Masonic Temple Co. v. Ward , 1868 Ky. LEXIS 416 ( 1868 )

Opinion op the Court by

Judge Hardin :

As it sufficiently appears that' the original claim of the appellee against the “Masonic Fraternity” as fixed by the arbitrator’s award of $1,580, was reasonable and just, if the conclusions of the chancellor be correct, that the Masonic Temple Company, as the successor of the Masonic Fraternity, took the property of the latter with a liability for its debts, and upon trust for their payments, against which limitation would not run to bar the claim, it may not be necessary to determine whether the judgment of the Jefferson Circuit Court upon the award was or not void for want of legal service of process, or if the same be void, whether the claim, notwithstanding the award, is not barred by limitation.

Barr, for appellant. Caldwell, for appellee.

The act of February, 1860, providing for the new organization, seems to us to clearly contemplate that the property of the “Masonic Fraternity” should pass to it, pledged for the payment of the debts of the old company, the purpose of the act is expresesd in the first section being

“to raise the necessary funds to pay the debts not secured by mortgage or deed of trust,-and the punctual payment of interest on its debts and liabilities,”

and this purpose seems to have been recognized and acquiesced in, in the organization of the new company.

But it is insisted for the appellant that if it be true, as is we think correctly contended for the appellant, that the transfer of the property created a trust in favor of the general creditors, the statute of limitations, nevertheless, runs against the appellee’s claim. And the ordinary case of a devise of an estate by will to a personal representative for the payment of debts, is cited for illustration, as one which is opposite in principle with this, and in which the statute would run in favor of the estate, notwithstanding the trust. But we do not regard the two cases as analogous. Whether the distinction arises from the difference between the rights of a creditor against an estate, however devised, and those of a cestui que trust, it is well settled that limitation will not run, as a general rule, against an express trust.

Wherefore, perceiving no available error in the judgment, the same is affirmed.