197 Mich. 21 | Mich. | 1917
William Wilcox, 83 years of age, and a bachelor, of Honeoye Falls, Monroe county, N. Y., a small village about 16 miles from Rochester, died December 22, 1912, at Honeoye Falls, intestate. His sister, Lorinda Kendall, George Hubbell, son of a deceased gister, Susan Riehards, a daughter of another deceased sister, Raymond H., Sanford P., Louise M., Robert C., and Marion Wilcox, of Grand Rapids, Mich., children of Frederick P. Wilcox, a nephew of the deceased, survived him. Robert C. and Marion Wilcox are infants, represented by their mother as next friend. On the 30th day of October, 1912, William Wilcox, by an instrument executed in the county of Monroe, in the State of New York, duly acknowledged on the same day before a notary public for that county, sold and assigned, transferred and set over to the Michigan Trust Company, of Grand Rapids, 86 mortgages, described in said instrument, together with the notes, bonds, or other obligations to which the mortgages were collateral. On the same date he executed another instrument, to which he and the Michigan Trust Company, of Grand Rapids, are' parties, which excepting the acknowledgments thereto, is here set out:
“This agreement made this 30th day of October, 1912, in duplicate, by and between William Wilcox, of Honeoye Falls, Monroe County, N. Y., and the Michigan Trust Company of Grand Rapids, Mich., hereinafter called the trustee, witnesseth:
“(1) Said Wilcox has a number of notes secured by mortgages on real estate in Kent county, Mich., and he desires to be relieved of the same. He has this day assigned all of said notes and mortgages to said trustee, and he may from time to time place in the hands of said trustee moneys and other property, all of said notes, mortgages, moneys, and other property*24 to be held by the said trustee in accordance with the terms of this instrument.
“(2) Said trustee shall manage and control all of the property turned over to it under this agreement in such manner as it shall deem best. It shall have the right to invest and reinvest the principal of all moneys coming into its hands under this agreement in interest-bearing or income-producing notes, mortgages, bonds, or other securities. It shall have the right to sell and assign all or any part of the properties now or hereafter embraced in this trust, at such times and at such prices and upon such terms as said trustee may deem to be for the best interest of the trust. It shall have the right to take all legal steps and institute and conduct all suits or legal proceedings, either in its own name or in the name of said Wilcox, which may be necessary or proper for the purpose of realizing on or collecting any sums which may be due on any of the securities embraced in this agreement. It shall have the right to pay all taxes and assessments which may be levied upon any property embraced in this agreement, as well as all taxes, assessments, and insurance premiums upon properties covered by real estate mortgages and which the trustee may deem it necessary or proper to pay in order to protect the interests of the trust. Said trustee shall have the right to make such other and further disbursements as in the judgment of said trustee may be necessary or suitable for the proper care and management of the property embraced in this trust. The trustee is authorized to make such disbursements out of the funds belonging to this trust or to advance moneys therefor if it deem it best so to do, such advances to be refunded to said trustee out of said trust property.
“(3) Said trustee shall be held to no obligation under this agreement, save the exercise of good faith and ordinary diligence in the discharge of those duties which by the terms of this agreement it has undertaken.
“ (4) The trustee shall keep a true account of all the affairs of the trust and shall on the 1st days of January and July in each year, or as soon thereafter as is reasonably practical, render to said Wilcox a statement of its receipts and disbursements as such trustee*25 during the six months preceding, keeping separate the principal of the trust fund from the income therefrom, and shall also render to the said. Wilcox such a statement at any time whenever requested so to do.
“(5) The trustee shall receive for its services under this agreement one-half of 1 per cent, per annum of the principal of said trust fund, to be paid semi-annually from the income from said trust fund. If the principal of the trust fund is increased by additions thereto made by said Wilcox, or in any other manner, the trustee’s fees shall be increased proportionately. The trustee shall also deduct from said income all reasonable expenses or charges of whatsoever kind or nature, including attorney and counsel fees, tó which said trustee shall be put in the performance of the trust or obligations created by this agreement, or by reason of its connection with the properties embraced in this agreement, or the management or discharge thereof.
