Harlow v. Dehon , 111 Mass. 195 ( 1872 )

Wells, J.

This claim arises upon a sealed instrument. If it be regarded as a-debt due from the testator, or a demand against his estate, though not barred by the general statute of limitations, yet it is barred by the limitation of actions against executors and administrators; Gen. Sts. c. 97, § 5; and if considered as first accruing upon the death of Charles Woods, it is barred as against the heirs and devisees of William H. Prentice, because the suit was not brought within one year thereafter. Gen. Sts. a. 101, §82.

The plaintiff contends, however, that the suit is brought to enforce a trust; and that such rights are not affected by statutes of limitation. That principle is a sound one when rightly applied. It might have been a sufficient answer to William H. Prentice pleading the general statute of limitations against Charles Woods, in the lifetime of both, after the lapse of twenty years from the date of the instrument of trust. It is applicable to actual subsisting trusts which are continuous in their nature, and not terminated ; and to those which attach to specific property, or to a particular fund in the hands of the party sought to be charged therewith, Kent v. Dunham, 106 Mass. 586.

The trust in this case did not, in its inception, attach to any specific property. It was not made specific by the testator in hr» lifetime. All his property passed to his executors as assets to be administered upon, according to his will. He did not, by his will, charge his estate, or any part of it, with this trust; nor impose it upon his executors by any direction to them. As to them,, the agreement with Charles Woods was a mere personal obligation of their testator, even that part of it which stipulated that his executors or administrators should “ execute the same trusts.” It affected them, not as a part of their trust as.executors, but as all the personal obligations of their testator did, by constituting a charge against the estate in their hands, imposed upon it and them by law, and to be recognized and enforced according to the provisions and subject to the limitations provided by law therefor.

Even if the administrators de bonis non, by reason of their succession to property of the testator, might be held chargeable with the trust, to the extent of the property so received and held by them, yet the death of Charles Woods terminated the trust; and thereupon the only obligation or duty remaining was to pay over the amount to his appointee or administrator. Such administrator was appointed in August 1859. A right of action then accrued for the amount of the trust fund, against which the general statute of limitations at once began to run. Their liability upon this ground, if any arose, was that of a mere constructive trust, against which it is held that the general statute of limitations may be set up as a Oar. Trecothick v. Austin, 4 Mason, 16, 29. Robinson v. Hook, Ib. 139, 152. Farnam v. Brooks, 9 Pick. 212, 243. Johnson v. Ames, 11 Pick. 173, 182. Their liability would not be upon the instrument, nor in their representative capacity ; Holden v. Fletcher, 6 Cush. 235 ; but by implication of law from the possession of the fund from which the trust ought to be discharged. It would be in simple contract therefore, for which six years, and six years only, would be required to complete the bar.

By amendment of the bill, the heirs and devisees of William H. Prentice have been made parties. But as against them the claim can stand no stronger than against the administrators. If it could ever have been maintained as a constructive trust, i* is barred by the general statute of limitations. When the bill was brought, more than six years had elapsed since the claim became absolute. The full amount due was then recoverable by an action in proper form, upon the obligation of the testator, under the Gen. Sts. e. 101, § 32. That right of action is clearly barred. If any right of action other than that has ever accrued against the heirs and devisees, it accrued at the same time ; and the limitation of six years is a complete bar thereto.

Bill dismissed.