Opinion
No. 4576.
July 29, 1932. Rehearing Denied November 2, 1932.
Appeal from the District Court of United States for the Eastern District of Illinois; Fred L. Wham, Judge.
Suit by Frank H. Williams against Anna S. Williams and others. From a decree of dismissal, plaintiff appeals.
Reversed and remanded, with instructions.
This is an appeal by Frank H. Williams (hereinafter sometimes called Frank) from a decree of the District Court dismissing his bill of complaint for want of equity.
Frank filed his bill of complaint against Anna S. Williams (hereinafter sometimes called Anna), individually and as administratrix of the estate of Charles C. Williams (hereinafter sometimes called Charles), deceased, and as administratrix with the will annexed of the estate of Thomas Williams (hereinafter sometimes called Thomas), deceased, Leland T. Williams (hereinafter sometimes called Leland), and Jessie Evelyn Stone (hereinafter sometimes called Jessie).
Generally, the bill alleged that Frank is a citizen and resident of Missouri; that Anna, individually and as administratrix and as administratrix with the will annexed, as aforesaid, is a citizen of Illinois, resident in the Eastern District of Illinois; that Leland is a citizen and resident of Indiana; that Jessie is a citizen and resident of California; that Thomas was the father of Charles, Walter Williams (hereinafter sometimes called Walter), and Frank; that in 1893 Thomas was the owner of a large amount of real and personal property; that in that year Charles became the general agent of Thomas in and about the management of all the affairs and business of Thomas, and remained such agent until the death of Thomas in the year 1905; that a relationship of trust and confidence existed between Thomas and Charles; that beginning at a time about eighteen months prior to July 25, 1896, Thomas became, and continuing up to the time of his death was, of unsound and feeble mind, and wholly incapable of transacting any business whatsoever; that during said period of time Charles managed, transacted, and handled the affairs and business of Thomas; that Thomas left a last will, wherein Charles was named as executor; that said will contained a clause which provided that Charles, the executor thereof, should "sell all of the rest, residue and remainder of the real and personal estate of which I may die seized and which I have not herein and hereby specifically devised or bequeathed," and which provided that Charles, as executor, should "with all reasonable dispatch, collect and convert into money all rents, accounts, claims and notes, mortgages and choses in action of every kind and description owing to or belonging to me at the time of my death," and that Charles, as executor, should distribute the proceeds thereof to the wife of Thomas, Lovina Williams, and the sons Walter, Frank, and Charles, in equal parts, share and share alike, subject, however, to the provision that the share or shares bequeathed to Walter and Frank should be managed and controlled by the executor, Charles, until Walter and Frank should attain the age of thirty years; that through the general agency aforesaid, and because of the impaired mental condition of Thomas, Charles, in the lifetime of Thomas, came into possession of a large amount of the real estate and personal property of Thomas, which passed, under the residuary clause aforesaid, to Charles as executor, or, more properly speaking, trustee; that Charles had never filed a final account as executor or as trustee under the will of Thomas, and had never accounted to Frank for his share of the property which had so come into the possession of Charles and had passed to Charles as executor, or trustee, under the clause of the will aforesaid; that Charles died on September 11, 1919, and that Frank had no knowledge and had not learned of the misappropriation by Charles of the property of Thomas until a time approximately one year after the death of Charles.
Generally, the bill prayed that Anna (who was the widow of Charles), individually and as administratrix of the estate of Charles and as administratrix with the will annexed of the estate of Thomas, and Leland, who was the son of Charles, and Jessie, who was the widow of Walter, be decreed to account to Frank for the property so alleged to have been misappropriated by Charles and the proceeds and income thereof.
The bill was filed on September 12, 1922.
Anna was served with process within the jurisdiction of the court. Substituted service of process was had upon Leland in Indiana, and upon Jessie in California. Anna appeared by counsel and moved to dismiss the bill because of want of jurisdiction of the court over the subject-matter, laches of the plaintiff, the bar of the statutes of limitations, and want of equity appearing on the face of the bill.
Leland appeared specially and moved to quash the service of process upon him for want of jurisdiction of the court to enter any decree against him. In support of his motion, he showed to the court that he had no personal or real property in the Eastern District of Illinois.
Jessie filed an answer in the nature of a disclaimer.
The motions of Anna and Leland were overruled. Leland failed to answer. Anna filed an answer, wherein she denied the incompetency of Thomas, denied the misapplication by Charles, and set up certain statutes of limitations and laches.
