Groves v. Groves , 57 Miss. 658 ( 1880 )

Chalmers, J.,

delivered the opinion of the court.

John and Presley Groves filed their bill against their father’s widow, their stepmother, for the purpose of setting up for themselves a resulting trust in the family homestead, on the ground that it had been bought with the money of their mother (the first wife), and the deed taken by their father in his own name. One of their most important depositions should have been suppressed. The commissioner who took it was their uncle. A commissioner “ must bear such relation to the parties as will secure his impartiality in the execution of the commission. He, in other words, should not directly or indir'ectly bear to either party such a relation as would authorize a presumption of a bias in the execution of the trust in favor of or against either party.” Tillinghast v. Walton, 5 Ga. 335, 337; Bean v. Quimby, 5 N. H. 94; Bryant v. Ingraham, 16 Ala. 116. But, excluding the deposition taken by this commissioner, there remains sufficient competent evidence to establish the trust.

It is insisted, however, that the trust is barred by § 2175 of the Code, because, although only a short time intervened between the death of the father and the filing of this bill by the 'Complainants, more than ten years had elapsed since the death of their mother, and, as they were of age at the time of her death, and could at once' have instituted this proceeding, they are now barred by the statute referred to. The answer to this is, that the father; during his life, held the land as tenant by the curtesy, and though, under such circumstances, the cestui que trust in remainder may file his hill quia timet during the continuance of 'the life-estate, as was held in Taylor v. Smith, 54 Miss. 50, he is not bound to do so. A cestui que trust will not be deprived of his right to relief by any length of acquiescence, unless he has an immediate possessory title to the beneficial interest. For instance, when a person was entitled to the trust of a beneficial lease in remainder, after the determination of a previous life-estate, it was held that the statute did not begin to run until the death of the life-tenant. Hill on Trustees, 266 ; Bennet v. Colley, 5 Sim. 181. “ The rights of the cestui que trust cannot be barred until his rights fall into possession. If, therefore, the cestui que trust holds in remainder or reversion, the statute will not begin to run until his right to the possession falls in by the determination of the particular estate.” 2 Perry on Trusts, § 860.

Decree affirmed.