The Somerset reporter., 1903-12-24

Clerk OF Courts Seekins has recently
received the rescript in the following
Somerset case from the law court as
follows:
Lucinda E. Libby in equity VS. Clarence Z.
Frost ct ais. Rescript by Strout, J.
Bill in equity claiming trust in the plain
tih's favor upon certain land known as the
Lancey lot, the legal title of which is now
held by the defendant and contained in a
mortgage of Dec. 3, 1885, with three other
parcels Of land given by Samson Hart to Eu.
gene Bickford.
The plaintiff is the child and only living
heir of Samson Hart and his wife, Hannah
Hart. Samson died, June IS, sos, and
Hannah died, Nov. 3, 1880. In August,
1881, Samson married Mary Ann Bckford,
widow with two children. December ;,
1888, being owner Of these four parcels Of
land, one OF them being the lancey lot he
conveyed them all to Eugene Bickford, son
of his second wife. The consideration for
the deed was the bond of Bickford to MAIN
tam Samson and his wife for life, pay their
funeral expenses, erect grave stones, and pay
samson $50, if he required, and his wife $40
a year after the dtCeasc Of Samson. This
bond containing other conditions, not mate
rial in the present case, was secured by mort
gage Of the same date from Bickfurd to Sam
son Of the same four parcels and also con-
tanned the further provision that Bickford
should pay Lucinda Libby (ths PLAINTIFF
5000 in three months after said Ilart's de-
cease.
January IS, 1890, Bedford exchanged the
Jancey lot with Cora +. Walker for a lot Of
hers. Both lots being regarded Of equal
value, the exchange was even. 1t was effect
ed by deed from Bckford to Walker OF the
Lancey lot, and deed from Walker to him
of her lot, hereafter called the Walker lot.
Samson Hart and his wife at the same time
released to Walker their interest in the Lam
cey lot under the Bickford mortgage and took
a mortgage from Bickford on the Walker lot
to secure the performance Of the bond for
maintenance.
February rs, 1890, this plaintiff brought a
bill in equity against Samson Hart Angie A..
Grant the daughter Of his second wife, and
Eugene Bickford, brother of Angie Samson
in January, 1883, had conveyed to Angie
Grant lot Of land known as the IIeagan lot
She claimed in her bill that all five parcels of
land were purchased with the money of her
mother, Hannah, and that her father held
them all in trust for Hannah, and upon her
death, in trust for herself, this plaintiff. She
alleged in that bill that Samson and Bick-
ford had exchanged the Lanccy lot for the
Walker lot; that the exchange was an "even
one" and that the trust in her favor "iu-
stantly attached to the Walker lot In her
prayer She asked that Samson and Bickford
''may be adjudged and declared
to hold the Harvey Robinson lot, the Mil
Ter Richardson lot the McNlaster and Nelson
lot, and the Walker house and lot in trust
for her, and that they be required to convey
the same to her. That suit was tried before
Judge Walton, as referee, and eliminated in
a final decree Of the court.
If the plaintiff had a cestui que trust inter-
est in the Lancey lot, when it was exchanged
fer the Walker lot, she had the option to
charge the Lancey lot or the Walker lot with
the trust. She elected to look to the Walker
lot, Of the value of about $1,000, and thereby
waived and released her claim on the Ianccy
lot. Held: That having made her election
with full knowledge Of the facts, she is
bound by it, and is estopped to assert a claim
upon the Lancey lot.
Held ALSO That it is very clear the
plaintiff not only did not accept the trust as
to the 5000, but repudiated it.
In her first bill in equity she claimed that
all the lands, in which her father, Samson
Hart, held the legal title, belonged to her
mother, and that as her sole heir she was
entitled to the entire estate. # that claim
was true in fact her father could not charge
any trust upon the land. Her claim Of the
entire title was absolutely inconsistent with
any trust for 5000 charged upon the same
land. Such claim deliberately made and in
sisted upon at the trial Of that case was a
full remuneration Of the trust now claimed,