15 F. 35 | N.D. Ill. | 1883
The original bill in this case is filed by complainant to obtain a judicial construction of the trusts under which complainant claims to hold certain real and personal estate, conveyed to
At about the same time, perhaps simultaneously with the execution of this deed, but probably some months later, and on or about the eighteenth of April, 1879, Keegan executed and delivered to Bishop Ireland a written paper in the following words:
“To the Bight Reverend John Ireland, Coadjutor Bishop of St. Paul, Minnesota:
' “Right Reverend Sir—The real and personal property which I have heretofore and may hereafter convey to you are for the benefit of my infant child, .Mary Gertrude Keegan, born November 15, A. D. 1875, to be delivered to her, with its accrued profits, rents, and interest, when she shall become of age. Should, she die before coming of age, and leave no issue, then to your*37 self, for the purpose of providing an agricultural home for poor boys, in connection with an industrial school.
« Witness my hand and seal this fourth day of February, A. D. 1879.
[Signed] “Michael Keegan. [Seal.]”
And underneath this instrument is written an acceptance by Bishop Ireland, of the following tenor:
“ I hereby accept the above trusts for the purposes above specified.
[Signed' “John Ireland.”
Upon tho back of this instrument is written the following letter from Keegan to Bishop Ireland:
“ Right Reverend John Ireland, 1). 1)., Coadjutor Bishop of St. Paul, Minnesota :
“Eight Reverend Sir—To wliat is written on the other I add further that if my child should refuse to comply with your orders and wishes, and go from under your control, then while she so remains she is not to receive a dollar from you, either towards her support or education; but in case of her sickness do as your heart suggests. If she should become a religious, which God grant, before coming of ago, place §10,000 at her disposal when fully professed, and the balance when she is 21 years old. Should she marry before becoming of age, she can have §5,000 on her marriage, to be placed at interest, and have the yearly interest of it until she is of age; the yearly interest or rent is to be put in staple coupon stocks, andas it falls due. But 10 per cent, of the interest or rent is to be regularly deducted from the income and devoted to such charities as your lordship thinks proper; hut one-third of this 10 per cent, is to be given for masses for my soul, in union with the souls in purgatory, and tho masses are to be said by priests in poor missions, or who need a little help. Regarding my wife, I will hereafter make a separate statement, which must be satisfactory to your approval. But if I should die suddenly, then let her have a decent support while she remains unmarried. These conditions are to apply to my property in your hands at the time and after my death.
“I remain, my lord, most respectfully, your most obedient servant,
“Michael E. Keegan.”
The proof shows that the deed to Bishop Ireland, and the declaration of the trusts upon which the deed was made and the personal property delivered to him, were both prepared at the same time by the same attorney, and after consultation between Keegan and his attorney as to the best mode of creating the trust, so as to probably cause the least trouble to the bishop, and, if possible, to avoid litigation with any prospect of success; and whether the declaration or statement of the trusts was signed and delivered simultaneously with the deed, or at a subsequent date, in my estimation is of but littlo consequence. It may be, as I have already suggested, that the
The child, Mary Gertrude Keegan, was born November 15, 1875, and on the seventh day of February, 1878, when the child was but little more than four months old, a deed in fee-simple was made by Keegan and his wife, conveying to this child two lots then owned by Keegan, described as No. 425 May street and 457 West Twelfth street, in this city, and being part of the property conveyed to Bishop Ireland by the deed of February 4, 1879. At the time this deed was executed and acknowledged Keegan remarked to the notary, pointing to the child, who was held in her mother’s arms, “She is-early in acquiring property,v and he handed the deed towards the child, but did
The questions raised upon these leading facts are these:
(1) Geraghty, tlie cross-complainant, insists that the deed from Keegan and wife to the infant child, made in February, 1876, is an operative conveyance, and vested the fee-simple to the lands therein, described in the child, and that he, as the solo heir at law of the child, is entitled to hold the property, and to have the conveyance from Keegan to Bishop Ireland set aside as a cloud upon his title to the property covered by the deed to the child. (2) That the conveyance of the real and personal property to Bishop Ireland was obtained by reason of the undue influence of Bishop Ireland upon the mind of Keegan. (3) That the object of the trust in Bishop Ireland is left so obscure, uncertain, and ill-defined as to render such trust void and inoperative, and make it impossible to uphold or execute it as a trust to a charitable use. (4) It is insisted that the trust was never so far completed as to make it a valid trust in Bishop Ireland for the purposes designated in the declaration of trust of February 4, 1879.
