Cook v. Williams , 2 N.J. Eq. 209 ( 1839 )

The Chancellor.

This bill is filed for an account. The complainant’s intestate was a member of the society of Friends at Shrewsbury, in the county of Monmouth ; and being unable or unwilling to manage, her private affairs, executed to Jacob Woolley, who was clerk of the meeting and a man of good character and standing in that community, a power of attorney to receive all monies which might then be due her, or which might thereafter become due, and to maintain her out of the same. The original power of attorney is made an exhibit in the cause, and by it the clear- object of the parties was, to place all the property of this woman in the hands of Mr. Woolley, in trust, for her support and maintenance. This trust was accepted and acted under by the trustee until his death, which happened in the year 1826. Monies were received by him and put out, and Bathsheba Allen had her support. The trustee was authorized to use the principal as well as interest, if necessary, to take charge of and sell her goods and chattels, and to account whenever required. After the death of Mr. Woolley, nothing further, as it would seem, was paid her. The complainant seeks to have this trust settled. Whether upon a fair adjustment any thing is due or not, must depend upon the account to be taken, and is no part of the present inquiry.

The defendants insist that they are not bound to account, for two reasons. First, Because, after the death of their testator, certain persons belonging to the society of Friends, and upon whom this woman had become a charge, in the lifetime of Bathsheba Allen called upon the defendants, and compounded the matter by accepting certain notes in liquidation of the account. This would seem to have been nothing more than the performance of friendly offices on the part of these gentlemen, who desired to get .something in aid of the support which the society was then extending to this woman; but they expressly say that what they did was without any authority from her. This can have no binding legal effect, and whether made in good faith or not by the defendants, about which some question is made, it .can make no difference. As they had no authority to act in behalf of Bathsheba Allen, her representatives cannot be bound by their doings.

The remaining reason set up by the defendants against their liability to account, is, that the complainant’s demand is barred by the statute of limitations. This is really the only question in the cause. As to the general principle on this subject, there is no difficulty. It is well settled that no time can bar the claim in the case of a direct trust as between the trustee and cestui que trust. But whether this is a tiust of such a character, has created the doubt. This whole subject will be found fully discussed in the New-York cases, and it will be there seen how much perplexity it has given rise to. Decouche v. Savetier, 3 John. Ch. Rep. 216; Goodrich v. Pendleton, Ibid, 387; Coster v. Murray, 5 Ibid, 522 ; Kane v. Bloodgood, 7 Ibid, 90.

After examining the eases, and fully considering the import of this agreement, I can give it no other construction than that of an express, direct trust, to which no plea of the statute of limitations is applicable. The power of attorney placed the whole .property of this woman at the disposal of her trustee, not only her choses in action, but her goods and chattels, with full power to collect in the one and sell the other, and out of the proceeds (as we}l principal as interest) .to maintain and support her, and with a special provision that the trustee should account whenever required. This is unlike a delegated power confided to a person for ,a single or limited object; it reached her entire property, related to her whole living, and by its very terms was a continuing fiduciary engagement.

There would be no security, if the statute might be pleaded in a case like this, it would defeat its very object. But there is enough here, even if the statute did apply, to take this case out of its operation. There can be no pretence that the statute began to run in the lifetime of Woolley. He died in 1826. Within six years prior to the institution of this suit, the defendants actually went into a pretended settlement of this account, and took a receipt in full of the same. One of the defendants, Daniel Williams, admits in his answer, that he may have told the complainant that he believed there was a balance due Bathsheba Allen from the estate of Jacob Woolley ; but being interested in that estate himself, he did not intend thereby to make any acknowledgment binding the estate of Woolley. In fact, this executor refuses, from consciencious scruples, to set up the plea of the statute of limitations at all. There need not be an express promise to pay, but it may be inferred from an acknowledgment that the account is open and unsettled. Every feature in this case, as it appears to me, is against the justice and propriety of admitting this plea, and a decree must be entered in the usual form for an account, making to the defendants all reasonable and proper allowances.

Plea overruled. Interlocutory decree for an account and reference to a master.