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Gratz's Executors et al. v. Cohen et al.

him of as much trouble as possible, in a matter in which this defendant then believed, and still believes, he was doing her a

kindness.

"And this defendant further answering saith, that she has no recollection of ever stating to Elkalah M. Cohen, when Simon Gratz called on her, that she, the defendant, had no idea of seeing Simon Gratz, and was as much surprised at his calling on her as Miss Cohen could possibly be; nor has she any recollection of any private interview between herself andJohn Moss, at any time when Elkalah M. Cohen was at this defendant's; nor is she able to say how soon after the death of Beliah Cohen this defendant had an interview with Simon Gratz; nor more particularly to state what passed at that or any other interview than she has already stated.

"And this defendant further answering saith, that five hundred and fifty dollars, part of the consideration of the said agreement and conveyance, were paid to this defendant by L. J. Levy and the rest by Simon Gratz; and that the total amount of said consideration was agreed upon by and between this defendant and Simon Gratz; and that there was no other consideration of the same than the said sum of fifteen hundred dollars," &c.

The agreement itself thus entered into was as follows:"Acts to be performed by Mrs. Leah Phillips, surviving executrix of Joseph Simon, deceased:

"1. To execute deed for Michael Gratz's interest in unsold lands.

"2. To direct her attorney in suit, (in the Court of Common Pleas of Lancaster County, of January term, 1822,) No. 163,- Simon Gratz, Joseph Gratz, and Jacob Gratz, Administrators of Michael Gratz, deceased, v. Levi Phillips, Leah Phillips, and Beliah Cohen, Executors of Joseph Simon, deceased. Amicable action, August term, 1822, award of ref erees in favor of plaintiffs for $2,967.34,-to bring up the case on agreement, then permit the exceptions to be overruled, and the award affirmed.

"3. To settle the sum due on the sale of house and lots in Carlisle, in judgment in Supreme Court, which shall be submitted to the auditors to report thereon.

"4. In the suit, Levi Phillips, Leah Phillips, and Beliah Cohen, Executors of Joseph Simon, deceased, v. Simon Gratz, Joseph Gratz, and Jacob Gratz, Administrators of Michael Gratz, deceased. In the court of Lancaster County, September term, 1828. No. 2. Mrs. Phillips and her attorney to direct discontinuance of the action.

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Gratz's Executors et al. v. Cohen et al.

5. To transfer all her interest in the estate of Joseph Simon to Simon Gratz for the sum of $ (this blank amount to be fixed); if the product of this shall produce a sum exceeding the amount of the above judgments, and the sum to be paid as a consideration, then the excess to be paid over to Mrs. Leah Phillips.

"The blank to be filled up with fifteen hundred dollars; five hundred dollars in hand, five hundred dollars in one year, and five hundred dollars in two years.

"February 15, 1833."

❝S. GRATZ.

In the subsequent part of 1833, when the heirs of Beliah Cohen acquired a knowledge of this transaction, they applied to the State court in the county where the letters testamentary of J. Simon's estate had been granted, to dismiss Mrs. Phillips from her trust as executrix. But the court refused to do so, and she continued to be executrix as long as she lived.

In January, 1839, as has been already stated, the complainants filed their bill. They were two of the children and heirs of Beliah Cohen; the other children were citizens of Pennsylvania, and were made defendants.

After the filing of the bill, but before answer, Simon Gratz died, and after putting in her answer, Leah Phillips died also; and their respective representatives were made parties by bills of revivor.

The bill claimed to set aside the agreement and the deeds made to Simon Gratz, or, if the court would not grant them that remedy because the lands had passed into the hands of bona fide purchasers from Gratz, then that Gratz should be decreed to account for the value of them. The agreement and the deeds made in pursuance of it were alleged to be fraudulent on two grounds;

1st. As between the parties themselves, because advantage was taken of the necessities, weakness, and ignorance of an old woman, to obtain a transfer of the whole estate confided to her charge, for a consideration wholly inadequate, upon an agreement approved by her friends, to sell, no more than her own interest.

2d. As against the children of Beliah Cohen, because the purchaser colluded with the executrix or trustee in making a fraudulent application of the trust property to her own use, and to pay a judgment in favor of the purchaser, to the payment of which the complainants and their property were not bound to contribute.

The defendants all having answered, and a general replica

Gratz's Executors et al. v. Cohen et al.

tion having been filed, much evidence was taken upon points which it is not necessary to specify. Amongst other proceedings was an issue at law to determine the value of the lands.

In October, 1847, the cause came on for argument before the Circuit Court, which decreed in favor of the complainants, and that the executors of Simon Gratz should pay to the children of Beliah Cohen the one half of what Gratz had sold the lands for, and convey a moiety of the unsold part. Reference was made to a master to state an account, &c. Exceptions were taken to the report of the master, some of which were sustained and others overruled. The final decree of the court was as follows:

"That the said Louisa Gratz, Edward Gratz, David Gratz, and Isaac Prince, executors of the last will and testament of Simon Gratz, deceased, do account and pay to Samuel M. Cohen, Eleazer L. Cohen, Sarah M. Cohen, Rachel M. Cohen, Elkalah M. Cohen, Abraham M. Cohen, Joseph S. Cohen, and Joseph S. Cohen, administrator of Rebecca M. Cohen, deceased, children of Beliah Cohen, deceased, the sum of $9,415.29, with interest thereon from October 14, 1847, and costs; and that the said executors shall convey, by proper and sufficient assurances in law, the one moiety of the interest of Joseph Simon in all that certain tract of land designated in the deed of the 3d of April, 1833, from Leah Phillips to Simon Gratz by the warranty name of Samuel Laird. "Master's costs, $100, to follow the decree. ment accordingly, 29th January, 1848."

