Washington Loan & Trust Co. v. Darling , 21 App. D.C. 132 ( 1903 )

Mr. Justice Shepard

delivered the opinion of the Court:

1. The first contention on behalf of the appellant is that the evidence fails to prove the contract alleged in the complainant’s bill, with the certainty made necessary by the nature of that contract and the circumstances surrounding the transaction.

Besides testifying on her own behalf, the complainant introduced six witnesses in support of her demand, none of whom was directly contradicted or impeached.

The evidence is voluminous, in consequence, chiefly, of the prolonged cross-examination of the complainant, and the addition thereto of a mass of exhibits consisting of correspondence and newspaper clippings, a great part of which seems to us irrelevant.

After a careful consideration of all of this evidence we perceive no satisfactory ground upon which to rest a reversal of the conclusion of the learned trial justice, and in view of his elaborate and well-considered opinion, which forms a part of the record, we see no occasion for an additional review.

We entirely agree with him that the complainant was the originator of the inquiry into the management of the trust created by the will of Joshua Pierce, which resulted in the partly successful litigation with the trustees thereof, and that she performed some services in the matter at the request of her daughter-in-law, who was hardly more than a child at the time of her marriage.

We also agree with him that there is nothing unreasonable in the promise of the daughter-in-law to compensate the complainant liberally for her services. Neither she nor her young husband had any business experience. Notwithstanding her remainder in the large estate she had no present means, and lived for a considerable time with the complainant who contributed to her support. The relations of mother, son, and daughter-in-law were then most confidential and affectionate.

These conditions furnish a foundation for the claim that the complainant, at the commencement of the investigation before mentioned, was promised a sum of money to be paid whenever the daughter-in-law should come into the enjoyment of her estate. Nor is there anything unreasonable, under all the surrounding circumstances, in the claim that, when the life estate had terminated, the daughter-in-law proposed and the complainant accepted the payment of $50 per month, for life, in lieu of the original sum that had been fixed as compensation for her services.

Now, as regards the evidence relied on to establish the original contract, as well as its substitution by that which is the foundation of the suit, we shall content ourselves with some extracts from the aforementioned opinion of Mr. Justice Hagner, as follows:

“ The seven witnesses for the complainant are De Volney Everett, Mrs. English, an elderly lady and an intimate friend of the complainant; Sarah. Morris, a colored woman, who was for years a servant of Mrs. Beatrice Darling, and of Mrs. Darling, the complainant; Miss Adams, a daughter of Mr. John Quincy Adams; John Quincy Adams himself, who is a cousin of the complainant; and Mrs. McCullough, who was the keeper of a boarding-house in Detroit, in no way related to or connected with the complainant, who also testified in her own behalf.

“ Each of these witnesses, in my judgment, offers evidence tending to prove the case presented in the bill. They testify also at large, and under the influence of the cross-examination very fully as to antecedent propositions, and about other and larger promises which had been made by Mrs. Beatrice Darling during the early progress of the suit, and after its completion, when the property had practically come into her possession.

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“No other objection against either of these witnesses is made, except that some of them are related to the complainant. Under the circumstances of the case, as the witnesses were nearest and most intimately associated with mother and children, tbev naturally would be the very persons who would know most about the subject. All of them testify to conversations in which Beatrice and her husband took part, and to explicit requests by them that the complainant would proceed with the case, and would procure the proper investigations to be made, with a view to preventing further loss to the estate from the conduct of the trustees, and to place the real owners in possession of their property without further damage from mismanagement.

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“ Some of them are people of high respectability; and we cannot- throw aside what they have said, in the absence of the slightest attempt to impugn their veracity or contradict them by other testimony, except by charging them with false swearing, for which there has been no possible explanation or motive.”

2. We do not understand it to be- denied that there was sufficient- consideration for the original contract between the parties or for the later one substituted therefor, and on which the suit rests.

It is true, however, that the complainant could have maintained an action at law against the executor of the estate for the monthly instalments accruing due before the death of the testatrix as well as after, rvhilst the estate was in his hands for administration; and that she failed to do so, although she went so far as to present an unauthenticated claim therefor, which was promptly rejected. Instead of taking action she waited for more than five years after the death of the testatrix, and two years after the settlement of the final account of the executor, and then filed this bill against the trustee, who bad in the meantime come into the possession of the estate under the terms of the will. Founded on the conditions stated, the contention, on behalf of the appellant, is that any right which the complainant might have had to enforce her contract has been barred by her laches.

As the demand made upon the executor was not authenticated as required by law, its rejection did not have the effect to bring any part of it under the operation of the special statute of limitation provided for such cases. ^* Robeson v. Niles, 18 D. C. 182, 192; Coburn v. Harris, 53 Md. 367.

Nor has the right of the complainant to proceed in equity against the estate, in the hands of the trustee, been lost by the mere fact that she failed to prosecute a suit, as she might have done, against the executor before his settlement and discharge. Zollickoffer v. Seth, 44 Md. 359, 314.

In rendering the decree the trial court overruled the defense of laches to the entire demand, but applied the rule of the statute of limitation as at law and denied recovery of all arrears of the contract instalments that accrued due more than three years before the commencement of the suit.

Had the action been maintainable at law, as it would have been against the testatrix during her life, or her executor after her decease, this would undoubtedly be the correct judgment to render; for it is well settled that where a debt is payable in independent instalments the right of action accrues upon each as it matures, and. if the obligee shall fail to commence his action until the statutory bar has intervened in the case of one or more instalments, he can only recover those not barred when his action was commenced. B. & H. Turnpike Co. v. Barnes, 6 H. & J. 57; Bush v. Stowell, 71 Pa. St. 208, 212; Robertson v. Pickerell, 77 N. C. 302; Angell Lim., Sec. 110; 19 Am. & Eng. Encyc. L. (2d ed.), 205.

The doctrine has been too long established to require citation of authority, that in cases of concurrent jurisdiction courts of equity will hold themselves bound by the statute of limitation that would govern an action at law upon the same demand; and where the subject-matter of the demand is one ordinarily cognizable at law, but, by reason of special conditions, the remedy for its enforcement in the particular case is obtainable solely in equity, the bar of limitation will be applied, either in obedience to the statute, or by analogy, in the same way as at law.

Upon obvious grounds, equity follows the law in all such cases; and for the same reason that it will apply the bar to the enforcement of the demand in accordance with the rule of the statute, it will, ordinarily at least, refuse to apply the bar of laches on a delay of less duration. Conceding that a court of equity may not consider itself absolutely bound to apply the rule of the statute in all cases of the hind, yet, at the very least, there must be something extraordinary in the special circumstances of a particular case to justify the denial of relief, on the ground of laches, when by the terms of the statute there could be no bar in a corresponding action at law.

We perceive no such exceptional circumstances in the case at bar.

The decree will therefore be affirmed, with costs. It is so ordered. Affirmed.

A motion for a rehearing, filed on behalf of the appellants January 28, was denied February 4, 1903.