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Dissenting Opinion: Brown, J.
unfairness in obtaining it, practised by the complainants on the defendant or his sureties." Griswold, Petitioner, 13 R. I. 125, 126.
It was not until after this petition had been denied, and an opinion intimated that he might be bound to pay the penalty of the bond in the event of a decree against Durant, that he filed this bill, and for the first time set up that he had been imposed upon in the execution of the bond. In the meantime Durant has died and Hazard has lost whatever advantage he might have had in the surrender of his body in compliance with the bond which plaintiff says he understood was to be given in discharge of the writ.
I cannot avoid the impression that the present defence is an afterthought. In any view of the case, I think the plaintiff failed to exercise that decree of diligence which this court said in Grymes v. Sanders, 93 U. S. 55, was necessary to entitle a party to rescind upon the ground of mistake or fraud.
I think the decree of the court below is right and should be affirmed.
MR. JUSTICE BRADLEY and MR. JUSTICE BREWER did not participate in the decision of this case.
A testator gave all his estate, real and personal, to his executors for the
term of twenty years, “ in trust, and for the uses, objects and purposes hereinafter mentioned,” and authorized them to make leases not extending beyond the twenty years, and to lend money on mortgage for the same period; and, “after the expiration of the trust estate vested in my executors and trustees for the term of twenty years after my de. cease,” devised and bequeathed one fourth part of all his estate, subject to the payment of debts and legacies, to his widow, one fourth to his daughter, one fourth to his brother, and one fourth to his nephew; gave certain legacies and annuities to other persons; directed his executors to pay a certain part of the income to his brother “until the final division of my estate, which shall take place at the end of twenty years after my decease, and not sooner;” that no part of his estate should "be sold, mortgaged (except for building) or in any manner incumbered until the end of twenty years from and after my decease, when it may be divided or sold for the purposes of making a division between my devisees as herein directed; ” and also that, in the event of any of the legatees or annuitants being alive at the end of the twenty years, there should then be a division of all his estate, “anything herein contained to the contrary notwithstanding; and in such case my executors, in making division of the said estate, shall apportion each legacy or annuity on the estate assigned to my devisees, who are hereby charged with the payment of the same according to the apportionment of my said executors;” and further provided as follows: “ It is my will that my trustees aforesaid shall pay the several gifts, legacies, annuities and charges herein to the persons named in this will, and that no creditors or assignees or purchasers shall be entitled to any part of the bounty or bounties intended to be given by me herein for the personal advantage of the persons named; and therefore it is my will that,
if either of the devisees or legatees named in my will shall in any way or manner cease to be personally entitled to the legacy or devise made by me for his or her benefit, the share intended for such devisee or legatee shall go to his or her children, in the same manner as if such child or children had actually inherited the same, and, in the event of such person or persons having no children, then to my daughter and her heirs." He also declared it to be his wish that W., one of his executors, should collect the rents and have the general supervision during the twenty years; and further provided that the share devised to his daughter should be conveyed at the expiration of the twenty years, for her sole use, to three trustees to be chosen before her marriage by herself and the trustees named in the will, and the net income be paid to her personally for life, and the principal be conveyed after her death to her children or appointees; and that, in the event of his wife's marrying again, the share devised to her should be held by his trustees for her sole use. Held: (1) That the powers conferred and the trusts imposed were annexed to
the office of executors; and that they took the legal title in fee, to hold until they had divided the estate, or the proceeds of its
sale, among the devisees of the residue. (2) That an equitable estate in fee in one fourth of the residue of the
estate vested in the brother and the nephew, respectively, from
the death of the testator. (3) That the limitation over, in case of alienation, was intended to
apply to the residuary devises, but was void because repugnant
to the estates devised. (4) That by the law of Illinois such an equitable estate could not be
taken, at law or in equity, for the debts of the owner. (5) That a conveyance thereof by such owner, in consideration of an
agreement of the grantee to buy up outstanding judgments against the grantor, and to sell the interest conveyed and pay one half of the net proceeds to the grantor's wife, no part of which agreement was performed by the grantee, gave him no right which a
court of equity would enforce. (6) That these conclusions were not affected by the following facts: The
daughter was married ten years after the death of the testator, having first, by indenture with the trustees named in the will, appointed them to be trustees for the benefit of herself and her children. Just before the end of twenty years from the testator's death, a mortgagee of all the real estate agreed with the trustees under the will to postpone payment of the principal and to reduce the rate of interest of the mortgage debt, provided the whole estate should continue to be managed by W.; and thereupon the testator's widow, brother, nephew, daughter and her husband, individually, and the widow, brother and W., as trustees of the daughter, made to W. a power of attorney, reciting that by the will the testator devised his whole estate in trust for the period of twenty years, which was about to expire, and upon the termina
Statement of the Case.
tion of that trust to the widow, brother, nephew and daughter in equal parts, and that it was deemed advantageous to the devisees, as well as to the mortgagee, that the estate should continue to be managed as a whole, and therefore authorizing W. to take possession, to collect rents, to pay taxes, debts against the estate, and expenses of repairs and management, and to sell and convey the whole or any part of the estate at his discretion.
