134 Mich. 317 | Mich. | 1903
(after stating the facts). Complainant contends:
(1) That the acts of the deceased constituted him a trustee for the several persons named in the papers executed by him.
(2) That, if not, the deeds and assignments should be held to operate as a testamentary disposition of the property therein described.
Counsel for the defendants discuss three questions, into which they say that the case should be resolved, viz.:
“(1) Are the checks, including the one to Mrs. Freitag, legal transfers of the funds in the bank, and are the payees named therein entitled to draw the money from the bank thereon, or are they void ?
“ (2) Are the transfers of the real estate by way of deed and the transfers of mortgages by way of assignments valid and legal transfers of the property attempted to be
“ (3) Do the deeds and the assignments of mortgages operate as a will ? ”
We can have no doubt that the papers found in the tin box indicate the deceased’s wishes as to the disposition of his property. Had he seen fit during his life to deliver the deeds and assignments to those for whom they were intended, the title would have passed, and they would have become valid gifts. Had he made a formal will directing such disposition, the law would carry out his expressed wishes. But he did neither.
“In speaking of these cases in Richards v. Delbridge, L. R. 18 Eq. Cas. 11, Sir George Jessel, M. R., says:
“ ‘If the decisions of Lord Romilly [in Morgan v. Malleson] and of Vice Chancellor Wood [in Richardson v. Richardson] were right, there never could be a case where an expression of a present gift would not amount to an effectual declaration of trust.’
“And it may be added that there never could be a case where an intended gift, defective for want of delivery, could not, if expressed in writing, be sustained as a declaration of trust. Both of the cases cited are now placed among overruled cases. ”
He continues:
“In Moore v. Moore, 43 L. J. Ch. (N. S.) 623, Hall, V. C., says:
‘“I think it very important, indeed, to keep a clear and definite distinction between these cases of imperfect gift and cases of declarations of trust, and that we should not extend, beyond what the authorities have already established, the doctrine of declarations of trust, so as to supplement and supply what otherwise would be mere imperfect gifts.’
“If the settlement is intended to be effectuated by gift, the court will not give effect to it by construing it as a trust. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust. Milroy v. Lord, 4 De G., F. & J. 264.
“The case of Martin v. Funk [75 N. Y. 134] and kindred cases cannot aid the respondent. In all those cases there was an express declaration of trust. In the one named, the donor delivered the money to the bank, taking back its obligation to herself in the character of trustee for the donee; thus parting with all beneficial interest in the fund, and having the legal title vested in her in the character of trustee only. No interposition on the part of*333 the court was necessary to confer that character upon her; nor was it necessary by construction or otherwise to change or supplement the actual transaction. None of the difficulties encountered in the present case stood in the way of carrying out her intention. It was capable of being executed in the form in which it was expressed.
“The question whether a remainder in a chattel may be created and given by a donor by carving out a life estate for himself and transferring the remainder, without the intervention of a trustee, is learnedly discussed in the appellant’s brief; but the views we have expressed render it unnecessary to pursue that inquiry. We are satisfied that it is impossible to hold that the facts as they appear establish a valid transfer of any interest in the bonds in question to the donee, and that the attempted gift cannot be sustained as a declaration of trust.”
Accordingly, we have held that an expression of an intention to pay another $1,000, in accordance with the expressed wish of the husband of the person expressing such an intention, did not create a trust. Hamilton v. Hall’s Estate, 111 Mich. 291 (69 N. W. 484). It was there said that, “to create a trust, where the donor retains the property, the acts or words relied upon must be uneqivocal,” — citing 27 Am. & Eng. Enc. Law, 56; and that ‘ ‘ this rule applies with peculiar force where it is claimed that the donor constituted himself trustee.” As said there:
“The mere declaration of an intention or purpose to create a trust, which is not carried out, is of no value, and a mere agreement or statement of an intent to make a gift in the future is not sufficient. It must be such that, from the time it is made, the beneficiary has an enforceable equitable interest in the property, contingent upon nothing except the terms imposed by the declaration of the trust itself.”
See, also, Peninsular Sav. Bank v. Wineman, 123 Mich. 257 (81 N. W. 1091).
These cases show that the mere making of the deeds and checks and keeping them in possession are as far from creating a trust as they are from making a completed gift inter vivos. We must, therefore, look at these and other
“Adrian, June 10th, 1897.
‘ ‘ As the Lehman mortgage has been assigned to Charles Herbert Whitney, of Baker City, Oregon, and Lehman paid $200 on it, I make a check for that amount, payable to the order of said C. H. W., to take the place of the $200 indorsed on that mortgage; the check to be sent to him in case of my death at once, by whosoever has charge of my business.
“A. Whitney.”
“This mortgage was assigned to Mary Waller Bohn, but soon after Mr. ICrigger paid it. I therefore make my check payable to her, so in case of my death she can get the money that was paid on the mortgage as principal, viz., $100.
“A. Whitney.”
So far as these two transactions are concerned, the action of the deceased is as consistent with defendants’ theory as complainant’s, and therefore should not be said to declare a trust.
