Norman v. Burnett

| Miss. | Oct 15, 1852

Mr. Justice Yerger

delivered the opinion of the court.

Boling Clarke, in the year 1809, resident in the State of Virginia, bequeathed to his daughter, Mary Burnett, certain slaves, “ during her natural life, and at her decease to the heirs of her body and their heirs forever.”

Mary Burnett had a son named Richard, who died in the State of Alabama, leaving two children, Eliza and Matilda, both of them infants of tender years, at his decease.

In the year 1830, Mary Burnett, by an agreement in writing, hired two of said slaves to her son, Boling C. Burnett, for the year 1831, “ and to continue in the same way until a division takes place; ” and Boling C. Burnett agreed, in consideration of the hire of said slaves, “ to board, clothe, and send to school, the two children^ the heirs of Richard Burnett, deceased, so long as the said slaves may be undivided.” This agreement is under seal, and was executed on the 11th of November, 1830, and under it the two slaves were delivered to the defendant, who, qualified as guardian of the children, took them into his family, and boarded, clothed, and schooled them, until the date of their respective marriages, which occurred in the years 1842 and 1844. Since then, they have not resided with the defendant, nor has he boarded or clothed them, or paid an equivalent therefor, although he has retained possession of the slaves. The complainants insist, that by his agreement he is bound to board and clothe them until the slaves may be divided, pursuant to the will of Boling Clarke. The defendant contends,, that his obligation ceased on the respective marriages of Eliza and Matilda; and at any rate, if it did not then terminate, it was ended on the 1st of September, 1848, when Mary Burnett released him from the contract made with her in November, 1830.

What are the respective rights and obligations of the complainants and defendant under that agreement ?

Mary Burnett, one of the parties to that agreement, was the grandmother of Eliza and Matilda, whose father had died, leaving them infants of tender age. Her object in making the agreement is obvious. It was to provide for the education and the maintenance of these grandchildren. How long did she intend that this provision should continue, and to what extent did, the defendant undertake in reference to it. The agreement settles these questions, and fixes the period of its continuance “ till a division of the slaves should take place.” They were hired to defendant for the year 1831, and “ were to continue in the same way until a division takes place; ” and by the agreement the defendant, in consideration of the hire of the slaves, was bound to clothe, board, and educate the children, “ so long as the slaves may be undivided.” The division here referred to was a division of the slaves, which was to take place among the children of Mary Burnett after her death, according to the will of Boling Clarke.

No form of words is necessary to create a trust; but, looking to the acts and intentions of the parties, if it appear that it was their intention to create one, it is the duty of the court to declare and enforce it. In the present case, if we look to the situation of the parties, we cannot doubt that Mary Burnett, the grandmother, intended to make some provision for the maintenance and education of the infant children of her deceased son; nor can we doubt, that it was her object that this provision should continue until they would become entitled to th'éir father’s share of the property, under the will of Boling Clarke. The consideration of this trust was a good one, and the undertaking of the defendant to execute it and carry it into effect was founded on a valuable consideration, the possession and use of the slaves. A fair construction of the agreement between defendant and his mother, made in November, 1830, in equity constitutes him a trustee for a valuable consideration, bound to carry out the objects of the maker of the trust, and, as the period when the trust was to terminate has not yet arrived, we think a court of equity should enforce it. The complainants, Eliza and Matilda, the objects of the trust and the beneficiaries under it, are still in existence. The portion of the trust requiring them .to be “schooled” has ceased, but their necessity of maintenance and clothing still continues, and we think the defendant is bound to provide for it.

We do not think the agreement made in September, 1848, between defendant and his mother, Mary Burnett, released him from .this trust. The trust to educate and maintain the children having been created by her upon a good, although a voluntary, consideration, vested rights in the beneficiaries, which she, as the maker of the trust, had no power to abrogate or impair, by any act or dealing with the trustee. 2 Story, Eq. § 1036-1046; 4 Johns. Ch. R. 136; Lewin on Trusts, 110, et seq.

The boarding and clothing which the defendant is bound to furnish these parties should be proportioned to the value of the hire of slaves, and this maintenance must continue until the division of the property referred to in the agreement made in November, 1830, takes place.

The decree of the vice-chancellor must be reversed, and the cause remanded for further proceedings.