The case was referred to a master.
The master found that a confidential relation existed between Thomas and Charles from the time Charles returned from Omaha to Hoopeston in the winter of 1893-94 until the death of Thomas on February 28, 1905; that the relationship was one of complete and entire confidence and trust on the part of the father Thomas in favor of the son Charles in all business matters; that the decree in a certain suit in equity referred to as the Baxter Case, conclusively determined, as against Charles and those claiming under him, that Thomas was mentally incompetent to transact ordinary business from and after the date of the decree, which was rendered at the May term, 1896, of the Vermilion circuit court; that the testimony of Charles in that case and of others, witnesses produced by Charles, served as a binding admission of Charles that Thomas was not mentally competent to transact business after about January, 1895; that in respect of a certain tract of land, containing 435 acres, and located in Benton county, Ind., known as the Templeton land, which had been conveyed by Thomas to Charles, the deed of Thomas to Charles was a nullity because of the fraud of Charles and the confidential relation between the parties and the mental incapacity of Thomas; that Charles accepted the trust and executorship under Thomas' will, but fraudulently concealed Thomas' ownership of the Templeton land, and never accounted for the income of the land, nor carried out the trust by selling the land and distributing the proceeds of sale; that the defense of laches was unavailing as to this Templeton land; as to all other items of real estate and personal property, the master held either that the statutes of limitations or the doctrine of laches barred recovery by the plaintiff.
On objections to the master's report, standing as exceptions thereto, the District Court overruled the exceptions of Frank to the master's report, and found that the conclusion of the master that Thomas was incompetent and incapable of doing business at all times during the period from 1895 to the time of his death was not fully sustained by the evidence; that the decree in the so-called Baxter Case was not conclusive on this point, although the decree was admissible in evidence and was binding on Charles and those claiming under him as to the mental condition of the father at the time of the decree; that there could be no question but that the evidence does show that at intervals, perhaps a considerable portion of the time, Thomas was incompetent and incapable during a large part of the time that Charles acted as his confidential agent; that there could be no question but that Charles occupied a confidential relation with his father during all of that period; that the doctrine of laches prevented a recovery by the plaintiff in respect of the Templeton land, as well as all other items of real estate and personal property, referred to in the bill, and that the bill should be dismissed for want of equity, which was accordingly done.
Thomas was 66 years of age in the year 1894, the beginning of the period covered by the transactions complained of in the bill of complaint, and died in 1905 at the age of 77 years. Charles was 34 years of age in 1894, and died in 1919 at the age of 59 years. Lovina Williams died, intestate, on December 16, 1913. Walter was 16 years of age in 1894, and died in 1909 at the age of 31 years. Frank was 14 years of age in 1894. Thomas was, substantially all of his life and at the time of his death, a resident of Hoopeston, Ill. Charles, after he reached young manhood and up to the year 1893, lived in Omaha, Neb.
In 1893, one Thomas Hoopes, for many years a resident of Hoopeston and a relative of Thomas, died, leaving an estate approximating $500,000 in value and a will, whereby he constituted Thomas and one James A. Cunningham executors thereof. Charles, at the request of his father Thomas, returned from Omaha to assist in the administration of this Hoopes estate, and an office was established by the executors in Hoopeston, where the business of the estate was transacted. Thomas, at the same time, was in feeble health, and, after the return of Charles from Omaha, took no part whatever in the administration of the Hoopes estate. Practically all of the work was done by Charles, Thomas signing the necessary papers relating to the administration of the estate with his coexecutor Cunningham at the direction of Charles and the attorney for the estate. Thomas received a legacy under the will of Hoopes of $18,531, and his share of the executors' commissions amounted to $16,325.76. In March, 1896, Thomas filed a bill in equity in the circuit court of Vermilion county against one Baxter to restrain the negotiation and collection of a certain note for $500, the consideration for which was claimed to be certain work on the Templeton land, the title to which was then in Thomas, upon the ground, among others, that he (Thomas) was mentally and physically incapable of understanding ordinary business transactions. This bill in equity was verified under oath by Charles, as agent of Thomas, and a temporary injunction was obtained upon the bill upon the affidavits of certain persons submitted at the time. An answer was filed in that case, denying that Thomas did not have mental capacity to transact business, and, a replication having been filed, the case was referred to a master in chancery. Thomas did not appear at the trial of this case. Charles appeared for him and managed the case. After the coming in of the master's report, a decree was rendered, wherein it was adjudged that Thomas, for at least six months prior to February 17, 1896, the date of said note, had not been able to understand or transact business.
