13 R.I. 701 | R.I. | 1882
The facts, as stated in the bill which is demurred to, are the following, to wit: William Sprague, the grandfather of the parties to the suit, died January 25, 1834, leaving a will, subsequently admitted to probate, which contained the following clause or bequest, to wit: "I give and bequeath *702 unto my son Benoni the sum of five thousand five hundred dollars to and for his use and benefit during the term of his natural life. And I do hereby order and direct my executors hereinafter named within one year after my decease to invest the said sum of five thousand five hundred dollars, or so much thereof as in their discretion may seem advisable, in real estate, and to take a deed thereof in trust to and for the use and benefit of my said son Benoni during his life, and afterward to his children, including those before named, and to his heirs forever." The testator's two sons, Amasa and William, were named as executors of the will, and qualified as such. In 1844, William, said Amasa having died, did, as surviving executor or trustee, invest a portion of the $5,500, bequeathed as aforesaid, in real estate, taking conveyance to himself, to have and to hold, to him his heirs and assigns, "in trust that he shall suffer and permit the aforenamed Benoni Sprague to use, occupy, possess, and enjoy the aforegranted premises for and during the time of his, the said Benoni Sprague's, natural life without being liable to any charge for rent therefor, and from and after the decease of the said Benoni Sprague, then in further trust to convey said premises in equal shares to the child or children or their descendants of the said Benoni Sprague, said descendants taking the share to which their parents would have been entitled if living, to them, their heirs and assigns forever." Benoni Sprague is still living in the seventy-ninth year of his age. He had at the decease of the testator three children, to wit: Benoni, Henry, and Susan, who were all named in the will in a part preceding the clause above recited. Benoni, the younger, died in 1853, leaving his mother, the wife of Benoni, Senior, who is still living, his sole heir at law.1 A year after the death of the testator, Benoni, Senior, had a fourth child born to him, namely, William Sprague, the complainant. The four children aforesaid are the only children that Benoni, Senior, ever had, and all of them but Benoni, Junior, are still alive. August 31, 1881, Benoni, Senior, and the complainant jointly conveyed one undivided fourth part of the real estate aforesaid to one Rollin Mathewson, who the same day conveyed *703 the same to the complainant. The complainant claims that under said conveyances he is entitled to said undivided fourth in fee simple, and alleges that, on October 18, 1881, he applied to the defendant, who is now, by appointment of this court, trustee in place of William Sprague, his uncle, deceased, to give him a deed of release and quitclaim of said undivided fourth, offering to pay the cost thereof, which request the defendant refused to perform. The complainant, therefore, asserting that said trust deed is a cloud on his title, prays that the defendant may be decreed to execute such a deed of release and quitclaim, and for general relief.
The complainant contends that there is no legal title in the trust estate outstanding in the defendant, the trust having been executed by the statute of uses. We do not think this position, looking simply to the trust deed in its legal aspects, is tenable. The conveyance to the original trustee was a conveyance to him in trust to convey, after the death of Benoni Sprague, Senior, to his children or their descendants. It imposed an active duty on the trustee which he could not perform unless he retained the legal estate. And this court, as well as other courts, has held that when such a duty is imposed, though it be merely the formal or ministerial duty of conveying the estate, the trust is not executed until the duty either actually has been or may be presumed to have been performed. Read v. Power,
Demurrer overruled.