As to the deed from Keegan and wife to the child, the only question is whether it can he treated as ever having become an operative deed. It never was delivered to the grantee, and, considering the immatun age of the grantee, it was, perhaps, impossible to have made such a delivery, and unnecessary that it should have been so made; but there is no doubt that the grantor in such a deed should do some act manifesting an intention to deliver the deed and make it effective. The testimony does not disclose the motives which led these parents, so soon after the birth of this child, to unite in a conveyance of this character. We only know from the proof that such a paper was signed and acknowledged by them. It was never recorded or published, in any way, by either of the parents, or ever after, alluded to in such way as to show that they, or either of them, considered it a consummated transaction. Whether the deed was made at the instance or request of the mother, and to please her, or whether it was a part of some inchoate plan or purpose of one or both of these parents, which was subsequently abandoned, we do not know. We do know this, however, that Keegan was a man of affairs, well acquainted with the forms of procedure requisite to make a valid conveyance of real estate; that he prepared most of his own deeds and business papers; and this fact, coupled with his retention of the deed without recording it, is quite conclusive evidence, to my mind, that he never intended it to become operative, especially when you supplement this fact with the manner in which he subsequently dealt with this property, and the disposition which he subsequently made of all his prop
As to the allegation of undue influence, I can find no evidence in the record that Bishop Ireland ever exerted, or attempted to exert, ■ any influence to induce Mr. Keegan to convey his property to him, or make him a trustee. On the contrary, whatever evidence there is bearing on that question tends to show that Bishop Ireland accepted this trust reluctantly, and only out of consideration for his long friendship towards Mr. Keegan, and at Mr. Keegan’s earnest and pressing instance and request. That Keegan was an earnest and zealous Catholic, and that his relations to Bishop Ireland for many years had been especially friendly and confidential, are facts amply shown from the proofs in the case. But it nowhere appears that the bishop advised this disposition of Keegan’s property, or sought the office of trustee.
As to the objection to the validity of the trust upon the ground that it is not so sufficiently defined that it can be executed with certainty, it seems to me very clear that Keegan’s first and leading purpose was to make provision for his child. He had, by his industry and close economy, accumulated quite an estate for a man in his position of life, valued, as he deemed it, about the time this transaction took place, at from $75,000 to $80,000. He had unfortunate differences with his wife. He felt that his health was rapidly declining, and was anxious to make some sure disposition of the propertybywhich.it could be preserved for the benefit of his child; this seems to have been his first and controlling thought. Running throughout the whole web of this record is the constant expression of his anxiety, to secure his property for the benefit of this child. At times, he seems to have made some provision for his wife; but the papers making such provision were destroyed, and whatever arrangement of that kind was contemplated was never completed, so that finally, when, after consultation with his attorney, he came to a definite conclusion, it was to convey all his real and personal property to the bishop, in trust for the child; and the document 'which, undoubtedly, was intended to define that trust clearly, as the guide for the trustee in the subsequent disposition of the estate, was the paper prepared simultaneously with the deed by the attorney, and dated February 4, 1879. The subsequent letter of' April 18th, indorsed upon the back of this
But it is urged that this trust never became fully created, because the deed to Bishop Ireland was not recorded during Keegan’s life, and very shortly after the securities were forwarded to the bishop, lie returned a portion of them to Keegan, who collected and reinvested and expended a portion of them in the exercise of his own judgment, and to some extent in accordance with the arrangements he had previously made; and that, shortly after the death of Mrs. Keegan, Bishop Ireland returned to Keegan, at his request, at Chicago, the box of securities, and that Keegan retained possession of those securities from that time until his death, thereby depriving the transaction of the character of a donation inter vivos, or a completed gift during tho life
The proof discloses the fact, that for some real or imaginary reason, Keegan, in the latter part of the year 1878, or forepart of the year 1879, was fearful that his wife and some of her friends would take measures to deprive him of the control of his property, —to bring a charge of insanity, or incompetency to manage his property, before some of the courts in Chicago, so as to secure the appointment of a conservator, or put his property in the hands of some other person to manage. He therefore, somewhat hurriedly, in view of such a contingency, sent the personal estate to the bishop at St. Paul, perhaps earlier than he intended; but when any of the papers were returned to him he assumed always to be acting,’ in whatever he did. about it, in the interest and as the agent of Bishop Ireland; stated frankly to his acquaintances the property belonged to Bishop Ireland, and did not claim to be the absolute owner of it. It is also true that Bishop Ireland sometimes, in his communications to Keegan in reference to investments to be made from the estate, treated Keegan as having some control or management of the property, or as being entitled to be consulted, or to have the management of it; but this does not militate against the relation of trust which the bishop had assumed, nor, it seems to me, can it be held to defeat the bishop’s title.