In the case at bar, a number of witnesses testified that Thomas, during the period from about 1894 to the date of his death, was incapable of transacting ordinary business and had no continuity of thought, and a somewhat larger number of witnesses, but the opportunity of some of whom at any rate for seeing and knowing Thomas was not as good as that of the witnesses for the plaintiff, testified that they had not observed anything wrong with Thomas' mental processes during the period in question.
Upon his death in 1905, Thomas left a will and two codicils thereto. On the date of the last codicil, April 2, 1901, Charles signed and caused Lovina Williams, the wife of Thomas, and her other sons, Walter and Frank, to sign the following paper:
"We, the undersigned, having examined the last will and testament of Thomas Williams, bearing date the 14th day of February, 1896, and the first codicil thereto, bearing date 30th day of July, 1898, and the second codicil thereto, bearing date 2nd day of April, 1901.
"And having examined all the provisions of said instruments do hereby approve the same and hereby certify that the same is in all respects satisfactory to us and each of us."
On November 15, 1894, Thomas obtained title to the so-called Templeton land (435 acres, located near Lafayette, Ind.) by a deed from Leroy Templeton for a consideration expressed in the deed of $24,560. On December 11, 1894, he gave a purchase-money mortgage to secure two notes of $8,000 each, dated December 1, 1894, and due, respectively, December 1, 1895, and December 1, 1896. The purchase-money mortgage notes were paid, and on December 5, 1896, Thomas executed a mortgage on this land to Provident Life Insurance Company to secure a loan of $7,000. On December 28, 1896, Thomas executed a warranty deed to Charles, conveying the Templeton land, subject to the $7,000 Provident Life mortgage, the Templeton mortgage having been released, for a consideration expressed in the deed of $25,000.
On March 24, 1898, 560 acres of land in Vermilion county, Ill., were purchased from one Armstrong for a purported consideration of $33,000, and title taken in the name of Charles. It is admitted that 240 acres of this land belonged to Thomas, although no record title was ever vested in Thomas. On July 14, 1898, Charles and wife executed a quitclaim deed, bearing that date, to Thomas for an expressed consideration of $1, conveying 240 acres of this land to Thomas. The deed was never recorded. Whether it was actually delivered to Thomas does not appear, but it was produced at the trial by the defendants. Anna claims that the consideration for this land, as between Thomas and Charles was as follows: Thomas turned over to Armstrong 9,000 bushels of corn on his Gibson City farm for $3,000; he put in $2,000 in cash; was to pay one-half of the note known as the Martin Davis note, $2,000; and assumed a mortgage to Isaac Hoopes for $6,000, making a total of $13,000. Charles put into the deal 6,000 bushels of corn on the Templeton land for $2,000, assumed one-half of the Davis note, $2,000, turned in 160 acres of land in Nebraska for $3,000, and put up $11,830 in cash, or a total of $18,830. On the assumption that this was the consideration put up by each, the appellee concludes that Thomas had a 240-acre interest in the farm. The plaintiff points out that the corn on the Templeton land did not belong to Charles. The evidence shows that it was on the Templeton land in January, 1897, and therefore could not have been produced on the farm after December 28, 1896, when Thomas conveyed the land to Charles. On February 23, 1901, the Armstrong land was sold to one Banta for a consideration of $36,000. The Bennett land, consisting of 1,120 acres, in Pulaski county, Ind., was purchased March 13, 1901. Of this 1,120 acres, 320 acres were paid for by one Bond, and the same deeded to him by Charles on March 16, 1901; 800 acres of the Bennett land remained of record in the name of Charles. The record shows that, immediately after the sale of the Armstrong land, Charles negotiated for the purchase of the Bennett land. After the Bennett deal was completed, Charles, on April 1, 1901, executed a deed to Thomas for 320 acres of the Bennett land. This deed was not filed for record during the life of the father, but was filed on January 17, 1914, nine years after the father's death. Concerning the purchase of the Bennett land, Bond testified as follows: "I went to Indianapolis to see Mr. Bennett and the next day closed the deal for the 1120 acres at $37.50 per acre. Charles C. Williams only wanted 800 acres of it for his father, Thomas Williams. The deeds were taken in the name of Williams and Bond. A division was afterwards made and 800 acres was deeded to C.C. Williams. C.C. Williams explained at the time that he was taking the title in his own name because his father's state of mind was incompetent to make such transactions and he wanted to take the title in his own name if he wanted to sell it again. That was before the transaction was closed."
