37 Ill. 387 | Ill. | 1865
Lead Opinion
delivered the opinion of the court:
It is agreed that the facts in this case are the same as those appearing in the case Nicoll v. Ogden, 29 Ill., 323, except so far as they may be rendered different by the deposition of Btishnell, which has been taken since that case was decided. After carefully reviewing the grounds of that , decision, we see no reason to change the views there expressed. We will now proceed to an examination of Bushnell’s evidence for the purpose of ascertaining whether it should lead us to a different result in this case. In that case we held that by the deed of April 1st, 1842, from Butler to Mcoll and Bushnell, to be held in trust for the beneficiaries, this real estate, and which had been previously regarded as personalty by the parties in interest, was changed from its artificial character of personal, to that of its ordinary condition of real estate, with all of its incidents. That by that conveyance Mcoll and Bushnell took the legal title in fee, simply as trustees, with no specific trusts declared, and that such a trust vested in the beneficiaries an equitable estate of inheritance for their several portions. That under this deed, the law implied the duty of the trustees to convey, on demand, to each cestui que trust his share, and that on a refusal a court of equity would have executed the trust by compelling a conveyance.
It was also held, that the beneficiaries were hound by that conveyance, and manifested their assent to it, as is shown by their deed of the 25th of April, which recites that the deed of the 1st of April was made by Butler to Mcoll and Bushnell at their request. It was also held that the cestuis que trust, by having that deed executed, manifested the intention to, and did thereby, change the entire fund into an equitable estate of inheritance in these lands. Bor could they by any subsequent declaration of trust, in any degree affect the rights of third persons, which may have attached after that conveyance was made, and before the specific trusts were declared. And under the law, married women became entitled to dower, in land of which the husband became seized of such an estate during coverture, and could not be deprived of that right except in the mode prescribed by the statute. And that Mrs. Bicoll thereby became vested with the inchoate right to dower in the premises, and that her right was not barred by the declaration of trusts by the deeds of the 12th and 25th of April.
We also held that the deed of the trustees of the date of the 12th of April, specifying the trust upon which they held the property, neither enlarged nor limited their powers or duties. That they, after its execution, held the property precisely as they did under the deed of April 1st.
Bushnell, however, testifies that he was unwilling to accept the trust, and required the beneficiaries to make a declaration of such specific trusts as he was willing to undertake to execute. But he also says that the deed of the 1st and that of the 12th of April, were in his possession the greater portion of the time after they were executed until that of the 25th was made. This has very much the appearance of a delivery and acceptance of the deed. And we do not see how he could have had any objections to accept the trust under the deed of the 1st of April, as it could in no event impose any labor, expense or liability, except to convey when required to each of the beneficiaries. Tinder it, we can see no reason for the discussion in reference to the trust created by the deed of April 1st. Hor does he speak of any proposition ever having been made that Butler should make a further or different conveyance.
But when the question of sales came to be discussed, then we can readily see, that a person residing so far from the property of so large a value would be inclined to object to making sales in person. And when it is perfectly obvious that the care, attention and labor of the trust would be large, we can see that he would hesitate to undertake it in person. Hence the declaration of the trust of the 25th of April authorized them to perform the trust through attorneys in fact. And it is in reference to this deed that it would seem the discussion would most probably arise, and under which he would object to act, unless it contained some provision which would exonerate him from bestowing his personal attention to the execution of the trust.
He has failed to inform us why he and Hicoll executed the deed of the 12th of April, if they were unwilling to accept the simple trust created by the deed of the 1st. By it they assent to the trust, but are careful to assume no other or greater liabilities than the law imposes. This deed was an unequivocal acceptance of the trust if it was delivered.
lie, however, says tha't he refused to act under the deeds of the 1st and 12th, until that of the 25th was executed. How he says that he was applied to about the 1st of April, to become a joint grantee with Hicoll, for the lands described in the deed from Butler and wife, on the terms then proposed, which was a trust. He also says that he thinks the trust is more fully set out in other papers. This latter declaration, it will be observed, is only an opinion, and he does not say that those terms or conditions were then spoken of, or had been agreed upon. And as he says that it was a matter of discussion, the probabilities are that all that was then agreed upon was, that the property was to be conveyed to them, to hold upon such trusts as might be declared by subsequent agreement. The present opinion of a witness in reference to a matter which had transpired more than twenty years previously must necessarily be indefinite and very indistinct. It must require a memory such as but few men are endowed with, which can, after such a lapse of time, refer to conversations ‘ and agreements with any degree of precision. And when the entire character of a written instrument is to be changed, and apparent rights of importance are to be cut" off, by oral evidence of so ancient a transaction, we should at least act with hesitation, however honest, truthful and respectable the witness. That Mr. Bushnell has given his evidence as he understands and remembers it, with candor and frankness we do not doubt, but we must suppose that his recollection is imperfect. He in his deposition says it is, when interrogated as to other particulars of the transaction.
He says that an effective delivery was not made of the deeds until the 25th of April. As tó the deeds of the 12th and 25th, it is natural to suppose that such was the fact; but he says the deed from Butler to himself and Hicoll had been in their possession from the time it was executed. He says that he means by a delivery, an exchange of the papers after the minds of the parties have met—a consummation of the transaction. What papers would probably be exchanged ? Clearly the deeds of the 12th and the 25th. The grantees already had possession of the deed of the 1st of April. And there is no intimation that it was delivered as an escrow, if such a delivery could be made to a grantee. Butler had executed it at the request of the cestwis que trust, and he must have intended it as a delivery when he placed it in the custody of the grantees, and the beneficiaries must have so regarded it when they had it executed.
