74 Miss. 37 | Miss. | 1896
delivered the opinion of the court.
The bill is filed by appellant in his character as administrator alone. No just construction can make of it anything else. If, therefore, it were proper to file a bill in that capacity, and, also, at the same time, in his capacity as creditor seeking to set aside the parol trust as fraudulent against creditors, he has not here done so, and we must treat it as a bill by the administrator alone. Nor does it make any difference, in this view, that the bill avers the insolvency of his intestate. Blake v. Blake, 53 Miss., 182, is decisive in this view. We are satisfied, after the most careful consideration, that the fair result of the testi
In the former case the beneficiaries take absolutely; in the other, upon the condition that the revocation does not follow upon the happening of the contingency. If no such revocation follows, their rights are perfect. But, in the latter case, as completely as in the former, the estate or interest vests in prcesenti in the one case, never to be defeated; in the other, subject to defeasance in the manner indicated in the trust.
In our own state, the case of Wall v. Wall, 30 Miss., 91, perfectly establishes this distinction. There the instrument was retained by the grantor in his custody until his death, and he stated that the acknowledgment and delivery of the instrument .and placing it among his (the grantor’s) papers, was intended by him as a delivery of said paper at his death, and it was earnestly contended that it was a testamentary disposition, and void. But the court said: “The determination of the legal character of instruments of this kind depends mainly upon the question whether the maker intended to convey any estate or interest to vest before his death, and upon the execution of the paper, or . whether all interest and
The first cited case is a very striking one, and upholds a trust on far less conclusive evidence than supports the trust at
In Lines v. Lines, supra, the court say: “The power of revocation reserved in the deed, having never been exercised, was precisely as if it had never existed. If the right is not exercised during the lifetime of the donor, and according to the terms in which it is reserved, the validity of the trust remains unaffected, as though there had never been a reserved right of revocation.” Says Bigelow, J., in Stone v. Hackett, supra: ‘ ‘A power of revocation is perfectly consistent with the creation of a valid trust: It does not, in any degree, affect the legal title to the property. That passes to the donee, and remains vested for the purposes of the trust, notwithstanding the existence of the right to revoke it. ’ ’ See, also, 1 Perry, Trust, § 104, bottom of page 103. In Dickerson’s appeal, supra, the grantor was also himself the trustee.
It is insisted that Hamlett’s statement, on cross-examination, that, had Smitha paid him, he would have delivered the policy
Affirmed.