Coming next to the conversations with Clay, decedent’s statements to him and others that he had disposed of his property as he wanted it to go are as consistent with the idea that he had made a will (as he had at one time apparently done), or that he had parceled it out in the way that the record shows, to be given effect after death, if not changed, as that he intended Clay to understand that he was holding it as trustee, which he could easily have said if it was his design. See Young v. Young, 80 N. Y. 435 (36 Am. Rep. 634), for a parallel case on this point.
No. 1. In this deceased says: “In addition to the inclosed deed, I want each one named in it to have the following sums in money, and I have made checks for the amounts, to be delivered to them at my death.” He concludes as follows: ‘ ‘ Mr. Clay, or whosoever has these papers, deliver them to the parties at my death.” Clearly, he did not hold the checks in trust; and why should not this fact, and the language used, characterize his holding of the deed inclosed and withheld from the grantees ? This is certainly no declaration of trust.
No. 4. “ This is to be handed to the officers of the Oak-wood Cemetery Association in case of my death.” This envelope contained two checks. Why were these retained, if he intended to pass title to the money P
■ No. O. The contents of this envelope were to be “sent to Emily Jane Van Buskirk, in lieu of anything in my ivill. ” This indicates that he had made or contemplated a will, and is not consistent with the idea of a trust.
No. 7. Contents “to be delivered to him at the time of my death. ”
No. 8. A similar provision is found here.
No. 15. “At my death, ivhosoever has charge of my matters, hand this to.Mary Bohn.” This was one of the cases where he subsequently made a collection, hereinbefore mentioned, and substituted his check for the security paid.
No. 16. Here he “gives and bequeaths” a bond, “to be handed to her at my death, without further ceremony, by ivhosoever has charge of my estate.” He afterwards added another bond, to be delivered to her in like manner. The words “ give and bequeath ” are suggestive of a future, rather than a present, delivery, and is not appropriate language for a declaration of. trust.
No. 17. “Note of S. N. Dada, to be sent or given to him at my death.” And again: “In case of my death, these notes inclosed are to be given to the parties who made them.”
Counsel rely, in their contention that this property was held in trust, upon the cases of Ellis v. Secor, 31 Mich. 185 (18 Am. Rep. 178), and O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511). The former was a trover case, and the defense was based upon a gift causa mortis. The circumstances in that case show that the donor was in extremis, and did all that she could to express a present intention to make a gift, and this was held sufficient to defeat trover brought by the administrator. The case of O’Neil v. Greenwood was much stronger than the present case, and there was strong evidence of an explicit declaration of trust.- No trust was created in the present case, for there is nothing which indicates an intention that effect should be given to any of the papers before his death.
This discussion has not taken into consideration the question whether a trust in real estate can be created in the way claimed, under our statute of uses and trusts.
The'cases may be divided into three classes:
(1) Those in which the testamentary intent is clearly deducible from the writing.
(2) Those where the instrument is ambiguous, or of doubtful meaning.
(3) Those where there is nothing to indicate a testamentary intent, but, on the contrary, the instrument is in terms plainly a deed.
In the first class of cases there is no difficulty in holding, the document to constitute a will, if properly executed.
We have been unable to find a Michigan case directly in point. Bigley v. Souvey, 45 Mich. 370 (8 N. W. 98), is a case of the first class. In Lautenshlager v. Lautenshlager, 80 Mich. 285 (45 N. W. 147), the writing contained evidence indicating an intent that it was to take effect at death, and, like Ferris v. Neville, 127 Mich. 444 (86 N. W. 960, 54 L. R. A. 464, 89 Am. St. Rep. 480), it belongs to the second, if, indeed, it does not belong to the first, class. The remaining case of Lincoln v. Felt, 132 Mich. 49 (92 N. W. 780), arose over a lost deed. The case went to the jury upon the question whether the decedent’s intent was that the gift should take effect only after death, and that such intent was expressed in the instrument in some appropriate form. The jury found it to be a will, and the order entered in accordance with the verdict was affirmed. Clearly, this was as favorable instruction as the contestants could ask; but it is obvious that the question before us now was not passed upon.
The proposition is to show that certain instruments, which could only become effective by delivery, can be made effective by calling them by another name, and giving them an interpretation which their words do not warrant, through parol evidence tending to show that such was the decedent’s intention. The authorities cited in support of this contention are the Lautenshlager Case, hereinbefore mentioned, which does not support it, and a statement in 29 Am. & Eng. Enc. Law, at page 158, where
In 1 Underhill, Wills, § 37, it is said:
“The courts, in determining whether an, instrument disposing of real estate is a deed or a will, are guided by the following considerations: If the instrument, whatever its form or the mode of its execution, passes a present interest, which vests from the time of its execution, it will he a deed, though the possession and the enjoyment of the estate granted in it do not accrue to the grantee until a future time. On the other hand, if the instrument, though it is in form a deed, does not convey any vested interest, right, or estate until the death of the person executing it, it will be regarded as testamentary and revocable.