It seems, therefore, very clear to me from the proof that whatever was done by Keegan, after the delivery of the securities to Bishop Ireland, was done in consummation and furtherance of the trust which he had created, instead of being intended to operate against or defeat it; and that nothing was done indicating an intention on the part of the donor or his trustee to cancel or abandon the trust. The child was living when Keegan died, and I have no doubt he remained entirely satisfied with the disposition he had made of his estate.
The will he made during his nearly-last rational moments does not, to my mind, seem intended to cancel or set aside this trust. The main purpose of the will appears to lie to have been to appoint the bishop the guardian of the child. Making her his sole devisee would only operate to vest in her any property he owned which he had not conveyed to the bishop, but it could not divest the bishop of any title he had already obtained, and in regard to which the trust had been declared in writing.
I therefore come to the conclusion that the estate in the hands and control of the administrator, appointed by the probate court of Cook county, should be delivered to Bishop Ireland; that the cross-bill of Peter Geraghty should be dismissed for want of equity; and that Bishop Ireland should be left, so far as this court is concerned, to execute the trusts created by the conveyance and directions to him of the donor. As it is manifest from the entire tenor of the transaction that it was intended that Bishop Ireland should expend these trust funds in the diocese of Minnesota, it may hereafter devolve upon the courts of that state to see to it that this trust is faithfully administered according to the terms upon which the trust was created and accepted.
To constitute delivery of a deed the grantor must, as a rule, part with the possession of it, or, at least, with the right to retain possession. Younge v. Guilbeau, supra; Johnson v. Farley, supra. Even the registry of the deed by the grantor, though entitled to great consideration upon this point, and sufficient, perhaps, in the absence of opposing evidence, to justify a presumption of delivery, is not conclusive, and the presumption may be repelled by the attendant and subsequent circumstances. Younge v. Guilbeau, supra; Mitchell v. Ryan, 3 Ohio St. 377. See, also, Masterlon v. Cheek, 23 Ill. 72.
Although, as a rule, the grantor parts with the possession of the deed, a formal delivery to the grantee in person is not necessary. A delivery may ho by acts without words, or by words without acts, or by both. Anything which clearly manifests the intention of the grantor, and the person to whom it is delivered, that the deed shall presently become operative and effectual; that the grantor loses all control over it; and that by it the grantee is to become possessed of the estate,—constitutes a sufficient delivery. The very essence of the delivery is the intention of the party, (Bryan v. Wash, 2 Gilm. 557, 565; Walker v. Walker, 42 Ill. 311; Masterton v. Cheek, 23 Ill. 72; Duer v. James, 42 Md. 492; Ruckman v. Ruckman, 32 N. J. Eq. 259; Nichol v. Davidson Co. 3 Tenn. Ch. 547; Thatcher v. St. Andrew’s Church, 37 Mich. 264; Gregory v. Walker, 38 Ala. 26; Dearmond v. Dearmond, 10 Ind. 191; Somers v. Pumphrey, 24 Ind. 231, Burkolder v. Casad, 47 Ind. 418; Rogers v. Cary, 47 Mo. 235; Shep. Touch. 57, 58;) and the intent of either or both the parties may he implied from subsequent admissions, conduct, or circumstances; Nichol v. Davidson Co., supra. Where the circumstances show, unmistakably, that one party intended tc divest himself of title, and to invest the other with it, delivery will be complete, though the instrument still remains in the hands of the grantor. Ruckman v. Ruckman, supra. Thus, where a father voluntarily made a deed to his soil and did not deliver it, but their subsequent conduct was such as to show that both of them considered the deed as having been effectually executed for the purpose of passing title, it was held that no actual delivery was necessary Walker v. Walker, supra.
The law presumes much more in favor of the delivery of deeds in eases of voluntary settlements, especially when made to infants, than it does in ordinary cases of bargain and sale. The same degree of formality is never required, on account of the great degree of confidence which the parties are presumed
An attentive consideration of the above cases will, it is believed, lead the reader to the conclusion that the decision of the learned judge, in the principal case upon the point in question, is entirely correct. Actual delivery being useless, and the conveyance clearly beneficial to the infant, in the absence of evidence showing a contrary intention on the part of the grantor the court would have been warranted in finding that the title passed by the deed. But tne circumstances, as it seems to the writer, show that such was not the intention of the grantor, which, according to the authorities above cited, constitutes the controlling element in the case. Indeed, the retention of control of the deed, and his subsequent dealings with the( same property, seem clearly inconsistent with an intention on his part that the conveyance in question should operate.to pass the title. Upon the whole, the whole case seems well decided. Marshall D. Ewell.
Chicago, February 15, 1883.