McClure v. Colyear

Citations

• 80 Cal. 378
• 22 P. 175
• 1889 Cal. LEXIS 922

Syllabus

<p>Express Trust—Estates of Deceased Persons—Rights of Heirs — Investment by Widow—Purchaser with Notice — Pleading.— A complaint by two children of a deceased person against their mother, the widow of the decedent, and her second husband, averring that the deceased left certain personal property as his separate estate; that no administration had been had thereon, and that there were no claims against the decedent or his estate; that said widow had taken possession of and had invested the whole of said property and its proceeds in certain real estate purchased in the name of her second husband; and that both of the defendants knew and always acknowledged the right of plaintiffs each to one third of said estate until within sixty days before the commencement of the action, — shows an express trust in the hands of the mother as to the respective shares of plaintiffs in the fund, the character of which was not changed by the purchase of the land in the name of the second husband, he having knowledge at the time that it was a trust fund, and is sufficiently definite and certain to put defendants upon their answer.</p> <p>Id. —Tenancy in Common — Possession. —The children and the widow in such case are also tenants in common in the ownership of the fund and in the equitable ownership of the land in which the fund was invested, and the possession of the widow was the possession of the children through her.</p> <p>Id. — Statute of Limitations. — The statute of limitations does not begin to run in favor of the trustee of an express trust, nor in favor of a tenant in common in possession, unless a repudiation of the trust or of the co-tenancy is made by clear and unequivocal words or acts, nor until such repudiation and an adverse claim to the property are brought home to the knowledge of the cestui que trust or of the co-tenant whose rights are denied. Nor does it ever run while the cestui que trust is in possession of the trust estate.</p>