130 Ind. 247 | Ind. | 1892
The question in this case is, who owns the real estate in controversy ? The question as it is presented by the record is to be solved by determining the meaning and effect of an instrument executed by George W. Ewing, Junior, to George W. Ewing, Senior, on the 31st day of December, 1863. The introductory clause of the instrument reads as follows: “This indenture witnesseth that George W. Ewing, Junior, a devisee of William G. Ewing, deceased, late of Allen county, Indiana, in consideration of six hundred dollars, and other good and sufficient consideration, does by these presents give, grant, bargain and sell to George W. Ewing of Cook county, Illinois, the following described real estate.” This clause is followed by a specific description of a large number of parcels of real
“First The said George W. Ewing, trustee, as aforesaid, shall sell and convey all such part or parts of the real estate hereby conveyed as to him shall seem most advantageous for the interest of the trust hereby created, and the proceeds thereof to invest for the same purposes for which this trust is created, to expend the same in improving such of the property hereby conveyed as the said trustee shall deem most advisable, and for the purpose of creating an income therefrom.
“Second. That of the income and profits arising under this trust, a reasonable sum, such as the said trustee shall deem to be sufficient, shall be expended for the maintenance of the said George W. Ewing, Junior, and the remainder, if any, after paying taxes, insurance and necessary expenses, shall be expended for the benefit of the trust, when and at such times as the trustee shall think best.
“Third. Should the trustee die before his said ward, that Jesse Holliday, of San Francisco, California, or, upon his refusal to act, such person as the court of common pleas of Allen county, Indiana, shall appoint, shall take up and continue this trust.
“Fourth. That upon the death of the said George W. Ewing, Junior, the property hereby placed in trust shall descend to the legal representatives of the said George W. Ewing, Junior, provided, however, that William G. Ewing, Junior, adopted son of William G. Ewing, deceased, shall, under no circumstances whatever, inherit or be entitled to any part or parcel thereof.”
.On the 1st day of March, 1866, the grantee in the deed from which we have copied reconveyed to the grantor the property embraced in the deed, and not disposed of by the trustee under its provisions. In the latter conveyance it is
If there was power in the creator of the trust to revoke it, the appeal must fail; if there was no power of revocation, the appeal must be sustained.
That a trust is created, and created by a deed, there can be no doubt. The instrument is in form a deed, the appropriate words of conveyance are employed, the trust is well described, the beneficiaries designated, and the trustee duly named.
The deed also recites the payment of a consideration by the grantee, which, as the record now presents the case, can not be regarded as a mere nominal one. There is no element of a valid trust absent; every one of the essential requisites of a trust are present. If, therefore, the creator of the trust has power to revoke it, that power must exist because he is the sole beneficiary in the trust, no others having any vested rights. It is, of course, quite clear that the creator of a trust can not revoke it or the trustee destroy it by a reconveyance, if other persons have a vested interest in the trust.
The creator of this trust had an interest in it under the express provision that the property should, so far necessary, be used for his maintenance and support, and this express provision goes far towards ’'showing that this was the only interest left in him, for the express mention of one thing implies the exclusion of all others. We do not affirm that this provision of itself controls the entire instrument, but we do affirm that it exerts an important influence. It is simply the application of a plain principle of logic to assert that where a man conveys lands, reserving to himself support and maintenance out of the estate conveyed, he conveys all other right and interest of which he is possessed. The express provision vesting in the creator of the trust the interest just mentioned must be taken in connection with the provision in the fourth paragraph of the deed, and that pro
In Warnecke v. Lembca, 71 Ill. 91, it was said : “ Legal representative, or personal representative, in the commonly accepted sense, means administrator or executor. But this is not the only definition. It may mean heirs, next of kin or descendants.”