“(6) The net income from the trust fund in the hands of said trustee under this agreement, after payment of its fees and expenses, shall be paid to the said Wilcox from time to time in such amounts as he may request. Should the said Wilcox not use all the said income, he may from time to time direct the said trustee to transfer any part of such accumulated income to the principal of the trust created by said instrument, and the same shall thereupon and thereafter be in all respects a part of the principal of the trust fund and be subject to all the provisions of this instrument governing such principal.
“(7) The trust created by this instrument shall terminate upon the death of the said Wilcox. All moneys then in the hands of said trustee from the income of the trust created by this instrument shall, after the payment of the trustee’s fees and expenses as hereinbefore provided, be paid by the said trustee as the said Wilcox may by his will direct, or in default of such will to his heirs at law. The principal of said trust fund, including all properties and rights of every name and nature, shall, upon the death of the said Wilcox be transferred and delivered by the said trustee as follows, viz.: To the children of his late nephew, Frederick P. Wilcox, Louise M. Wilcox, Eaymond H.*26 Wilcox, Sanford P. Wilcox, Robert C. Wilcox, and Marion Wilcox, in equal shares, share and share alike.
“It is agreed that said William Wilcox and said trustee may at any time within two years from date, by mutual instrument, executed with the same formalities and in the same manner as this instrument is executed, provide for a different disposition at the termination of said trust of the property constituting the principal of the trust fund hereby created.
(Copy) (M. T. Co.) (Seal)
In witness whereof, the said William Wilcox has hereunto set his hand and seal and the said trustee has caused these presents to be executed by its proper officers and its corporate seal to be hereto affixed the day and year first above written.
William Wilcox. (Seal.)
The Michigan Trust Company,
By Lewis H. Withey,
President.
and George Hefferan,
Secretary.
Signed, sealed and delivered in presence of Horace J. Tuttle, as to William Wilcox.
■ Henry W. Hall, as to William Wilcox.
John H. Schouten,
Elsie E. Wurzburg, as to M. T. Co.”
Mr. Hubbell, having been appointed administrator of the estate of William Wilcox, gave notice to the Michigan Trust Company that he claimed that the assignment of mortgages and the trust agreement were invalid and directing the Michigan Trust Company not to carry out or not to further carry out the said trust agreement.
Plaintiffs, who are the beneficiaries under the said trust agreement, thereupon filed the bill of complaint in this cause, attaching, a copy of the trust agreement and of the assignment of mortgages, setting up sub
The trust company filed a formal answer, submitting itself to the direction of thé court. The administrator alleges that the assignment of the .securities was procured by undue influence, fraud, and deceit practiced upon William Wilcox by the mother of plaintiffs and by other persons unknown to defendant, that the deceased, Wilcox, was at the time of the alleged execution of the assignment mentally incompetent to execute it, and he denies that said Wilcox knowingly entered into an agreement in writing with the Michigan Trust Company with reference to the notes and bonds and mortgages, and alleges upon information and belief that, if the said trust agreement was signed by him, his signature was obtained by undue influence, fraud, and deceit practiced by Caroline B. Wilcox and by other persons, and that he was mentally incompetent to execute that agreement.
The legal effect of the instrument claimed by the plaintiffs is denied by the answer, and the defendant therein asks for affirmative relief and for a decree that the alleged assignment and trust agreement are null and void, that the defendant as administrator be
The court below took up the hearing of this cause December 1, 1914. The proofs were closed January 80, 1915, and on the 8th day of October, 1915, the cause having been in the meantime argued by counsel and considered by the court, a decree was entered agreeably with the prayer of the plaintiffs’ bill.
It is contended by the defendant administrator, appellant, that:
(1) Construed in the light of the facts, even though it was competently and freely made, the agreement presented as a trust agreement is invalid as a trust agreement because it was executed “without the intention necessary to a valid trust agreement.”
(2) Considered as a legal instrument, without regard to the facts, the trust agreement is invalid as a matter of law.
