstances of this case more particularly apply, is where there has been fraud or concealment, on the part of the party seeking the protection of the statute, and especially when that party stands in a fiduciary relation.” The foregoing doctrine is of course applicable to one who has himself committed the fraud which is sought to be protected by the statute. We think it is also applicable to one who makes use of a fraudulent transaction for his own purposes, and then asks the protection of the statute of limitations to shield himself from the consequences of the fraud. Such protection would be equally harmful to the victim of the fraud in either case, and would equally tend to the perversion of justice ; nor is it easy to perceive any serious difference of' culpability between the perpetrator of a fraud and one who consciously makes use of a fraud committed by another. However it may be at law, it is very certain that equity is not bound to permit the statute of limitations to be used as a shield or protection to fraud, and is at liberty to deny its application in order to prevent manifest injustice. There is a grave question, which we do not decide, whether the statute would run in any event during the continuance of the executorship of Sophia Marsden. The apparent ownership of the cause of action was in her under the false will, and as [205] she was sole executrix from December 1874 to June 1881, and could not sue herself, it would seem that the right of action was practically extinguished during that period. The case differs in this respect from the cases in which a right of action has accrued to one who has subsequently gone beyond the seas or become su-bject--to a disability. In those cases there is a Íarty clothed with a right of action, and the courts are open. t is unnecessary, however, to determine this matter as the considerations before stated dispose of the ease. Decree affirmed and appeal dismissed at the costs of the appellants. William C. Marsden’s Appeal. John Marsden, the testator, died on June 13th 1874. He left an estate amounting in value to $65,000 or $70,000 exclusive of two small farms in Sullivan county. By his will dated May 29th 1866, after devising the two farms to the appellant, his son, he gave the household goods to his wife, Sophia Mars-den, ali the rest of his estate to her for life. The appellant was appointed -executor and took out letters testamentary on June 19th 1874, which were revoked in December 1874, upon - the discovery of what was supposed to be a genuine will of a later date. This paper was subsequently, in 1881, determined to be a forgery, and thereupon the probate of the original will, and the letters granted thereon, were re-instated. Sophia Marsden, the widow, who was named as sole executrix in the second alleged will, had taken out letters under it and acted as executrix from December 1874 to June 1881.. Both the appellant and Mrs. Marsden had filed accounts which were adjudicated. The present bill in equity was filed on June 28th 1881, to' compel a surrender of certain shares of stock which were purchased with the proceeds of $6,000 of North Penna. E. E. Co. bonds, the property of John Marsden, deceased, but claimed by the widow as hers. After a hearing upon bill, answer and proofs, a decree was made.finding that the $6,000 of bonds .were the property of the deceased, and that one hundred and twenty shares of Pennsylvania E. E. stock had been purchased with the proceeds of the bonds, and directing a - surrender of the stock. The Master also reported an account of the income of the bonds and stock and recommended a decree that the income thus received amounting to about $3,000 be paid to the appellant as executor. An exception being filed to this finding the same was sustained by the court, and from that decision the present appeal was taken. We think there was no error in this action of the court.. By the will of- the deceased, John Marsden, the whole of the residue of his estate was given to the widow during her life. The bill did not aver, nor was [206] there evidence to show, that any part of the income in question was needed for the payment of debts, and the estáte was quite large. The testator had been dead seven years when the bill was filed, and nearly eight years when, the decree- was made; Two executor’s accounts had been filed and adjudicated. The presumption was that' no part of the income in question was needed for the payment of debts, and there was no proof to the contrary. If this income were awarded to the appellant he would be obliged to pay it forthwith to the widow. But the widow renounced all claim toan account of it as it was in the hands of her daughter, Hannah E. Marsden. We see no good purpose to be subserved by compelling the payment of this money by the daughter. The Master reports that under the decree of distribution made by the Orphans’ Court, Sophia Marsden, the widow, has entered security for the custody of the personal estate of the decedent. The decree of the Orphans’ Court is not printed, nor a copy of the will. But it is stated in the paper book that the residuary estate was devised directly to the widow for her life. If this is so and she has given security as tenant for life of the personal estate, we do not see that the executor has anything to do with it, either with the custody of it or the collection of the income. We assume that the Orphans’ Court has exercised its jurisdiction so far as to adjudicate upon the right of the widow to the estate of her husband. The circumstance that the North Penna. bonds, or the Penna. R. R. stock were not included in- the account adjudicated, would not affect her right, at least to the income derived from the latter, which is all that is in question here. It belongs to her by the same title that gives her the rest of the residuary estate. If she choose to give it to her daughter she has a right to do so, and there is no reason why the latter should pay it to the executor. • ' Decree affirmed, and appeal dismissed at the costs of the appellant. -..... r