Hatt v. Green

BROOKE, J. (after stating the facts). It must be held that complainant Rollo Hatt took nothing under the will of his grandfather. His mother’s children were described by name in the will before his birth, and he was a grandson, not a son, of the testator. Moreover, he was a party to the proceeding in which the will was construed and his rights determined. No appeal was taken from that decree, and it stands as the law of the case. We are satisfied that the appraisal of 1891 was fair. It was made by a supervisor and an ex-supervisor of the township, and it remained on file in the probate court unquestioned by complainants for upwards of 20 years. In the meantime the executors paid the taxes upon the land and it was drained. It undoubt [391] edly increased in value, particularly within the past 10 years. We are unable to discover any fraud or gross undervaluation in the appraisal. Assuming that defendant William Green and his coexecutor had the right to elect to keep the land and pay its appraisal value to the children of Mary Ann Hatt, a conclusion perhaps warranted by the terms of the decree construing the will and the opinion upon which the decree was based, have they discharged their obligations to complainants? It is obvious that it was the intention of the testator to create a fund (either land or money) for the benefit of - complainants and their brothers and sisters. The fact that the will commanded an appraisal and distribution of the fund from time to time with interest imposed the duty upon the executors and trustees of turning over the land with its unearned increment to the beneficiaries from time to time as they became of age, or of investing the fund represented by the appraisal valuation for the benefit of the beneficiaries, so that when each reached his majority, he should receive his share, plus the interest earned thereon during his minority. Neither course was followed by the trustees. We are satisfied that when the eldest child became of age and the trustees paid to him his proportionate share of the appraisal value of the lands, they should be held to have made an election to keep the lands and to treat the appraised valuation as fixing the amount of a trust fund in their hands which, both under the will and the decree, they were bound to keep invested for the benefit of their cestuis que trustent. A careful reading of the record convinces us that the trustees dealt with the complainants about as they pleased. They told each one that the sum of $475 represented his share of the estate to which he was entitled, and demanded and secured a formal release. [392] The several transactions occurred when each of the complainants was barely 21 years of age, country boys, and presumptively ignorant of their legal rights. The learned circuit judge held that any claim which complainants might have was barred by the statute of limitations. In this case we think he was in error. In 2 Perry on Trusts and Trustees (6th Ed.), § 863, it is said: “As between trustee and cestui que trust, in the case of an express trust, the statute of limitations has no application, and no length of time is a bar. Against an express and continuing trust time does not run until repudiation or adverse possession by the trustee and knowledge thereof on the part of the cestui.” See, also, Jones v. Home Savings Bank, 118 Mich. 155 (76 N. W. 322, 74 Am. St. Rep. 377) ; Murphy v. Cady, 145 Mich. 33 (108 N. W. 493), and Russell v. Huntington, Nat. Bank, 162 Fed. 868, 89 C. C. A. 558. The decree of the court below is reversed, and a decree will be entered in this court confirming the title to the lands in question in defendant William Green and the heirs of his cotrustee, but providing for an accounting against said defendant William Green in which he shall be charged with interest upon each share paid complainants from the time settlement was made with the oldest child, at which time the trustees must be held to have made their election. Complainants will recover costs of both courts. McAlvay, C. J., and Kuhn, Stone Ostrander, Bird, Moore, and Steere, JJ., concurred.