It was said in Grand Gulf, etc., Co. v. Bryan, 8 S. & M. (Miss.) 234: “ In legal parlance, the executor or administrator is most commonly called the legal representative. Still, in regard to things real, the heir is also the legal representative, and so is a devisee, who takes by purchase. Heirs may be the legal representatives, or they may not.” Another court says: “ But it is held that even in cases where the death of the party to be represented is in contemplation, the context of the instrument may change the usual meaning of the words in the given case.” Merchants’ Nat'l Bank v. Abernathy, 32 Mo. App. 211. Other courts declare that the term may mean heirs, assignees or receivers. Davis v. Davis, 26 Cal. 23; Phelps v. Smith, 15 Ill. 572; Barbour v. Nat’l, etc., Bank, 45 Ohio St. 133; Hammond v. Mason & Hamlin Organ Co., 92 U. S. 724. Here the words with which the term is associated show its meaning. The word “ descend ” can not with propriety be construed to mean an executor or administrator, since
The absence of the technical word “ heirs ” does not destroy the effect of the deed, for, under our statute, the courts must determine from the general scope and tenor of the instrument what estate the grantor conveyed. In the deed before us the grantor invests the grantee with power to sell, carves out for himself an interest, — the right to maintenance,— and provides for the continuance of the trust for the benefit of his heirs, or descendants. In carving out the special interest he necessarily provided that the remainder should vest elsewhere than in him. A construction which would make the deed mean that the grantor created a trust simply to secure himself support and maintenance would not be a reasonable one, nor can such a construction be adopted without doing violence to the general tenor of the instrument, and contravening settled rules of law. The dominion over the property which the deed vests in the trustee carries to him the fee. If the fee was carried into the trustee, it cer
The fact that a trust is created without consideration, and
Counsel for the appellee contend that the instrument is testamentary, and hence revocable at the pleasure of its author. If it is solely testamentary, the conclusion deduced is valid, but we can not so regard it. There is nothing in it from beginning to end that indicates by even the remotest intimation that it is a will, or partakes of the nature of a will. In form and substance, in recital and declaration, it is a deed of trust. It professes to be a deed, it expresses a consideration, its words are those of a deed, its declaration of a present trust is clear and emphatic. Not a word or provision contained in it indicates a design to have it operate as a testamentary instrument. It creates an effective trust, no power of control is left in the grantor, no provision is made for accounting to him, provision is made for succession in the trust in the event of the trustee’s death, and provision is made for the beneficiaries who take under the deed. If we should hold this deed tobe a mere testamentary disposition of property, we should go counter to principle and authority, and should lay down a rule that would make all instruments carrying a trust beyond the life of the testator mere ambulatory testamentary instruments. That we can not do. We have examined with care the Pennsylvania cases brought to our attention by counsel, but we can not regard them as of controlling influence. Those cases are Frederick’s Appeal, 52 Pa. St. 338, Rick’s Appeal, 105 Pa. St. 528, and Gingrich’s Appeal, 17 Alt. R. 33. The last named cases rest on the case first named, and that, as it is explained in Rick’s Appeal, supra, is not in point.
In the case last mentioned; in speaking of the case first
It is unnecessary for us to approve or disapprove the reasoning in any of the cases referred to, for it is sufficient to assert that no one of them is relevant to the point here in dispute. In Cox v. Curiwen, 118 Mass. 198, it was simply held that there was nothing in the deed from which it could be inferred that the words “ legal representatives ” were used as meaning heirs. But it is doubtful whether the decision in that case is sound, since the term “ legal representatives,” when used respecting land, means heirs, and not those who can take only the personal estate. As said by the Supreme Court of the United States, in Dunrow v. Walker, 2 Dallas, 205, in speaking of the term “ legal representatives: ” “ For, though the expression might, in the abstract, appear equivocal and ambiguous, it was explained by the subject-matter; and land, ex vi termini, importing real estate, the legal rep- * resentative, must, in legal contemplation, be the heir and not the administrator.” But whatever else may be said of the soundness of the decision in Cox v. Curiwen, supra, it is safe to say that it is not influential here, for the reason that the instrument there construed was radically different from the one with which we are here concerned.
We have examined the case with care, without assuming that counsel have, as in the Minnesota case, made any admissions, and we have reached the same conclusion as that declared by the Supreme Court of Minnesota in Ewing v. Warner, supra. We can not escape the conviction that
We are referred to a class of cases of which Garnsey v. Mundy, 24 N. J. Eq. 243, and Aylsworth v. Whitcomb, 12 R. I. 298, are types, and asked to apply the rule they assert to the case at our bar. But it is evident that, even if the instruments there under consideration were in legal eifect the same as that before us, we could not, under the issues in this case, apply the rule asserted in these cases. Here the parties stand upon the words of the deed; there is no pleading averring directly or indirectly that there was fraud or mistake. We decline, therefore, to enter upon an inquiry as to what the rule would be if the deed should be assailed upon the ground of fraud or mistake. Whether equity will relieve upon the ground of fraud or mistake is not a question presented by the record, and we give no opinion bearing upon it.
Judgment reversed.