(3) As a matter of both fact and law William Wilcox was not mentally competent to execute the agreement, and it was not made with freedom from undue influence.
(4) Mrs. Wilcox, mother of plaintiffs, and Mr. Tuttle, a lawyer, a witness to the instruments, were not competent witnesses to the making of the trust agreement.
It will be noted that the third contention stated is double, in that it asserts lack of mental competency
The fourth contention of appellant must be overruled. Mrs. Wilcox was a witness for the plaintiffs and after her examination had proceeded for a time objection was made that she was testifying to matters
It is well to have the facts in mind. By one of the instruments in question William Wilcox assigned certain notes and mortgages to the Michigan Trust Company; by the other he created a trust, of which the Michigan Trust Company was trustee, and of which he and the children of Mrs. Wilcox were beneficiaries. It appears that Frederick P. Wilcox, husband of Caroline Wilcox, died July 15, 1912. He for a long time had done business for William Wilcox in Michigan, apparently to his satisfaction and profit. On July 22, 1912, Mrs. Wilcox wrote William Wilcox, telling him of her husband’s death, and advising him that he must get some one to look after his business. By her husband’s will the Michigan Trust Company had been
I find in the circumstances and in the testimony on this subject nothing to support the conclusion that Mrs. Wilcox or Mr. Tuttle were agents for William Wilcox; that either was “a person who* acted as an agent in the making or continuing of a contract with any person who may have died.”
What is left of the third contention of the appellant is that William Wilcox was mentally incompetent to do what he did, namely, intelligently execute the assignment of the mortgages and the trust agreement. William Wilcox was a singular character. Witnesses were produced on the part of the plaintiffs and on the part of the defendant for the purpose of making for the court a representation or picture of the man William Wilcox, his associates, his habits, his apparent capabilities, and, as is usual, much of the testimony is negative, little or none of it that of persons who had actually made any real and continued observation of the man- for the purpose of forming an opinion of his mental strength or weakness. Certain habits and peculiar things about him were known to a great many people. There is- no real history of his early years. Apparently he had, in his later years at least, followed no occupation, engaged in no business. He did not acquire his fortune. He had at various times received money from certain estates, and this, or some of it, had been turned over and for about forty years cared for by his brother, Otis N. Wilcox, and after his death by Frederick P. Wilcox, a son of Otis, all without any charge to William. William had never drawn much of the money, and it had accumulated until there was some $70,000 invested in real estate mortgages in and around Grand Rapids. When. Frederick P. died, then, as has been stated, his wife declined to
There is testimony that he had during the last year and a half of his life several “fainting spells.” In one of them, about six months before he died, he was carried unconscious to his room. Lapses of memory were noticed by persons who knew him, and a recurrence by him in questions he asked to matters he had been informed about. He lived poorly, dressed poorly, spent no money. For twenty-five years he had dyed his hair and whiskers, and this he ceased to do. He pilfered small articles from the stores in the village where he lived, and picked up and saved or used articles of no value. He was found dead in his room in a hotel building in which business had ceased, which he had occupied for a considerable time, sitting in a chair, partly dressed. There was no fire in the room. He had on his person six purses, containing some $500 in paper money and $16 in silver money. In a valise, a “telescope,” in his room, was a money belt containing about $1,500 in paper money, which appeared to have been
Without attempting here to analyze the testimony, and limiting myself to a statement of conclusions, I find that William Wilcox was competent to make, and that he intelligently did make, the instruments in ques
There is to be considered the second contention of the appellant, namely, that the trust agreement is in law invalid. It-is said that, assuming that upon the face of the instrument it created a valid trust to receive and pay over to the settlor for his life the income of the mortgages, the purpose of the instrument is permitted by the law of New York; but, it is. said, by the express terms of the instrument the trust was to terminate from the death of William Wilcox, and the disposition of the estate provided for in the seventh clause of the agreement cannot be sustained as made pursuant to a second trust, or a power in trust, or as a gift inter vivos or causa mortis, or a testamentary disposition of property.
