Albretch v. Wolf

Citations

• 58 Ill. 186

Syllabus

<p>1. Trusts and trustees—construction of a particular instrument. B and H were partners in business. H was taken sick, and made his will, by the terms of which, it was provided, that if B would deliver over to W, the executor named in the will, certain notes which were held by the firm, for the benefit of H’s daughter, and would pay H’s debts, after his decease, B should have all the remainder of H’s estate, including the firm property. Before signing the will, H caused it to be read to B, who thereupon, verbally accepted the terms proposed, and it was then executed. After H’s decease, B demanded an appraisement of the property, to see if he would accept of it under the terms proposed, which was had, and he again accepted, and delivered over the notes to W, and retained the remainder of the property belonging to the estate. B failed to pay the debts, and they were proved up against the estate of H, and paid by W, the executor. Afterwards B and W died, and the administrator of W’s estate filed this claim against the estate of B, to which was pleaded, the statute of limitations and the statute of frauds: Held, that the statute of limitations constituted no bar to the action. That a direct trust was created by the express terms of the will, and thatB received the property under the conditions imposed, and entered upon the discharge of his duties, and that the relation of trustee and cestui que trust was thereby created between the parties; and not that of debtor and creditor.</p> <p>2. Statute oe limitations—in what cases statute will not apply. To say that every instance of trust is without the statute of limitations, would be stating the rule too broadly. A distinction has been taken when the trust is a continuing one between the parties, or when the trust has been created by will. In such cases the statute will not apply.</p> <p>3. Same—in what cases statute applies. The rule is well established, that so long as the duties of the trustee remain undischarged, the tr