In 1893 Thomas owned 910 acres of land free of incumbrance at Ambia, Ind. He owned 320 acres of land in Gibson City, Ford county, Ill., unincumbered. In 1894 he acquired title to the Templeton land, consisting of 435 acres, subject to a mortgage of $7,000. The record shows that the average rent of all this land was $5 per acre per year, giving a gross annual income of more than $8,000.
Previous to the purchase of the Templeton land, Thomas had sold a tract of land near Hoopeston to one Bowen, and held a mortgage thereon for $13,850. After Charles took charge of the business, Thomas held a mortgage for $7,500 on the Victor land. Thomas became entitled to $18,531 as legacies under the will of Thomas Hoopes, deceased, and entitled to one-half the commissions of the executors of that estate, amounting to $16,325. When he died, he had approximately $4,000 in personal property on hand, owned the Ambia land and the Ford county land, and also owned the 320 acres part and parcel of the Bennett purchase.
Walter T. Gunn and Harold F. Lindley, both of Danville, Ill., and Edmund D. Adcock, of Chicago, Ill., for appellant.
J.H. Dyer, of Hoopeston, Ill., and George F. Rearick and James A. Meeks, both of Danville, Ill., for appellees.
Before ALSCHULER and EVANS, Circuit Judges, and BARNES, District Judge.
The first question which presents itself is the one raised by the contention of the appellee Anna that the District Court lacked jurisdiction over an indispensable party, and therefore could not proceed to judgment as against her. She contends that Leland is an indispensable party.
Anna was a resident of Illinois, and was personally served with summons. Leland was a resident of Indiana, and substituted service was had upon him pursuant to section 57 of the Judicial Code (section 118, title 28, USCA).
The case at bar is a suit by one of the beneficiaries of the trust under the ninth clause of the will of Thomas to establish a trust and for an accounting against Anna, individually and as administratrix with the will annexed of the estate of Thomas, and as administratrix of the estate of Charles, and Leland. The claim of the plaintiff is that Charles, as the general agent of Thomas, during a period when Thomas was wholly incapable of transacting business, converted to his (Charles') own use certain property of Thomas, which property should and did pass under the ninth clause of the will of Thomas to Charles, as trustee for the benefit of the plaintiff and others; that Charles never accounted, and that Anna, as administratrix of Charles and as an heir at law of Charles, should account. The ninth clause of the will of Thomas, which created the trust in question, directed that the real property devised thereby should be sold and converted into cash. Accordingly, all of the property which should and did pass under the ninth clause of the will of Thomas is, as a result of the application of the doctrine of equitable conversion, to be considered as personalty. 2 Perry on Trusts (7th Ed.) § 448; Burbach v. Burbach, 217 Ill. 547, 75 N.E. 519; Seymour v. Freer, 8 Wall. 202, 214, 19 L. Ed. 306; Handley v. Palmer (C.C.) 91 F. 948.
Thomas died domiciled in Vermilion county, Ill. His will was probated there. Charles was domiciled there and died there, and his estate was probated there. The situs of moveables, for the purposes of succession, is the domicile of the decedent. Wharton, Conflict of Laws (3d Ed.) § 561; Eidman v. Martinez, 184 U.S. 578, 581, 22 S. Ct. 515, 46 L. Ed. 697. The situs of the property passing under the ninth clause of the will of Thomas is Vermilion county, Ill., in the Eastern District of Illinois. Therefore this suit was properly filed in the court below.
Furthermore, the general rule is that an executor or administrator cannot be called to account, so far as concerns assets received by him in the land of his appointment, except in the state in which he took out letters of administration. Wharton, Conflict of Laws (3d Ed.) § 616; Lawrence v. Nelson, 143 U.S. 215, 222, 12 S. Ct. 440, 36 L. Ed. 130; Burrowes v. Goodman (C.C.A.) 50 F.2d 92, 77 A.L.R. 249; Moore v. Mitchell, 281 U.S. 18, 24, 50 S. Ct. 175, 74 L. Ed. 673.
On the facts aforesaid, and pursuant to section 57 of the Judicial Code, Leland was properly brought into this proceeding by substituted service of process, and he will be bound by a decree herein to the extent permitted by said section 57.
