Whiting v. Whiting , 70 Mass. 236 ( 1855 )

Bigelow, J.

The residuary clause in the will of Caleb Whiting created a trust estate during the life of his son David Whiting, with a remainder, upon his death, to his children. It is impossible, by any other construction, to fulfil the express provision of the will, by which the use and improvement of the residue of his estate, both real and personal, are appropriated to the support of the family of his son David, during his life; and it accords entirely with the devise to the children of David, which was not to take effect in possession until the decease of their father. The legal estate, during the lifetime of the son, could not vest in the family of David. The beneficial interest only was given to them. The will therefore, by necessary implication, created a trust, which, in the absence of any direct appointment of a trustee by the will, devolved upon the executor, in whom the legal title to the property vested during the life of David. Nash v. Cutler, 19 Pick. 71. Smithwick v. Jordan, 15 Mass. 116. Dorr v. Wainwright, 13 Pick. 328. Upon the death of the executor, the power to appoint a new trustee was vested in the probate court. St. 1817, c. 190, § 40. Rev. Sts. 69, § 8. The plaintiff in the present action was therefore duly clothed with the office of trustee, and the title to the trust property became legally vested in ■ him during the life ol David.

The only other question is whether the facts in the case show that the defendant and those under whom he claims acquired a valid title to the premises in controversy by disseizin, and adverse possession for twenty years and upwards. We are of opinion that no such title is proved. In the first place we have the fact, that, after the death of the executor, the office of trustee was vacant for many years, so that there was no one whose direct duty it was to assert a title to the property and administer the trust. In the next place, Frederick Whiting was himself one of the cestuis que trust. Being one of the children of David Whiting, he was comprehended within the term “ family,” and so was beneficially interested in the trust estate. Hill on Trustees, 76. Barnes v. Patch, 8 Ves. 604. Wood v. Wood, 1 Myl. & Cr. 408. The rule is well settled, that the possession of a cestui que trust, however long continued, will not displace the legal title of the trustee, unless there is a distinct denial of such title and a possession wholly inconsistent therewith. The presumption is that the possession of a cestui que trust is permissive, and not adverse to the title of the trustee. Angelí on Lim. § 474. Right v. Beard, 13 East, 210. Roe v. Street, 4 Nev. & Man. 42. Hill on Trustees, 266.

In the present case, there are no facts which show decisively a disseizin of the trustee by Frederick Whiting, and warrant the inference that his possession was adverse. On the contrary, the fact that, on taking a deed of the estate from his father David, he gave a bond by which he bound himself to support him and his wife during the lifetime of said David, and that for several years subsequent thereto, and within twenty years prior to the alleged trespass, he continued to furnish such support, tends to show that he recognized the existence of the trust, and took upon himself to perform the duties properly chargeable on the estate. Nor do we think any great force or efficacy can be given to the fact that he took conveyances of the estate from his brothers and sisters from time to time, as showing an adverse claim and possession. These deeds were doubtless intended to convey the remainder to which the children were entitled, under the will, upon the death of their father. But it does not appear that the entry of Frederick Whiting, and Ms subsequent possession of the estate, were intended to be, or were in fact under these deeds to the exclusion of the trust estate established by the will.

Judgment for the plaintiff.