64 W. Va. 328 | W. Va. | 1908
The decree appealed from set asido and declared null and void a deed of trust and perpetually enjoined and restrained the trustee and beneficiary from enforcing the same. The land covered by the deed of trust was a valuable tract on the west side of the Kanawha, in the county of that name, and below and near the mouth of Coal. It had been conveyed, by deed dated April 20, 1861, by Rachael M. Tompkins and her children to Henry P. Tompkins, trustee, that deed reciting that the said Rachael M. Tompkins, the mother of Beverly Tompkins, and his brothers and sisters, the grantors therein, “being willing and desirous of making a settlement and provision out of their several interests and portions in said estate for the maintenance of the wife and •children of the said Beverly Tompkins do hereby grant unto Henry P. Tompkins for the uses and trusts hereinafter declared,” etc., with this sequent provision: “In trust that he the said Henry P. Tompkins will hold the tract of land * * * * *y/for the sole use and benefit of the wife’ and children of the said Beverly Tompkins^ and free from all debts, demands or claims upon him, the said Beverly Tompkins, and upon this further trust that he the said Henry
Later, Henry P. Tompkins resigned this trust. An order was entered by the circuit court of the said county, appointing B. Tompkins “ trustee for Sally Tompkins and her children in the place of said IT. P. Tompkins; but not to take place until B. Tompkins shall give bond before the clerk of this court in the penalty of $2500, with good security approved by the clerk, conditioned according to law.” There is no evidence that this bond was ever given. Beverly Tompkins, trustee, and Sallie H., his wife, petitioned said circuit court for leave to execute a deed of trust on said real estate to secure the payment of $2500: On January Y, 1882, it was. adjudged, ordered and decreed “that said petitioners have leave to borrow said sum of $2500 upon the faith of said real estate and secure the payment of the said sum and its interest by deed of trust duly executed by them and each of them on said real estate so conveyed and held for - the use of the said Sallie H. Tompkins as aforesaid.” The children of the said Beverly and Sallie were not made parties to this proceeding, nor were they given notice thereof. Notwithstanding this, on January 80, 1882, a deed of trust on the land aforesaid was executed to James H. Ferguson, trustee, by Sallie IT. Tompkins and Beverly Tompkins, “her husband and trustee,” to secure to James A. Nighbertthe sum of $2,000, with interest, payable two years thereafter. Beverly Tompkins signed and acknowledged this deed of trust as ‘ ‘trustee of Sallie H. Tompkins,” and Sallie H. Tompkins acknowledges it as “ the wife of Beverly Tompkins (who is also her trustee).” It is this deed of trust that has been declared null and void and the enforcement of which has been perpetually enjoined.
We observe that the land was conveyed “in trust,” to be held by the trustee “for the sole use and benelit of the wife and children of the said Beverly Tomkins,” and “upon this further trust” that the trustee “ will apply the rents, issues and profits of the tract of land conveyed to the use and benefit, maintenance and support, of the wife and children of the said Beverfy Tompkins.” Let us also distinctly note that the conveyance is declared to have as its intention the making of “ a provision for his family,” that is, the family of the said Beverly Tompkins. And by no means let us overlook the part of this deed which must control greatly in its interpretation, that part being declaratory that the property “shall not in any mode or manner be subjected to or made liable for the debts of the said Beverly.” The foregoing provisions enlighten us as to the ownership of the land conveyed by the deed. This was not a conveyance directly to the wife and children. In such case, the words “wifeand children” would be words of purchase, and the wife and children living at the date of the-delivery of the deed would take jointly, even to the exclusion of after-born children. It was a conveyance to a trustee for the use and benefit of a family. And it is provided how this use and benefit shall accrue to them; that is, by the trustee’s applying the rents, issues and profits of the tract of
Denying an equitable estate in fee to Sallie H. Tompkins, as we do, then -it is said that the deed vested in her and the four children ih being at the time of its execution a joint estate in the land, and that Nighbert’s deed of trust is a valid and subsisting lien upon her interest therein. Connected with this contention are questions presented as to the validity of the execution of the deed of trust, it being insisted that the same was signed and acknowledged by Beverly Tompkins not as husband but by Beverly Tompkins as
Clearly, the deed aforesaid created such a trust that the beneficiaries took no interest which they could alien or anticipate. Such alienation or anticipation would obviously defeat the purpose of the trust, and undo all the grantors, intended to do in its making. If a joint estate was intended, and the mother could anticipate or alien immediately, certainly any one of the children could do likewise. Thus the property, placed in the hands of a trustee as a producing whole for a distinct purpose, could be disturbed, and that purpose overridden. We hold that the deed conveying this property to a trustee for the use and benefit, maintenance and support, of the wife and children of Beverly Tompkins, and for the purpose of making provision for his family,, created a blended trust in which the interest of the beneficiaries were so inseparable that none of them could be aliened during the existence of that trust. “ Where property is settled for the maintenance of a family, the expenditure must not exceed the annual income, nor can any debt contracted by the head of the family (himself only one of the cestuis que trust), nor by the trustee (although the profits of the trust property be pledged for their payment), be charged on the prospective profits beyond the current income, so as to deprive the beneficiaries of the' support provided for them. * * * * The purpose is to-protect the property against the improvidence and waste of the cestuis que trust, and to make that which, under their management, would have been dissipated in a short time a permanent fund, furnishing some support for the household for an indefinite period. Hence, no one of the cestuis que trust has any interest separable from the rest which can be charged or disposed of by him. The fund is provided for the common support of the family, and can only be enjoyed jointly.” 2 Minor’s Inst. (4th ed.) 227. This doctrine is supported by many cases there cited. It is, however, simply the application of sense and equity. In
The .deed did not vest an estate in the wife and children in joint tenancy. It was not a direct conveyance, but a provision for the family. The grant contains more than a mere conveyance to the wife and children. If it were simply a conveyance to wife and children, Wills v. Foltz, 61 W. Va. 262, and Fitzpatrick v. Fitzpatrick, 100 Va. 552, would apply. Then a joint estate in the wife and children in esse would be created. Those cases determine upon the words wife and children, without more; but in this case there is much more in the words of the deed to control in the construction of the grant. To Wills v. Foltz, supra, as reported in 12 L. R. A. (N. S.) 283, we find an eminently valuable case note, wherein we are shown that “ the tendency of the courts
The decree of the circuit court is right, and we affirm it.
Affirmed.