315 Mass. 274 | Mass. | 1943
The administratrix of the estate of Hagop Aronian, having a license from the Probate Court to sell for the payment of debts certain real estate in Waltham which she claims belonged to her intestate at the time of his death,
The determinative facts found by the trial judge are these: The deceased had acquired the property because there was a drug store upon it. He planned to educate his sons as druggists and intended that they should take over and operate the store. He caused the property to be purchased in the name of the defendant Asadoorian, who held the title as a “straw” upon a dry trust for the deceased. In pursuance of his original purpose, the deceased, about three months before his death, which occurred on November 25, 1940, caused Asadoorian to execute and deliver to the deceased a deed of the premises, in the habendum of which it was expressly set forth that the deceased was to hold the premises as trustee for the benefit of his two sons; that the trust should terminate upon the death of the trustee; and that upon such termination the title should vest in the two sons. The deceased accepted the deed and the trust, but the deed was not recorded until after his death. We assume, as the parties have assumed, that this deed is to be construed as conveying the legal title in fee to Aronian and not merely a life estate with remainder to the sons. See G. L. (Ter. Ed.) c. 183, § 13.
The plaintiff contends that no complete and valid trust was created for the benefit of the sons. We see no sound basis for this contention. The deceased was the equitable owner of the property. He could have demanded an outright conveyance from Asadoorian to himself and could then have conveyed to another in trust for the sons or could have declared himself to be trustee for their benefit. Instead, he preferred to have Asadoorian convey the legal title to him upon an express trust for the benefit of his sons. This was an equally effective method. It is difficult to see how an express trust in real estate can be any more effectually created than by a deed with an habendum in trust setting forth the terms of the trust in detail, delivered to and accepted by the grantee.
The plaintiff argues that the trust was not valid because it does not appear that the two sons as cestuis que trust had notice of the trust during the lifetime of the settlor. If we assume that they had no notice, we are nevertheless of opinion that the trust is valid. There exists in this Commonwealth a peculiar rule of law to the effect that, in some circumstances, a bare voluntary declaration of trust by the owner of property who retains the legal title and actual power of control is not effectual unless communicated to the beneficiary. In the earliest extended discussion of the subject and in some later cases failure to notify the beneficiary seems to have been regarded as hardly more than one circumstance of weight tending to indicate that the alleged settlor did not intend to complete the alleged trust as a definite finality. These were cases where the acts of the alleged settlor were of a more or less equivocal character, and where the lack of notice would have substantial probative force upon the question of intent. Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228. Cummings v. Bramhall, 120 Mass. 552, 564. Jewett v. Shattuck, 124 Mass. 590. Sherman v. New Bedford Five Cents Savings Bank, 138 Mass. 581. Alger v. North End Savings Bank, 146 Mass. 418. Thus in Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, at pages 163-164, the court said, “Notice to the donee is indeed not necessary when other acts or declarations of the donor are sufficient and complete in themselves; but, where the transaction is capable of two interpretations and the settlement is merely voluntary, it is plain that notice
In the case at bar Asadoorian, who held the legal title, conveyed it by formal and adequate deed to the deceased upon an express trust. But even if the deceased, who held absolute equitable title, and not Asadoorian be regarded as the settlor, the execution and delivery of the formal instrument of conveyance transferring the legal title rendered notice to the beneficiaries unnecessary to the completion of the trust. Notice might likewise have been unnecessary if the deceased had held the legal title in his own name and had merely made a formal written declaration of trust; but we need not decide that point. Nor need we decide whether in view of the statute of frauds, G. L. (Ter. Ed.) c. 203, § 1, there is ever sufficient reason for applying the rule requiring notice to the cestui to trusts of r.eal estate.
The plaintiff further argues that an unsuccessful attempt to make a gift by transfer cannot be made effectual by calling it a declaration of trust, citing the well known case of Milroy v. Lord, 4 De G., F. & J. 264. Loring v. Hildreth, 170 Mass. 328, 331. Silbert v. Equitable Life Assurance Society, 314 Mass. 406, 408. But this principle has no application to the case. The deed was valid for its intended purpose.
No complaint is made of the form of the decree, which merely declared that the title passed to the sons by virtue of the trust deed. We think, however, that a clause should be added formally dismissing the bill.
Decree as modified affirmed with costs.