We do not see that Hicoll, one of the grantees, ever objected to the trust imposed, or required any conditions before he entered upon the execution of the trust. And a failure of a co-trustee to act could not defeat the conveyance. In such a case, a court of equity would have entertained jurisdiction for the purpose of preserving the trust. Bushnell’s refusal could not have defeated the conveyance and have frustrated the intention of the cestuis que trust.
Again, if it had been the intention of the parties when the deed of the 1st of April was executed to preserve the character of the property as personalty, by continuing it as a trading fund, it is strange that we find no recital of the fact either in the deed of the 12th or 25th. On the contrary we find in both of those deeds a declaration that partition shall be made, if practicable, within six months from that date. We could scarcely expect to find a stronger expression indicating an intention by the beneficiaries to hold it as real and not as personal estate. That declaration would seem almost conclusive, that it was the intention of the parties not to convert the character of the property from real estate which it had acquired by the deed of the 1st of April, again into personalty. It was also provided that the partition should be made amicably by the cestuis que trust or by law. How, previous to the deed of the 1st of April, neither of the cestuis que trust could, by a bill in chancery, have compelled a partition, because, by their previous agreement, these lands were held alone for sale, and all that could have been done was to obtain a decree requiring the execution of the trust by a sale of the lands. But under these deeds and declaration of trust the character of the property was entirely changed by the agreement of the parties, and either one of the cestuis que trust could, at any time after these instruments were made, have compelled a partition in equity.
The remainder of the real estate still belonged to them in equity, and upon their death it would have descended to their heirs, who could, in like manner, have compelled a partition.
The majority of the court are, for these reasons, of the opinion that the case of Nicoll v. Ogden is conclusive of this ease, and that the decree of the court below must be reversed and the cause remanded.
Decree reversed.
Dissenting Opinion
dissenting:
At the time when Butler executed to Bieoll and Bushnell the trust deed of April 1st, 1842, it is admitted that the property in question was was held as personalty. Butler could not change its character except with the consent of the cestuis que trust. The deed to Bicoll and Bushnell, as trustees, gave them the legal title, but did not reconvert the property into realty, unless that deed was made with the consent of the beneficial owners. In the instrument of April 25, 1842, they declare the trusts, and recite that the deed was executed at their request. In the case of Nicoll v. Ogden, 29 Ill., 389, the court held that the deed created a naked trust, vesting the legal title in the grantees to hold simply for the use of the cestuis que trust, and subject to a demand by them at any time for a conveyance, and thus creating in them an equitable estate of inheritance subject to dower. It was further held that the recital of consent on their part to this conveyance, in the instrument of April 25, 1842, is to be considered as evidence of consent to the making of the deed in the precise form in which it was drawn, that is, to the creation of a naked trust by which the title was merely to be held for the benefit of the cestuis que trust, and with no other duty than to convey it in accordance with their directions. Since the hearing of that case, the deposition of the trustee, Bushnell, has been taken, and in my opinion it is shown by his evidence, viewed in connection with the character of the enterprise, from its inception, the reasons for the conveyance to Bushnell and K"icoll growing out of the pecuniary embarrasments of Butler, and the declaration of trusts embodied in the instruments of April 12th and 25th, that there was no intention on their part to change the character of the property, and that the recital of their consent to the deed is to be construed as a consent that Butler should convey the legal title to be held by the new trustees, subject to the trusts already existing, and to such as might be specified in connection with the change of title, and as a part of the same transaction. He testifies that the deed “first came under his observation about the 9th of April,” and he, with his co-trustee, then executed the declaration of trust, bearing date the 12th of the same month. He does not say specifically whether this declaration was executed on the suggestion of the trustees or of the cestuis que trust, but he says it was all one transaction, and I can entertain ho doubt that, as the deed left the trusts wholly undefined, the instrument of the 12th defining them was intended to be contemporaneous with the deed and, as between the parties and privies, is to be considered as a part of the deed. But the trustees, for their own protection, desired a still further specification of the trusts, and at their suggestion the cestuis que trust executed the instrument of the 25th of April, differing in no substantial particular, as to the character of the trusts, from the instrument of the 12th, but important to the trustees, because executed by the cestuis que trust, while the instrument of the 12th was executed only by the trustees. Bushnell swears that he refused to accept and act under the trust until this last instrument was executed, and that the three instruments were all one transaction.
I think, then, in brief, that the deed from Butler to Bushnell and Hicoll could not change the character of the property from personalty back to realty without the consent of the beneficiaries; that their consent was given merely to the making of a deed, leaving the trusts undefined, with the exception that the existing trusts should remain in force unless modified by instruments to to be executed in connection with the deed, and as a part of it; that these instruments are to be regarded as a part of the deed, and that they leave the property stamped with the same character which it had before. The property having once acquired the character of personalty, it could only be reconverted into realty by acts on the part of the owners manifesting a clear intent to that end. Viewing these instruments in connection with the evidence of Bushnell, I can find in them no evidence of such intent taking immediate effect. The agreement that the property shall be divided, if practicable, within six months, I regard as an agreement that it shall be so converted into realty within that time by means of a partition, if practicable, but not as re-converting it, eo instantl. In my opinion, the decree of the court below should be affirmed.