The defendants appealed to this court.

Order for pay

The cause was argued by Mr. Reed and Mr. Clarkson, for the appellants, and Mr. Dallas and Mr. Budd, for the appel

lees.

The counsel for the appellants made the following points: I. There is no such evidence of fraud on the part either of the executrix, Mrs. Phillips, in making the sale of the lands, or of Mr. Gratz in purchasing, as will authorize the rescission of the contract.

II. The appellees, children of Mrs. Cohen, are in no way jured by the agreement between Mr. Gratz and Mrs. Phillips, their interest either as heirs of their mother, or under the will of Mr. Simon, being more than absorbed by the judgment of $7,916, and the debt of Mrs. Cohen ($6,500) as executrix to her father's estate.

III. That Beliah Cohen, under the last codicil to Joseph Simon's will, took an absolute estate, and not an estate for life, and Levi Phillips was a trustee for her. Such is the plain

Gratz's Executors et al. v. Cohen et al.

meaning of the words of the codicil. "A power which, by the will, the party is required to execute as a duty, makes him a trustee for the exercise of it, and allows no discretion whether he will exercise it or not. The court adopts the principle as to trusts, and will not permit his negligence, accident, or other circumstances to disappoint the interest of those for whose benefit he is to execute it." Brown v. Higgs, 8 Ves. 574; 1 Story's Equity, § 98; 2 Ib. § 1068; Lindenberger v. Matlack, 4 Wash. C. C. R. 278; Coates's Appeal, 2 Barr, Penn. State Rep. 129. If Beliah Cohen had an absolute estate, then debts and judgments against her bound it, and the learned judge erred in saying that was a misapplication of trust funds. It was an application of funds not belonging to Beliah Cohen's

children.

IV. The proceeds of the lands which the appellees seek to recover, if they exceeded the amount of the judgment referred to in the acts to be performed, are liable to a claim on the part of the representatives of Mrs. Phillips, if to any body. The appellees do not claim under her.

V. This is a stale demand for the interference of a court of equity, which will not be favored. In 1833, when this alleged fraud was discovered, and the plaintiffs below sought redress in the State courts, Simon Gratz, the only individual acquainted with the details of these perplexed transactions, was in full life and vigor. In 1839, when the bill was filed, he was on his death-bed, and died in July, 1839. For five years and eleven months the plaintiffs slept on their rights. In a month the statute of Pennsylvania would have barred the claim by express limitation. Where an application is made for the interposition of this court, and there has been laches, it is not necessary that the actual limitation fixed by the statute should apply. This is well settled. Cholmondeley v. Clinton, 2 Jac. & Walk. 141: "At all times courts of equity have, upon general principles of their own, even where there was no statutable bar, refused relief to stale demands where the party has slept upon his rights"; cited with approval, Miller v. M'Intyre, 6 Peters, 66. It is a simple question, says Judge McLean, "Has the party slept on his rights?" Coalson v. Walton, 9 Peters, 83.

The doctrine that lapse of time may be used as a defence in equity, is far more favored than formerly. When the party is dead, probably his clerks and agents also dead, there being no one who can give any explanation of a paper, or show how it was prepared, and under what circumstances, this doctrine is especially favored. White v. Parnther, 1 Knapp (Privy Coun cil), 226.

Gratz's Executors et al. v. Cohen et al.

It is a most important element where a party sought to be affected has been allowed to die, and executors are made parties who have no knowledge of the original transaction. Ellison v. Moffat, 1 Johns. Ch. 47.

This doctrine is applicable to cases where fraud is charged; Prescott v. Hubbell, 1 Hill, Ch. 213; and this where the party charged is considered, as in this case, a trustee by operation of law, though it might not be as between a direct trustee and his cestui que trust. Decouche v. Savetier, 3 Johns. Ch. 190. Where a party is chargeable with laches to the extent of the statute of limitations, he must state in his bill that the discovery of the fraud was within the limitation. 1 Hill, Ch. 214.

In Carr v. Chapman, 5 Leigh, 185, Lord Camden's doctrine in Smith v. Clay, 3 Bro. Ch. 640, was cited with approval: "Nothing can call this court into action but conscience, good faith, and reasonable diligence; when this is wanting, this court is always passive"; and it is on these principles courts of equity, though they have adopted, are not tied down by, statutes of limitation. A shorter period of time, accompanied by gross negligence and acts of abandonment by those having an interest and competent to assert their rights, will bring their case within Lord Camden's principles. If the court saw that it was called on to do injustice, it would not move, however strong in point of original right the claim might be. So in Wagner v. Baird, 7 Howard, 234; and Bowman v. Wathen, 1 Howard, 189.

In McKnight v. Taylor, 1 Howard, 168, the statute of limitations was, as here, within a few months of coming into operation, yet plaintiffs were concluded by laches; there must be reasonable diligence to call into action the power of this court. There is difficulty which the law recognizes in doing justice, when the original transaction has become obscure and evidence may be lost.

To the same effect are Piatt v. Vattier, 9 Peters, 416, and Philips Belden, 2 Edw. 1. Equity gives effect to relatively short lapse of time, discouraging claims not promptly made, especially where there is no personal disability or other impediment.

No court has been more emphatic in its language favoring Japse of time than this court. Prevost v. Gratz, 6 Wheaton, 481: "Length of time necessarily obscures all human evidence, and it thus removes from the parties all immediate means to verify the nature of the original transaction; it operates by way of presumption in favor of innocence and against any imputation of fraud. Fraud or breach of trust ought not to be lightly imputed to the living, for the legal presumption is the other

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