“The employment of language appropriate to either instrument is never controlling. Nor is the belief of the maker or an understanding between the parties interested that the instrument is a will or a deed conclusive upon the court (except when made so by statute), though evidence as to the belief of the parties as to its operation and effect is relevant to show their understanding as to the intention in executing it. The court must take into consideration the language of the instrument, and the circumstances surrounding the parties and attendant upon its execution; and if, from all the evidence, it appears to have been the intention of the maker that the instrument shall have a post mortem effect only, it will be held to be a testament, and not a deed. ”
In discussing the admissibility of parol evidence, the author says:
“ In seeking the intention of the maker of an instrument, the court must, in the first instance, consult the language of the writing itself. The fact that the writing which is presented for probate is testamentary in form is some evidence that it is a will. The form of the instrument is not controlling. The court of probate may go outside of the writing to ascertain its character; not to supply an intention which cannot he found in it, but to ascertain*341 with what intention .the execution of the instrument was accompanied.” Id. § 39.
This plainly implies the correct rule that the writing must be susceptible to such a construction without doing violence to its plain terms, and no amount of parol testimony should authorize a court to vary the unmistakable terms of the instrument alleged to be a will. These papers plainly provide in terms for a present transfer of property, and to show that a different intention existed would be to contradict them, and this cannot be done.
We have examined many authorities where the question involved was whether papers in form deeds were testamentary in character, and it is a significant fact that not one has been found which supports the complainant’s contention. In nearly every instance the question is solved from the writing itself, or, if not, the construction adopted is not contradictory to its provisions, which are open to two interpretations. We cite a number of the cases alluded to: Stevenson v. Huddleson, 52 Ky. 299; Armstrong v. Armstrong, 4 Baxt. 357; Miller v. Holt, 68 Mo. 584; Brewer v. Baxter, 41 Ga. 212 (5 Am. Rep. 530); Fulcher v. Royal, 55 Ga. 68; Williams v. Tolbert, 66 Ga. 127; Worley v. Daniel, 90 Ga. 650 (16 S. E. 938); Goff v. Davenport, 96 Ga. 423 (23 S. E. 395); Hall v. Bragg, 28 Ga. 330; Herrington v. Bradford’s Ex’x, Walk. (Miss.) 520; Wall v. Wall, 30 Miss. 91 (64 Am. Dec. 147); Sartor v. Sartor, 39 Miss. 760; Sewell v. Slingluff, 57 Md. 537; Lauck v. Logan, 45 W. Va. 251 (31 S. E. 986); Wren v. Coffey, (Tex. Civ. App.) 26 S. W. 142; Bowler v. Bowler, 176 Ill. 541 (52 N. E. 437); Robinson v. Brewster, 140 Ill. 649 (30 N. E. 683, 33 Am. St. Rep. 265); Burlington University v. Barrett, 22 Iowa, 60; In re Longer’s Estate, 108 Iowa, 34 (78 N. W. 834); President, etc., of Bowdoin College v. Merritt, (C. C.) 75 Fed. 480; Cates v. Cates, 135 Ind. 272 (34 N. E. 957); Stroup v. Stroup, 140 Ind. 179 (39 N. E. 864, 27 L. R. A. 523); Bromley v. Mitchell, 155 Mass. 511 (30 N. E. 83); Walker v. Jones, 23 Ala. 448; Gillham v. Mus-
That parol evidence is not admissible to add to, alter, vary, or contradict a will, see the following: 1 Redf. Wills, p. 426, sub. 8, and cases cited, and page 435, sub. 21, page 496, sub. 2, page 501, sub. 10, page 507, note 21; Hone v. Van Schaick, 3 N. Y. 544; President, etc., of Bowdoin College v. Merritt, (C. C.) 75 Fed. 480, syl. 3; Sewell v. Slingluff, 57 Md. 537; Herrington v. Bradford’s Ex’x, Walk. (Miss.) 520; Miller v. Holt, 68 Mo. 584; Armstrong v. Armstrong, 4 Baxt. 357. For a discussion of this general subject, see 19 Cent. L. J. 46.
We have had difficulty in finding a case in which the exact point before us is raised, but it seems manifest that the same rule that forbids the contradiction of an established will should forbid the contradiction of the same instrument as a means of establishing it as a will, when its terms plainly show it to be a deed conveying a present interest. It is only when the writing is of doubtful import that interpretation by the aid of extrinsic evidence becomes necessary, and in such case interpretation, not contradiction, is permissible.
We are reluctantly driven to the conclusion that we cannot give effect to the deceased’s manifest desire, a desire so well established, and so apparently well grounded
It remains to refer to the rights of Mrs. Freitag. The record indicates that the papers designed for her were delivered to her, and we do not know that any one disputes it. Being delivered, they became gifts inter vivos, and conveyed title to her. As to the check for $500, we feel justified in finding it tobe based upon a valid and sufficient consideration, and therefore collectible against the estate.
' The parties are all before the court, and we think that her rights should be set at rest by this decree. Otherwise we are of the opinion that the property should be decreed to be assets of the estate, subject to administration in accordance with law. Neither party will recover costs, except Mrs. Freitag. She will recover costs from the estate. The disbursements of the complainant should be allowed him from- the estate.
Decreed accordingly.