After the filing of our rescript of March 21, 1894, counsel for the respondents, deeming that the court had misapprehended their position, asked leave to be further heard on the question raised by their plea of the statute of limitations, and leave having been granted, filed on or about April 7, 1894, an additional brief.
The argument of the respondents proceeds on the theory that the effect of the devise in the third clause of the will of Charlotte D. Dodge was merely to impose a personal duty on her husband, Christopher G. Dodge, as the devisee of the two thirds of the real estate devised to him; and that nineteen years having elapsed since the death of the testatrix, and the intervenor having taken no steps to enforce the claim against his father, it is now too late for him to take advantage of the charge. They contend that a devise "subject to a charge" does not create an express trust; that the provision in the charge is indefinite and indeterminate, and, hence, that until its amount or extent has been determined, it is a mere executory demand; that as a mere executory demand would be barred by the statute of limitations at law, equity following the analogy of the law will not enforce it.
The respondents' contention is based on a misconception of the effect of the devise which not only created a personal duty to be performed by the devisee, his heirs and assigns, *Page 8 but secured the performance of that duty by a charge on the two thirds of the real estate devised. That duty was to continue until such time as the intervenor, who is, it is alleged, of feeble mind, should have engaged in business or learned a trade from which he should derive sufficient income for his comfortable support according to his station in life. The duty being a continuing duty, we think that the charge should be construed as coextensive with the duty and, therefore, as a continuing charge so long as the duty continues. The father of the intervenor performed the duty while he lived and there was, therefore, no occasion for the intervenor to resort to the charge. Since the death of the father on March 28, 1888, the duty has been unperformed. Consequently the intervenor, having obtained leave of the court came into the suit on December 1, 1893, less than six years after the breach of the duty began, and seeks now to enforce the charge for the period which has elapsed since his father's death.
We see no reason for changing the conclusion announced in our former rescript that the plea of the statute of limitation should be overruled.
The cause was then heard on bill, answers and proofs.
March 7, 1895.