| Md. | Jul 15, 1879
delivered the opinion of the Court.
The appellants, as trustees, for the creditors of Abraham Horst, sued the appellee in assumpsit, for money payable by the defendant to the plaintiffs.
The only item of the. hill of particulars, in dispute, on this appeal, is the sum of one thousand dollars, claimed as balance due on farm sold by Abraham Horst, to the appellee.
Ho question arises on the pleadings.
At the trial, the appellant offered five prayers, three of which, the first, second and fifth, were rejected.
The appellee offered four, all of which were granted, to which action of the Court below, the plaintiffs excepted.
The appellee, the defendant below, was the son of Abraham Horst, who was the son-in-law of Peter Eshleman.
The appellants proved, that the appellee, in the year 1875, purchased of his father, A. Horst, a farm for $8600, all of which was paid, except $1000, “ which was left standing in the farm.” The appellants further proved, that afterwards, on the 10th of July, 1876, Abraham Horst conveyed to the appellants, for the benefit of his creditors, all of his property of every description, including bonds, notes, dioses in action, and accounts of A. Horst, with power to sue for and recover the same. The appellee proved, by A. Horst, that he had offered to sell the farm to the defendant for $8600, to which defendant at first objected; hut afterwards said he would take the farm at that price, provided witness would let the $1000 stand, which defendant said was his portion of the moneys his grandfather had placed in witness’ hands; witness said he would do that, and the defendant agreed to buy the farm on those conditions ; and a few days thereafter, the deed for the farm was executed by the witness to the defiendan!
The witness further said, that $1000 of _ this purchase money, was not paid to him in money for the following reasons:
“That in 1845, the witness, being the son-in-law of Peter Eshleman, the said Eshleman gave him the sum of $400; and afterwards in 1856, the said Eshleman gave him $2000 more, and at the same time, he told Abraham (the witness) that he gave him this $2000, on the following terms and conditions, viz., that he should hold the sum of $2000, and also the sum of $400 given eleven years before, for the benefit of the grandchildren of the said Eshleman, to he paid to them, with interest;” that on these terms and conditions, the witness took the money and used it in his business; that in 1858, his wife died ; in March, 1875, being the owner of the farm mentioned in the deed, he sold it to his son for $8600, and as a part payment thereon treated $1000 of the purchase money, as due the defendant as his part of the two sums above mentioned, with interest, etc., that there were five children for whose benefit the money was held in trust; and witness and defendant concluded that $1000 was about the fair share of the defendant, and therefore, that sum was allowed him.
Other testimon3r was offered, on cross-examination of Abraham Horst, and the defendant, tending to show the alleged trust as to the funds received hy the father, had never been recognized or executed by him as to his other children, and that the objects and terms of the trust were variant from those stated hy the witness A. Horst.
1st. That if the jury believe that Eshleman, the father-in-law of Abraham Horst, gave his son-in-law four hundred dollars in 1845, absolutely as a gift, and that eleven years afterwards, Horst received the sum of $2000, not as a loan, but as a -fund to be held in trust by him for his children ; and then for the first time it was agreed and understood, that the $400 previously given, should also be treated and held as in trust, the same as the $2000, then the jury are instructed that these facts are sufficient to create a trust in the said $400.
2nd. If the jury find that Abraham Horst received $2000 as a fund to be held for the benefit of his wife during her life, and after her death to be divided among her children, and that after his wife died and not before; the fund was held in trust for her children; and the money was to be equally divided between them, they (the jury) will ascertain each child’s share, with interest from their mother’s death to the date of the deed; and if they find a sum greater than a child’s share was left in the farm, bought by defendant of A. Horst, they will find for the plaintiffs for such difference.
3rd. That there was no evidence sufficient to establish a trust as to the sums of $400 and $2000 respectively between Abraham Horst and Samuel Horst, and A. Horst was not a trustee for those sums, and if they find the farm was sold by the former to the latter for $8600, which was not paid in full, and that A. Horst afterwards made to the plaintiffs the deed of the 10th of July, 1816, the plaintiffs are entitled to recover whatever portion of the purchase money remains unpaid.
