facts, equity should deny relief. This, lest in the exercise of its great powers it reach a wrong result, because of the uncertainty of the facts with which it attempts to deal.

Such a situation seems to be presented by this case. The Daniel Kellogg estate, large in amount and complicated in its entirety, arose in 1836 upon the death of the testator. Interwoven with it, in such a manner as to afford many of the claimed grounds for relief, was the estate of David Hyde, which came into being in 1824.

With a constant means at hand of compelling an adjustment of this Daniel Kellogg estate, and with attention directly and publicly drawn by litigations and public records to improvident management of the estate, and to the insolvency of its executors, no effort seems to have been made to liquidate the estate and determine it throughout the many years that have elapsed since accurate proof of the facts was available. Witnesses are now dead, as well as parties, so that we are now practically without proof, except such as may be gleaned from ancient records, documents, etc. Under such circumstances, the court is asked to determine large property interests, the ownership of which rests upon facts now almost incapable of proof. Inferences which may now be drawn from cold and scant records of years ago are likely to be far different than inferences to be drawn from the same records, supplemented by other important but unrecorded facts, and no court is in a situation now well to judge the real purposes of John and Paulina Kellogg which pervaded the transactions under inquiry.

As was said in Calhoun v. Millard (121 N. Y. 81): "It is and always has been the practice of courts of equity to remain inactive where a party seeking their interference has been guilty of unreasonable laches in making his application. (Story's Eq. Jur., § 2520.*) The principle is stated with

* See 13th ed.-[REP.

great force and clearness by Lord CAMDEN in Smith v. Clay (2 Ambl. 645): Nothing can call forth this court into activity but conscience, good faith and reasonable diligence. Where these are wanting the court is passive and does nothing. Laches and neglect are discountenanced and, therefore, from the beginning of this court, there was always a limitation to suits in this

court.

In McKechnie v. McKechnie (3 App. Div. 91) the Appellate Division in this department applied the rule of laches to an action brought to redeem a mortgage, where it appeared that the transaction occurred some thirty-three years before the trial, and that nearly all the actors in the transaction at the time the cause of action arose had died.

This court likewise followed the same rule in McCartney v. Titsworth (119 App. Div. 547), there saying: "It may further be suggested that the claim of equitable title is a stale one which a court of equity would hardly aid the defendant to establish. The deed to the wife was given and title has been held by her thirty-eight years before her death, and it was more than four years after her death that the claim was first made by the defendant in this action. (See McKechnie v. McKechnie, 3 App. Div. 91; Town of Mount Morris v. King, 8 id. 495, 499, 500; affd., sub nom. Town of Mount Morris v. Thomas, 158 N. Y. 450, 456, 457; Hutchinson v. Hutchinson, 84 Hun, 482, 487.)"

to say:

In Matter of Neilley (95 N. Y. 382) the court took occasion "But assuming that the case was one solely of equitable cognizance and that, for any reason, the statute afforded no protection, it is the law of courts of equity, independent of positive legislative limitations, that they will not entertain stale demands."

The same rule was early recognized by the Court of Chancery in this State in Ellison v. Moffatt (1 Johns. Ch. 46).

It is suggested that the defense of laches is not available, inasmuch as it was not specifically plead.

This is not controlling. In equity it is the general rule, "that the relief to be administered will be adapted to the exigencies of the case as they exist at the close of the trial.'" (Lightfoot v. Davis, supra.)

It is also true that the defendant throughout the trial did assert the staleness of the claims of plaintiff, although basing his claim more particularly upon the Statute of Limitations than upon the general doctrine of laches. The laches necessarily appears upon the proof of plaintiff's case and may be availed of by the court in the final relief to be decreed.

It thus appears that if by reason of fraud a constructive trust arose in Paulina Kellogg, this action is barred by the six years' Statute of Limitations. On the other hand, if the trust was a continued trust and a mere extension of that in John, so that no Statute of Limitations has run, then relief should be denied. plaintiff by reason of the staleness of the claim and the uncertainty of the facts upon which relief must be predicated.

Under such circumstances, not only must the order and judg ment appealed from be reversed, but the complaint should be dismissed.

All concurred.

Judgment reserved upon questions of law and fact, and complaint dismissed, with costs, including costs of this appeal. Order granting additional allowance reversed. Order to be settled before Mr. Justice LAMBERT on five days' notice, at which time shall be submitted proposed additional findings to be made by this court and a memorandum of the findings of the trial court to be disapproved.

JOHN H. SIEMERS, Respondent, v. ADON MORRIS and Others, Appellants, Impleaded with JOHN MCQUEEN and ALMEDIA MCQUEEN, as Trustees of the Estate of JOHN MCQUEEN, Deceased, Defendants.

(Supreme Court, Appellate Division, Third Department, September 15, 1915.)

WILL-TRUST-PROVISION THAT ESTATE SHALL BE FREE FROM CLAIMS OF

BENEFICIARY'S CREDITORS.

A testamentary provision that no part of a trust estate for the maintenance and support of the testator's son "shall go to or be had by, or be obtained in any manner by any creditor" of the said beneficiary, is valid although it is provided that the beneficiary is entitled to have the corpus of the estate transferred to him when he shall "become free and discharged from all his debts, judgments, claims and demands against him."

Hence, a judgment creditor of said beneficiary is not entitled to maintain an action to have the trust adjudged invalid as to creditors and to charge the estate with the payment of his judgment.

APPEAL by the defendants, Adon Morris and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 16th day of October, 1913, upon the decision of the court after a trial at the Madison Special Term.

Brown & Woolver (R. H. Woolver of counsel), for the appellants.

George E. Philo (James E. Brewer of counsel), for the resopndent.

LYON, J. The single question for determination upon this appeal is as to the validity of a trust created by the will of Laura A. Morris, deceased, the relevant portions of which are as follows:

"Second. I give, devise and bequeath, to my daughter-inlaw, Lizzie Morris, all of my estate, both real and personal, of every name and nature, in trust, for the purpose hereinafter declared.

Third. I direct that she keep the real estate and all the personal property, invested in good securities, and apply such portion of the income of the estate from time to time as her judgment may deem necessary for the maintenance and support of my son, Adon Morris, and his family as long as my son. may live, (unless my property is sooner exhausted). And at the death of my son, Adon S. Morris, I direct that my property (or so much thereof as may be left) after supporting my son, Adon S. Morris, shall be divided equally or in equal proportions, to share and share alike to my son's, Adon S. Morris' children.

"Fourth. I hereby express and emphatically declare that no part of my estate, so given in trust to Lizzie Morris, for the maintenance and support of my son, Adon S. Morris, shall go to or be had by, or be obtained in any manner by any creditor of the said Adon S. Morris.

"Fifth. I further order and direct, that in the event, or in case that my son, Adon S. Morris, shall at any time during his lifetime, become free and discharged from all his debts, judgments, claims and demands against him, that then and in that case, the said Lizzie Morris shall on request of my said son, Adon S. Morris, and without unnecessary delay, deed, transfer, and deliver and pay over to my son, Adon S. Morris, all of my estate so entrusted and remaining in her hands, and the same shall be received by my son, Adon S. Morris, and thereafter become his absolute property, to be had, used and controlled by him, and trusteeship of the said Lizzie Morris shall thereupon cease."

The plaintiff is a judgment creditor of Adon S. Morris, and by this action seeks to have the attempted trust adjudged