These were appeals from a decree in equity by various persons asserting claims to the real estate devised by Ira Couch, who died January 28, 1857, to his brother James and to his nephew Ira, by his will dated November 12, 1855, and duly admitted to probate March 21, 1857, by which he appointed his wife Caroline E. Couch, his brother James Couch and his brother-in-law William H. Wood executors and trustees, and devised and bequeathed all his property, real and personal, to them in trust for the term of twenty years and for certain uses and purposes; and then, (after payment of debts and legacies,) in equal fourths, to his wife, to his daughter and her children, to his brother James, and to his nephew Ira, the son of James, with devises over in case of alienation. The material provisions of the will are copied or stated in the margin?;
1 “First. I do hereby give, bequeath and devise unto my beloved wife Caroline Elizabeth Couch, and my brother James Couch, and my brotherin-law William H. Wood, whom I hereby constitute, make and appoint to be my executrix, executors and trustees of this my last will and testament, and the survivors of them, and, in the event of the death of either of them, the successor appointed by the surviving trustee or trustees, all my estate, both real and personal, of every nature and description, for the term of twenty years, in trust, and for the uses and objects and purposes hereinafter mentioned and expressed, and for the purpose of enabling them more fully to carry into effect the provisions of this will, and for no other use, purpose or object; hereby giving and granting unto my said executors and trustees full power and lawful authority to lease my real estate at such time or times, and in such parcels, and in such way and manner and upon such terms and conditions as to my said executors and trustees, or the survivors or successors of them, in their sound discretion shall be deemed most advantageous and for the true interest of my estate, but no lease shall be granted of any building for a longer term than five years, and all leases shall expire at the end of twenty years from the time of my death. And I do also hereby authorize and empower my said executors and trustees, and the survivor or survivors of them and their successors, from time to time,
Statement of the Case.
and so much of the facts as is necessary to the understanding of the questions of law decided was as follows:
as they in the exercise of a sound discretion shall deem for the true interest of the estate, to purchase with the surplus funds belonging to my estate such real estate as they may deem proper and expedient, and take and hold the same, as such executors and trustees as aforesaid, upon the same trusts and for the same uses and purposes as the other real estate now owned by me; and more especially to purchase for the benefit and use of my estate, when they, my said executors and trustees, or the survivors and survivor of them or successors, shall think it expedient so to do, any real estate which is or may be subject to any such judgment, decree or mortgage as is or at any time hereafter may become a lien, charge or incumbrance for my benefit or for the benefit of my heirs or executors upon the same, and, again, that my said executors and trustees have the like discretion to lease the same.
And I do hereby authorize my said executors and trustees, if they shall think proper so to do, to loan on real estate situate in the city of Chicago any of the surplus moneys, arising from my said estate as aforesaid, on bond and mortgage; provided always that such real estate shall be worth double the amount so loaned thereon, over and above any other liens and incumbrances existing against the same, and that such moneys shall not be loaned for a longer period than twenty years from my decease.
“And generally I do hereby fully authorize and empower my said executors and trustees, from time to time, to improve my real estate, and invest all surplus moneys belonging to my estate, arising from any source whatever, and not wanted immediately, or required to meet the payments and advances, legacies, annuities and charges, required to be made under this my said will, in such way and manner as to them my said executors and trustees, or the survivor or successors of them, in the exercise of a sound discretion shall be deemed most safe and productive; but no moneys are to be invested, except in improving my real estate, or in the purchase of other real estate, or on bond and mortgage as aforesaid. And I direct that my executors or trustees or their successors shall not purchase or improve by building upon any real estate after the expiration of sixteen years from my decease.
" Relying on the fidelity and prudence of my said executors and trustees in executing the various trusts to them given and contided in and by this my last will and testament, my executors are authorized to mortgage my real estate to improve by building on the same, only in the event of the destruction of some of my buildings by the elements, and then only to supply other buildings in the place of those destroyed.
“ It is my will that all my just debts and the charges of funeral expenses be paid and discharged by my executors, as hereinafter named and appointed, out of my estate, as soon as conveniently may be after my decease, and the said debts become due; and I leave the charge of my funeral expenses to the discretion of my said executors.