The first and third propositions, which are the substance of the appellants’ first and fifth prayers, are founded upon the theory that the evidence is not sufficient to establish a trust in either of the sums, said to have been advanced by Eshleman.
The authorities fully sustain the appellants’ position, that the trust must he declared in terms “ clear and explicit, and point out with certainty both the subject-matter of the trust and the person who is to take the beneficial interest,” Perry on Trusts, secs. 77, 86, but the appellants’ first prayer does not present any such objection. It assumes that the trust, as to the sum of $2000, was to he held by Abraham Horst, “ in trust for his children,” hut declares that if the jury should find, “and then for the first time it was agreed and understood, that the $400 previously given should also he treated and held as in trust, the same as the $2000, then the jury are instructed that these facts are insufficient to create a trust in the said $400.”
The grounds of objection to the trust as to the item of $400, indicated in this prayer, are 1st, it was an absolute gift, 2nd, eleven years elapsed, between the gift, and the agreement between the father-in-law and son-in-law to convert it into a fund for the benefit of the children.
“All persons, ‘ sui juris ’ have the same power to create truts that they have to make a disposition of their property.” Perry on Trusts, p. 15, sec. 28.
It does not require a valuable consideration to make such trusts binding between the trustee and cestui que trust. Yet if such consideration was necessary, an agreement between two persons, in the relation of father-in-law and son-in-law, in behalf of their common descendants, to raise a fund for their benefit, would he both a good and
As to declarations of trust of personal property, it is said in that standard work upon the Equitable Jurisdiction of the Court of Chancery hy Spence, “ It seems to be agreed, as a general rule, that if a person effectually declares himself, or his debtor, to be trustee for another of the money or property to be recovered, whether in writing or (as trusts of personal estate are capable of being created without writing,) by acts and declarations of a decisive and definite nature sufficiently proved, the transaction will bo binding against him and his representatives, and this, whether the property be recoverable by the party himself, or by a trustee for him. The doctrine, said the Vice-Chancellor Wigbam, is not confined to cases where the legal interest is conferred or acquired in pursuance and execution of an antecedent agreement or direction leading to the uses or trusts of that property, it extends to all cases where the transaction is complete; that is, where the declaration by the party entitled, whether legally or equitably, shows a definite intention by that act, at once to denude himself of all beneficial interest in the subject in favor of another.” 2 Vol., p. 897, in mar.; Bayley vs. Boulcott, 4 Russ., 347; Bell vs. Cureton, 2 My. & K., 503; Jones vs. Croucher, 1 Sim. & S., 315, and 1 Hare, 461; note C., Sp. Eq., 897.
The character of a trust was impressed upon a sum of $400 by tbe agreement of Abraham Horst, to hold that amount, for the same purposes for which he received the $2000 from his father-in-law, viz., “in trust for his children.” It is not too much to say, that the one was the consideration for the other. There is no uncertainty in the subject-matter or the object of the trust, nothing optional or indecisive as set out in the prayer.
In the testimony of A. Horst, there is some contrariety between his statements of the declaration of the trust in his examination-in-chief and in his cross-examination. These discrepancies were to be weighed by the jury. They are to determine how far his testimony was to be relied on.
There is no reference to the testimony in the appellants’ first prayer, except so far as its substance is partially embodied therein, in relation to the first item of the alleged trust fund.
We think therefore, that the appellants’ first prayer was properly refused.
If we are correct in this conclusion, it follows almost necessarily, that the appellants’ second and fifth prayers, which constitute their second and third propositions should be refused.
Both of these virtually declare there was no sufficient evidence of a trust existing as to the funds in question, as to which the defendant was entitled to a share, and which as testified by his father, was to be deducted from the price of the land, or credited as part payment of the purchase money.
There was, in our opinion, competent testimony to establish the existence of a trust for the benefit of the grandchildren of Eshleman, in both items ; and if the jury believed the evidence, the defendant was entitled to an allowance for his share of the fund, with such interest as the jury might allow.
The defendant’s prayers being the reverse of the propositions above considered, it follows that they were, in our opinion, properly granted.
Judgment affirmed, with
costs to the appellee.