Even if Leland be not bound to any extent by the decree herein, then, in a suit by Anna against Leland, the decree to be entered herein would not be res adjudicata as against Leland, but it does not follow from that that she could not have contribution. On the contrary, it should be assumed that the court, to whom a claim for contribution may be presented, will proceed justly and in accordance with law, and that she will be awarded such contribution as may be due to her.
The court's conclusion on this branch of the case is, first, that Leland was properly brought in by means of substituted service, and that any decree entered herein will be binding upon him to the extent provided by section 57 of the Judicial Code; and, second, that the motion of Anna to dismiss the suit was properly denied.
The two principal issues of fact in this case are, first, the question as to the existence or nonexistence of a confidential relationship between Charles and his father, Thomas, and, second, as to the mental capacity or incapacity of Thomas during the last ten years of his life.
It will be observed that the master and the District Court are in accord on the proposition that a confidential relation existed between Charles and Thomas at all times during the period when the transactions in question in this case were had. On the question of the mental capacity or incapacity of Thomas during this period, the master and the District Court are not fully in accord. The finding of the District Court on this issue of fact is presumptively correct, but it may be successfully assailed if the court went against the clear weight of the evidence. Uihlein v. Gen. Electric Co. (C.C.A.) 47 F.2d 997, 1002, and cases there cited. We have, accordingly, examined all of the evidence in the record bearing upon this question. As appears above, the master on this question gave conclusive effect to the judgment in the case of Thomas against one Baxter, in which Thomas sought to restrain the negotiation of a promissory note signed by Thomas on the ground that Thomas was incompetent to transact business. The bill of complaint in the Baxter Case was signed and sworn to by Charles and alleged the incompetency of Thomas. While we are not inclined to hold that the judgment in the Baxter Case was res adjudicata in this case against Charles and his privies on the question of the incapacity of Thomas, yet we are inclined to hold, and do hold, that the bill of complaint in that case, signed and sworn to as it was by Charles, constituted a formal admission against interest by him, and now by his privies, the appellees in this case, that Thomas was at that time incompetent to transact business.
After an examination of the entire record, we conclude that the clear weight of the evidence supports the conclusion of the master on this issue of fact, and that, accordingly, the finding of the District Court on this issue is against the clear weight of such evidence.
The defenses of the appellee Anna, based upon various statutes of limitations, and her defense, based upon the doctrine of laches, may be considered together.
The master, as to all claims of the plaintiff, except the claim to the so-called Templeton land, gave effect to the doctrine of laches and the statutes of limitations set up by the appellee Anna as a defense. The District Court extended the operation of those defenses to all claims of the plaintiff.
The suit at bar is one to establish a trust and for an accounting by a cestui que trust against the personal representative and the heirs at law of the deceased trustee. The suit was started three years after the death of the trustee. The property in respect of which it is sought to establish a trust, and of which and the rents, issues, and profits of which an accounting is desired, is alleged to have been wrongfully appropriated by the person who afterwards became trustee, while he was acting as a general agent of his father during the mental incapacity of the father. The father, or a conservator of the father, might have called the agent to account, but the incompetency prevented the running of any statute of limitations against him, and also effectually prevented the application of the doctrine of laches to him. The father left a will wherein, by the ninth clause thereof, he established a trust in respect of property not otherwise disposed of, and wherein the son, who had been agent, was designated trustee. The record, and particularly that part of the record which discloses that the son caused the other heirs at law to ratify, approve, and confirm this will and the codicils thereto, shows that the making of this will and the codicils thereto was the result of the son's influence. By this will, the son was appointed trustee of property which the father or his conservator might have recovered. The son accepted the trust, and thereupon it became his duty, as trustee, to call upon himself, as agent, to account for the property which he is alleged fraudulently to have converted and the rents, issues, and profits thereof. This he did not do. Neither did he, during his lifetime, do anything which would start the statutes of limitations to running, or which would mark the beginning of a delay which might in course of time constitute laches. He did not file an account as trustee, or present to the plaintiff any paper which showed, or purported to show, that with which he charged himself as trustee.
"The law is well settled that, as between trustee and cestui que trust, in the case of an express trust, the statute of limitations has no application, and no length of time is a bar. Against an express and continuing trust time does not run until repudiation or adverse possession by the trustee and knowledge thereof on the part of the cestui." 2 Perry on Trusts, § 863. See, also, City of New Orleans v. Warner, 175 U.S. 120, 130, 20 S. Ct. 44, 44 L. Ed. 96; City of New Orleans v. Fisher, 180 U.S. 185, 196, 21 S. Ct. 347, 45 L. Ed. 485.