Whether the trust agreement created a mere agency for the personal benefit and convenience of William Wilcox was a testamentary disposition of property, to take effect only after his death, and was therefore revocable at his pleasure, or whether, with the assignment and delivery of the fund, it created an executed express trust, or trusts, disposing irrevocably, except according to the condition of the principal of his estate to persons, who at once acquired a vested interest therein, is the serious question which is presented.
I have said that the instrument was executed with the intention imported by its terms, meaning that it was the purpose of William Wilcox to provide for doing just what has been done and what will be done if the principal of the estate is paid to the designated beneficiaries. This intention the courts should carry into effect if it can be done without doing violence to established rules. In Frederick’s Appeal, 52 Pa. 338 (91 Am. Dec. 159), a somewhat similar and in some respects dissimilar instrument was considered, with the
“If the intention of the grantor at the time he delivers a voluntary deed of trust is to part with the legal title, the trust will be enforced in favor of the beneficiaries, even though their enjoyment of the estate is postponed until the death of their benefactor. Equity, because of exceptional facts in rare cases, has revoked the trust or held' it revocable by the grantor, because plainly a testamentary instrument; but the general rule has remained without change.”
In the note “a,” 1 Perry on Trusts (6th Ed.), p. 115, the author has collected and to some extent analyzed a considerable number of decisions, saying;
“There have been many cases of valid trusts which in practical effect were intended to be hardly more than dispositions of the property after the settlor’s death. Thus cases are frequent where the owner of property has, without consideration, conveyed it to another to hold as trustee for the benefit and enjoyment of the settlor during his life, and on his death upon further trust for other beneficiaries or to pay over to designated persons. Nichols v. Emery, 109 Cal. 323 [41 Pac. 1089, 50 Am. St. Rep. 43]; Lewis v. Curnutt, 130 Iowa, 423 [106 N. W. 914]; Brown v. Mercantile Trust Co., 87 Md. 377 [40 Atl. 256]; Bromley v. Mitchell, 155 Mass. 509 [30 N. E. 83]; Kelley v. Snow, 185 Mass. 288 [70 N. E. 89]; New York Life Ins. & Trust Co. v. Livingston, 133 N. Y. 125 [30 N. E. 724]; Rynd v. Baker, 193 Pa. 486 [44 Atl. 551]; Wilson v. Anderson, 186 Pa. 531 [40 Atl. 1096, 44 L. R. A. 542]; Kraft v. Neuffer, 202 Pa. 558 [52 Atl. 100]; Fry v. Mercantile Trust Co., 207 Pa. 640 [57 Atl. 43]; Brace v. Van Eps, 12 S. D. 191 [80 N. W. 197], 13 S. D. 452 [83 N. W. 572]. See, also, Durand v. Higgins, 67 Kan. 110 [72 Pac. 567].
*37 “The essential difference between such a trust instrument and a will is that the former acts at once to vest the interests of the beneficiaries, although their enjoyment is postponed until after the death of the settlor, but a will does not take effect until the death of the testator, and until that, time vests no interests in the beneficiaries.”
In Nichols v. Emery, 109 Cal. 323, 329 et seq. (41 Pac. 1089, 1091, 50 Am. St. Rep. 43), is to be found the following statement of the controlling rules:
“It is undoubtedly the general rule enunciated by the leading case of Habergham v. Vincent, 2 Ves. Jr. 231, and oft repeated, that the true test of the character of an instrument is not the testator’s realization that it is a will, but his intention to create a revocable disposition of his property to accrue and take effect only upon his death and passing no present interest.
“The essential characteristic of an instrument testamentary in its nature is that it operates only upon and by reason of the death of the maker. Up to that time it is ambulatory. By its execution the maker has parted with no rights and divested himself of no modicum of his estate, and per contra no rights have accrued to and no estate has vested in any other person. The death of the maker establishes for the first time the character of the instrument. It at once ceases to be ambulatory; it acquires a fixed status and operates as a conveyance of title. Its admission to probate is merely a judicial declaration of that status.
