Niccolls v. Niccolls

[445]

MELVIN, J.

The plaintiffs filed, their complaint wherein they asked that the defendants be compelled to recognize the validity of a certain trust-deed and to be governed by its provisions. A general demurrer to the complaint was sustained without leave to amend, and from the judgment entered for defendants plaintiffs appeal.

It is alleged that Rogers was the administrator of the estate of Eben Smith Niccolls, deceased; that plaintiff, Melinda Clemens Niccolls is the widow of said Eben Smith Niccolls; that the other plaintiffs are surviving children of said decedent an'd are his heirs at law; that Rogers resigned as administrator of the Eben S. Niccolls estate and Layne was appointed his successor; that on April 13, 1907, and from thence to the date of his death, November 4, 1909, one Robert Niccolls, an uncle of Eben S. Niccolls, was seized in fee simple of certain tracts of real estate, descriptions of which are fully set forth in the complaint; that during said period Robert Niccolls was possessed also of a large amount of personal property, which is also described; that Frances Niccolls is the widow of Robert and was his wife at the time of the execution of a certain purported deed of trust which is set forth in full in the complaint. The said deed by its terms seeks to create a trust to take effect upon the death of Robert Niccolls in favor of Frances Niccolls, his widow, and it also provides that upon her death the property shall be distributed to certain beneficiaries, Eben S. Niccolls being named as one of them. It is principally upon the terms of this deed of trust, so called, that plaintiffs base their supposed cause of action. The complaint contains averments that Robert and Frances Niccolls duly acknowledged the trust-deed of April 13, 1907; that the executed instrument was afterwards delivered to Eben Smith Niccolls by the trustors in escrow to be delivered according to its terms to the trustees, Thorp, Weldon, and Rogers; that after the death of Robert Niccolls in 1909, Eben Smith Niccolls delivered the deed to Rogers, who in writing accepted the trust declared therein; that Thorp had predeceased the trustor Robert Niccolls and Weldon refused to act; that Rogers took charge of all of Robert’s property, recorded the deed, and proceeded to carry out its terms, but that subsequently, in collusion with Frances Niccolls, the surviving trustor, he caused himself, on her petition and his own, to be appointed administrator of the