9 Del. Ch. 306 | New York Court of Chancery | 1912
The facts as shown by the evidence arc that Elizabeth Campbell in April, 1909, being then about
The trust was created in this way and was in substance as follows: The company certified under its corporate seal that Elizabeth Campbell had deposited with it $2,500 to be held in trust to invest and pay the net income thereof to Samuel M. Farrady, her grandson, for life; if Mary A. Farrady, his mother, should be living at his death, then to pay the income to her for life; and if Charles W. Farrady, a brother of Samuel M. Farrady,
On December 13th, 1909, at the request of Mrs. Campbell, Mr. Rossell again called on her at her house, found her critically ill and desirous of changing the disposition of all her property, both that theretofore given in trust and the rest of her property. So Mr. Rossell drew and she executed, under her seal with witnesses, a paper revoking the 'trust and directing that the money be paid to her, or in case of her death to Mary A. Farrady, her daughter, or to her (Elizabeth Campbell’s) executor. At the same time she made a new will giving all her property to her daughter, Mary A. Farrady, and by the direction of Mrs. Campbell the first will, made in April, was destroyed by Mr. Rossell. On December 20th, 1909, seven days after the revocation, Elizabeth Campbell died, and the daughter and the two grandsons, being all the beneficiaries mentioned in the settlement, survived her. At the time of
A bill was filed by the executor and trustee, making the daughter and two grandsons and the hospital parties defendant, asking instructions as to the effect of the alleged revocation, and for directions as to the disposition of the trust fund. By their joint answer, as amended, filed July 24th, 1911, the daughter and two grandsons assert that the settlor did not know and was not informed of the contents or effect of the settlement; that when it was executed she intended to make a will; and that the settlement was then represented to her by the draughtsman to be a will; and further that on December 13th, 1909, it was her intention to revoke the will previously made and make a new one. No answer was made by the hospital, and its representatives verbally submitted its rights to the determination by the Court without argument on its behalf.
There was no allegation of mental incapacity, or of improvidence, or unreasonableness in making the settlement. By the answer the ground urged for the annulment of the settlement is that the settlor mistook the settlement to be a will. The evidence does not sustain these allegations of the answer. She could not have considered the settlement to be a will, because on the same occasion when the settlement was made she executed a will disposing of all the rest of her property not included in the settlement. Testimony respecting the making of the will by Elizabeth Campbell at the time she made the donation of money in trust, was a very material fact, as showing her then existing intentions and purposes. It was unimportant to prove the contents thereof, but such proof of- the making of a will was relevant, and properly admissible as tending to show the intent of Mrs. Campbell to make the donation which became effective immediately and not dependent on her death.
In this case there is no evidence of mental incapacity, meaning by this an intellectual inability to understand the provisions of the settlement, which were simple and easily compreprehensible by even so inexperienced a person as the settlor was shown to have been. It is not even urged that there was any
But it is argued for these defendants who are seeking to invalidate the settlement, that it was unreasonable and improvident, and that the absence of a reservation of a power of revocation by the settlor invalidated it, or at least showed a mistake on her part such as gave her a right to annul it in'her life. This opens up an interesting and much discussed subject. The trust was perfectly created, there beip.g a declaration of trust by the settlor, an acceptance by the trustee, and a complete delivery of the subject matter of the trust by the transfer of the money from the bank to the trustee. Notice to the cestui que trust is not essential to the validity of the trust. 1 Perry on Trusts, § 105. With the case of Crumlish v. Security Trust & Safe Deposit Co., 8 Del. Ch. 375, 68 Atl. 388, available as a guide, a full examination of the authorities does not seem to be necessary, for in that illuminating case Chancellor Nicholson made a painstaking examination of the whole range of the cases, English and American, which had then been decided on the question then before him as to the effect of the absence of a power of revocation in a voluntary settlement. The absence of a power of revocation reserved to the donor does not of itself invalidate the trust. This is clearly the view of Chancellor Nicholson, and it is supported by authority. Bispham’s Principles of Equity, § 67; Toker v. Toker, 3 De G., J. & S., 487; Sands v. Old Colony Trust Co., 195 Mass. 575, 577, 81 N. E.