“Upon the other hand, to the creation of a valid express trust it is essential that some estate or interest should be conveyed to the trustee, and when the instrument creating the trust is other than a will, that estate or interest must pass immediately. 1 Perry on Trusts (6th Ed.), § 92. By such a trust, therefore, something of the settlor’s estate, has passed from him and into the trustee for the benefit of the cestui, and this transfer of interest is a present one, and in no wise dependent upon the settlor’s death. But it is important to note the distinction between the interest transferred and the enjoyment of that interest. The enjoyment of the cestui may be made to commence in the future and to depend for its commencement upon the termina*38 tion of an existing life or lives or of an intermediate estate. Civ. Code, § 707.
“Did the grantor in the present case divest himself by the instrument of any part of the estate in the land which he had formerly owned and enjoyed? By the terms of the instrument an estate was assuredly conveyed to the trustee. The language is appropriate to a conveyance, and the grantor’s execution and delivery of the deed (both found), he being under no disability, and impelled by no fraud, operated to vest so much of his estate in the trustee as was necessary to carry out the purpose of the trust. The especial purpose was to sell and distribute the proceeds upon his death — a legal purpose authorized by section 857 of the Civil Code. The term of the- duration of the trust, the life of the settlor, did not violate the provisions of section 715 of the same Code. We havé therefore an estate conveyed to a named trustee for named beneficiaries, for a legal purpose and a legal term, such a trust as conforms in all its essentials to the statutory requirements. That no disposition is made by the trust of the interest and estate intervening in time and enjoyment between the dates of the deed and the death of the settlor cannot affect the trust. The trustee takes the whole estate necessary for the purposes of the trust. All else remains in the grantor. Civ. Code, § 866. In this case there remained in the grantor the equivalent of a life estate during his own life, and he was thus entitled to remain in possession of the land, or lease it and retain the profits.
“Nor did the fact that the settlor reserved the power to revoke the trust operate to destroy it or change its character. He had the right to make the reservation (Civ. Code, § 2280), but the trust remained operative and absolute until the right was exerciséd in proper mode. Stone v. Hackett, 12 Gray (Mass.), 232; Van Cott v. Prentice, 104 N. Y. 45 [10 N. E. 257]. Indeed, this' power of revocation was strongly favored in the case of voluntary settlements at common law, and such a trust without such a reservation was open to suspicion of undue advantage taken of the settlor. Lewin on Trusts, pp 75, 76; Perry on Trusts (6th Ed.), § 104.”
See, also, Seaman v. Harmon, 192 Mass. 5 (78 N. E.
In the instrument before us there is an estate designated, a trustee named, a trust expressed, an owner of the estate, who is settlor of the trust, designated beneficiaries. The instrument recites the transfer of title to the property by the settlor to the trustee. There are persons who have an immediate right to the possession of the property upon the ceasing of the precedent estate — upon the death of the settlor. The power to make a different designation of beneficiaries is reserved, to be exercised with the consent of the trustee, by a mutual instrument. It may be said that two trusts are declared; the second not to take effect in possession and enjoyment until the death of the settlor. This is not because the instrument is testamentary in character, but because the instrument in terms so declares. The rights of the beneficiaries accrued at the time of the execution and delivery of the instrument and the property, except as the instrument contained a limited right of revocation. A power of revocation in a deed of trust does not render the instrument testamentary. Van Cott v. Prentice, 104 N. Y. 45 (10 N. E. 257); Robb v. Washington and Jefferson College, 185 N. Y. 485, 493 (78 N. E. 359).
It is said that by the terms, of the instrument the trust ended with the death of the settlor. This argument is based upon the language of paragraph 7. But the trustee is to hold the property “in accordance with the terms of this instrument,” paragraph 1. The trust declared in the paragraphs preceding 7 relates to the acquiring, holding, investing of the fund, and paying the income thereof. No other trust is declared. As I interpret the instrument, the intention is plain to declare a second trust, and it is declared in paragraph
In the instruments which were executed a valid trust was created, the testimony does not impeach the capacity of the settlor, or the honesty of those charged as influencing him improperly, and the decree below, which is in accordance with these views, must be affirmed, with costs, to appellees.