106 Mich. 572 | Mich. | 1895
Lewis Willey, grandfather of Lavalette O’Neil and the father of Galista Warner, died suddenly, May 11,1893, aged 77 years. He had, in 1891, been troubled with la grippe. In the early part of January, 1S92, he had called in a physician, and in the course of that illness he was informed that he was liable to sudden death. Trior to January 29, 1892, he had conveyed to his children all of his real estate. He had three grandchildren, — Vernon and Fay Willey, sons of Lewis Bradley Willey, and Lavalette O’Neil. He had conveyed a farm, estimated to be worth in the neighborhood of $4,000, to Vernon and Fay Willey. Webber & Buel were his bankers. On the date last named, Willey called in Mr. Sherwood (who had at other times prepared papers for him) and Mr. Buel, and in their presence opened a tin box which had been kept in the vault at the bank, and exhibited several certificates of deposit issued by Webber & Buel, amounting in the aggregate to over $2,500, and a number of promissory notes aggregating upwards of $2,500. He then stated that he had made provision for his sons and daughters, except one daughter, Galista Warner, and had provided for the Willey grandsons, but had made no provision for Lavalette O’Neil, and desired to equalize the distribution of his property by giving to Calista Warner certificates of deposit, amounting to $1,800, and to Lavalette O’Neil notes amounting to $2,200. He then selected out $1,800 in certificates of deposit, and $2,200 in notes. A bill of sale was prepared by Sherwood, transferring -to Lavalette O’Neil the notes so
Willey afterwards deposited the tin box in the bank vault. It contained other notes, certificates, and papers. Willey retained the key, and from time to time, until his death, took papers from it, and returned the same, or others, to it. He collected the interest on the notes as the same became due. At the time of his death there had been no material changes as to the notes, but, although the amount in certificates of deposit was $2,900, all were dated after January 29,1892. Willey had talked freely, up to the time of his death, of this transaction, to Sherwood, to Mr. Warner (the husband of Calista Warner), and to others. He had taken Warner to the bank, explained to him the transaction, exhibited to him the papers, and Warner had listed the papers. On that occasion he said to Warner, referring to the notes trans-' ferred to Lavalette O’Neil: “I want you to know that these are Lavalette’s. I only hold them in trust for him.” On another occasion, Willey, on learning that a piece of land adjoining Warner’s farm was for sale, went to the bank, and procured a draft on Detroit for $1,800, and
In the list of notes set aside to O’Neil were two notes made by Lewis Bradley Willey, — one of $725, and one of $350, — 'held by the father. After the father’s death, Lewis Bradley Willey took from the dead man’s pockets his watch, his keys, and a bundle of papers. After tin* funeral the heirs were called in. Mr. Ruel produced the tin box from the bank. Lewis Bradley Willey produced the key. The box was opened, but the bills of sale, certificates of deposit, and notes in question were missing. Lewis Bradley Willey then produced the certificates of
Lewis Bradley Willey was interested in the destruction of the note, the bills of sale, 'and the memorandum book; and, from the statements made by him respecting the matter, it is evident that these missing papers were destroyed by him after his father’s death. The case must therefore be considered as if the packages had been found, after the death of Lewis Willey, with the bills of sale and the amount of the notes intact.
This record leaves no room for doubt but that Lewis Willey, on the date name'd, intended to separate and set apart, and did separate and set apart, from his other property, the said notes and certificates, as the property of Lavalette O’Neil and Calista Warner; that at that time he intended to and did retain possession of said property, and appropriate to himself the income thereof; that he manifested his intention to one of his bankers and to Mr. Sherwood; that he, in effect, stated to those gentlemen that the beneficial interest in the principal sum represented by the notes and bank certificates was in Lavalette O’Neil and Calista Warner; that he should retain the bills of sale and property until his death, and that at
It is insisted that the gift was incomplete, and that the existence of the bill of sale is inconsistent with an intention to create a trust. The creation of a trust does not depend upon the use of a particular form of words, but it may be inferred from the facts and circumstances of the case. Crissman v. Crissman, 23 Mich. 217; Ellis v. Secor, 31 Mich. 185; Miller v. Aldrich, Id. 408; Leland v. Collver, 34 Mich. 418; Huxley v. Rice, 40 Mich. 73; Cummings v. Corey, 58 Mich. 494; Chadwick v. Chadwick, 59 Mich. 87; Beaver v. Beaver, 117 N. Y. 421, 428. In the last case cited it is said, “To constitute a trust, there must be either an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created.” The character of the transaction is to be determined, not alone from the bills of sale, but from all the facts and circumstances connected with the transaction. A bill of sale is not essential, as a declaration of trust is sufficient, of itself, to transfer the equitable title. Nor is its existence inconsistent with the intention to create a trust, where it appears to have been intended to operate as a conveyance of the legal title after full performance of the trust. A holding in .trust involves possession, control,- dominion, reinvestment, and the legal title. In orde'r to create a trust in the donor, a mere intention or promise to give in futuro is insufficient. There must be an act, or series of acts, which divest the donor .of the equitable ownership, and vest such ownership in the donee. Under the rule laid
It is not necessary, however, to rest the present cases upon the fact of the execution of the bills of sale. Here we have other evidences of a manifest intention to create a trust: The parol declaration of such a purpose; subsequent conduct and statements confirmatory of such purpose; and, at the close of the donor’s life, the two funds still separated from other like property, and intact. In Milroy v. Lord, 4 De Gex, F. & J. 264, Lord Chief Justice Turner said:
“I take the law of this court to be well settled that, in 'order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according, to the nature of the property comprised in the*581 settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual; .and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and, if the property be personal, the trust may, as I apprehend, be declared either’in writing or by parol.”
In Richards v. Delbridge, L. R. 18 Eq. 11, 15, the court say:
“The true distinction appears to me to be plain and beyond dispute. For a man to mate himself a trustee, there must be an expression of intention to become a trustee, whereas words of present gift show an intention to give over property to another, and mot retain it in the donor’s own hands for any purpose, fiduciary or otherwise.”
The present cases come clearly within this rule. It was not necessary that decedent should have made a formal declaration of trust. Its equivalent is all that was necessary. Decedent, however, in conversation with one of the witnesses, gave his own interpretation of what he had done, when he stated that he held the property in trust.
A full discussion of the English cases will be found in Ellis v. Secor, where a voluntary assignment of a chose in action is held to be a sufficient declaration of trust, if the grantor meant to pass the property, and, further, that the retained possession by the grantor of a voluntary deed of gift or settlement is not inconsistent with its enforcement, if intended to be effectual, and if capable of transferring title by its terms. In Johnson v. Smith, 1 Ves. Sr. 314, there cited, possession of a deed of gift of chattel interests and securities was retained by the donor, and was mot intended to 'operate a beneficial interest in the grantee until the death of the grantor. See, also, Bunn v. Winthrop, 1 Johns. Ch. 329; Martin v. Funk, 75
In the Warner case the court ruled as follows:
“I understand that it is agreed here that Orville Willey and the other Willey (Bradley Willey) are children and heirs at law of Lewis Willey, deceased; and it is proposed to show by them statements that were made by their father, and facts and circumstances that came within his knowledge, as well as their own, to show what disposition was made of this identical property. The court holds that that, under the statute, would be clearly incompetent, 'and declines to receive it. This ruling is to be taken as though the evidence was taken, and it came up on a motion to strike the same from this case.”
The ruling was correct. Howard v. Patrick, 38 Mich, 795; Ripley v. Seligman, 88 Mich. 188; Penny v. Croul, 87 Mich. 15.
The decree in each case is affirmed, with costs in each to complainant.