“Where the intent to malee an irrevocable gift is perfectly apparent, or where even in the absence of such a clear intent, a sufficient motive (such as the protection against the grantor’s own extravagance, or the like) for making such a gift exists, the settlement cannot be disturbed. But where the deliberate intent does not appear and no motive exists, the absence of a power of revocation is prima facie evidence of mistake.”
But in the case just cited there was found satisfactory evidence of a sufficient motive to make an irrevocable settlement as the only kind needed by the settlor, and so the first part of the rule was applied. It was not necessary .to approve or disapprove the converse proposition. It may be concluded, rather, that the Chancellor in that case repudiated the proposition. In that case theie was no proof of either an intention or motive to make an irrevocable trust, and the absence of a power of revocation was prima facie evidence of mistake. The whole of Bispham’s rule is not now adopted by this Court in this case. The absence of a power of revocation is not prima facie evidence of a mistake by the settlor. The settlor may have intentionally omitted such power, and such intention may not have been expressed or communicated to any one, or in any manner. Surely the want of proof that, the settlor’s attention was called to the irrevocability of a properly executed settlement should not be deemed weighty in ascertaining intention. Russell’s Appeal, 75 Pa. St. 269. Yet the English cases attach great importance to the omission to advise the settlor as to the irrevocability of the trust. For instance, in Coutts v. Ackworth, L. R. 8 Eq. 558, it was said:
“Where the circumstances are such that the donor ought to be ad-* vised to retain a power of revocation it is the duty of a solicitor to insist upon the insertion of such power, and the want of it will in general be fatal to the deed.”
The burden of showing the intent and motive of the settlor, if it does not appear from the instrument creating the trust, rests upon whoever attacks the validity of the settlement. Taylor v. Buttrick, 165 Mass. 547, 549, 43 N. E. 507. Inasmuch as no evidence of mistake on the part of the settlor is pointed out, the settlement cannot be invalidated by regarding its irrevocability as prima facie evidence of mistake. Of course, if there had been clear evidence that the settlor intended to make a revocable gift or settlement, the making of an irrevocable one would have been a mistake, and under certain circumstances the Court of Chancery will afford relief against such mistake. But that is not true in this case. The testimony does not show that the settlor intended to make a revocable settlement. Her attempt made eight months later to revoke it, because she had changed her mind as to the persons to be benefited, does not show an intention present at the time of the execution of it to reserve such power of revocation.
The irrevocability of a settlement may make it so unreasonable and improvident in a particular case as to justify the Court in setting it aside in order to relieve the settlor of the consequences of her improvidence or imprudence. " Lord Selborne lays down this sensible rule in Hall v. Hall, L. R. 8 Ch. App. 430, 440 (1873):
“The absence of a power of revocation in a voluntary deed, not impeached on the ground of any undue influence, is, of course, material when it appears that the settlor did not intend to make an irrevocable settlement, or when the settlement itself is of such a nature, or was made under such circumstances, as to be unreasonable and improvident unless guarded by a power of revocation.”
In May on Voluntary Conveyances, 452 (Ed. of 1872), it is said that where it would have been more prudent to insert a power of revocation in such a settlement, the absence of it will be a great mark of fraud. This means the same thing as the principle announced by Lord Selborne above. Indeed, there is really not much dispute as to the rule, though there be wide
Was the irrevocable gift made by Elizabeth Campbell improvident or unreasonable? This is not clearly shown. When made she was seriously ill of an incurable disease, which by the evidence was likely to terminate her life within a short time, and she may have had other property or resources than those mentioned in the case. However this may be, the settlor does not need the protection of this Court, and the usual justification to annul a perfected gift, in order to relieve the settlor of the consequences of improvidence, does not here exist, for the settlor died within a few days after the attempted revocation. The caution and reserve of a court to exercise its great powers to undo what is solemnly done should deter it from so acting in this case, particularly where, as here, the expressed intention of the settlor to protect some money for an improvident grandson will be so effectually carried out.
A decree will be made validating the trust established by Elizabeth Campbell as to the sum of $2,500, and directing the trustee company to hold it subject to the trust created concerning it by her declaration dated April 27th, 1909.