There was no repudiation by Charles, there was no adverse possession by Charles, and accordingly there could not be knowledge of such repudiation of adverse possession by the plaintiff.
There is another aspect of this case which must not be forgotten. Thomas was 66 years of age when the plaintiff was 14. Charles was 20 years older than the plaintiff. The blood relationship between Charles and the plaintiff was that of brothers, but, under the facts in this case, the relationship was closer than that. It was more nearly that of parent and child. The plaintiff was a son of his father's later years. The plaintiff's real father was physically a cripple, and became mentally crippled and incompetent to transact business when plaintiff was only 14 years old. At that time the brother Charles assumed the headship of the family, and was by all members of the family regarded as the real head thereof. So, when we are considering whether plaintiff delayed so long in the bringing of the suit as to bar the same, we are actually considering whether a child has delayed so long against his parent or his parent's estate as will bar the child's cause of action. This suit was started 3 years after the death of Charles. Furthermore, there is undisputed proof in the record that the plaintiff did not know of the frauds therein complained of until within one year of the time of bringing suit.
"No time will protect a fraud so long as it is concealed; therefore, until a fraud is discovered, or could have been discovered by ordinary diligence, the statute does not begin to run; for no cause of action exists within the knowledge of the party entitled to the action." 2 Perry on Trusts, § 861. See, also, So. Pac. Co. v. Bogert, 250 U.S. 483, 39 S. Ct. 533, 63 L. Ed. 1099.
If it be said that the application of the foregoing rules places appellees at a disadvantage, it may be answered that such disadvantage, if any, will come about, not from the application of those rules, but from the failure of appellees' decedent and intestate to perform the duties which devolved upon him, first, as agent, and then as trustee. Certain of these duties were the duty to refrain from making a profit in dealing with or for his principal, the duty of keeping accurate accounts, and the duty of rendering an accounting. If any disastrous consequences result, they will result from the breach of these and like duties, and not from the application of rules of law designed for the protection of the incompetent, the youthful, and those in ignorance of their rights.
It having been found to be a fact that from 1895 to the date of his death Thomas was mentally incompetent, and that a relation of trust and confidence existed between Thomas and Charles, it inevitably follows that there was a duty upon Charles, and is now upon his personal representative and heirs at law, to the extent of property received by them, to account for the acts and doings of Charles, as the agent of Thomas, and for the moneys, goods, and chattels of Thomas which came into Charles' hands as such agent, and also to account for and show the fairness of any and all of the transactions with Thomas and in the property of Thomas.
The master found that the plaintiff was entitled to a decree for a three-eighths share of the net selling price of the Templeton land over and above a $7,000 mortgage thereon, and for a three-eighths share of the net income of said land since 1896 over and above the interest and expense of this $7,000 mortgage. What would have been the master's findings in respect of the other items involved in this suit; namely, the Armstrong land, the Bennett land, the Buehler land, the mortgage of Thomas on the Templeton land, the Victor land mortgage, the Bowen mortgage, the Hoopes legacies, and the Hoopes estate commissions, had the master not found the statutes of limitations and the doctrine of laches were defenses as to these items, we do not know, except that we infer that the master was inclined to consider that the services rendered by Charles in and about the Hoopes estate would entitle him to a sum equal to the amount of the commissions. And we gather from the memorandum of opinion of the District Court that, had that court not given effect to the statute of limitations and the doctrine of laches as defenses, that court would have been inclined to sustain the master's report as to the Templeton land, but what would have been the disposition of the District Court in respect of the other items above referred to, had it not given effect to the statute of limitations and the doctrine of laches as defenses, we cannot determine. After an examination of the record, we are of opinion that the master's recommendation in respect of the Templeton land was equitable and should have been decreed, and should now be decreed. But, after an inspection of the record in respect of the other items involved in this suit, above referred to, we are unable to determine what should have been decreed or what should now be decreed, other than that the defendants' account in respect thereof, and that upon such accounting both sides have leave to introduce such further evidence as they may be advised is proper or necessary.
For the reasons above set forth, the decree of the District Court is reversed and the cause remanded to the District Court, with instructions to take further proceedings not inconsistent with the views hereinabove expressed.