King v. Mitchell, 33 U.S. 326 (1843)
U.S. Supreme CourtKing v. Mitchell, 33 U.S. 8 Pet. 326 326 (1843)
King v. Mitchell
33 U.S. (8 Pet.) 326
William King, in his will, made the following devise:
"In case of having no children, I then leave and bequeath all my real estate, at the death of my wife to William King (the appellant), son of my brother James King, on condition of his marrying a daughter of William Trigg, and my niece Rachel his wife, lately Rachel Finlay, in trust for the eldest son or issue of said marriage, and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trig, that will marry a child of my brother James King, or of sister Elizabeth, wife of John. Mitchell, and to their issue."
Upon the construction of the terms of this clause, it was decided by this Court in 28 U. S. 3 Pet. 346 that William King, the devisee, took the estate upon a condition subsequent, and that it vested in him (so far as not otherwise expressly disposed of by the will) immediately upon the death of the testator. William Trigg having died without ever having had any daughter born of his wife Rachel, the condition became impossible. All the children of William Trigg and Rachel his wife, and of James King and Elizabeth Mitchell, are married to other persons, and there has been no marriage between any of them by which the devise over, upon the default of marriage of William King (the devisee) with a daughter of the Triggs would take effect.
The case was again brought before the Court on an appeal by William King, in whom it had been decided the estate devised was vested in trust, and the Court held that William King did not take a beneficial estate in fee in the premises, but a resulting trust for the heirs at law of the testator.
There is no doubt that the words "in trust" in a will may be construed to create a use if the intention of the testator or the nature of the devise requires it. But the ordinary sense of the term is descriptive of a fiduciary estate or technical trust, and this sense ought to be retained until the other sense is clearly established to be that intended by the testator. In the present case, there are strong reasons for construing the words to be a technical trust. The devise looked to the issue of a person not then in being, and of course if such issue should come in esse, a long minority must follow. During this period it was an object with the testator to uphold the estate in the father for the benefit of his issue, and this could be better accomplished by him, as a trustee than as a guardian. If the estate to the issue were a use, it would vest the legal estate in them as soon as they came in esse, and if the first born children should be daughters, it would vest, in them subject to being divested by the subsequent birth of a son. A trust estate would far better provide for first contingencies than a legal estate. There is then no reason for deflecting the words from their ordinary meaning.
At January term 1830, the case of Finlay v. King's Lessee came before this Court on a writ of error to the District Court of the United States for the Western District of Virginia, 28 U. S. 3 Pet. 346. That was an action of ejectment, and the question involved and decided by this Court in it was as to the construction of the will of William King, deceased, formerly of Abingdon, Virginia. The suit was instituted against the present appellees to recover a part of the real estate of the testator, William King, which the defendants claimed as two of the co-heirs of the testator, and on which they had entered with the consent of all the co-heirs for the purpose of trying the title of the plaintiff, now appellant, as devisee under the will. In that action, judgment for the land in controversy, was given by the district court in favor of the plaintiff on a case stated.
On the removal of the case to this Court, the judgment of the district court was affirmed and the Court held that all the real estate of William King, deceased, is devised to William King, the appellant, but the possession of part of it, which is given to his wife and others, is postponed until her death. The court also proceeded to say, that
"The question whether William King took an estate which, in all the events that had happened, enures to his benefit, or whether he is, in the existing state of things, to be considered 'trustee' for the heirs of the testator, could not be decided in that case. That question belongs to a court of chancery, and will be determined when the heirs shall bring a bill to enforce the execution of the trust."
3 Pet. 28 U. S. 383.
The appellees, as heirs at law of William King deceased, in September 1830, filed a bill in the District Court of Western Virginia against the appellant, William King, in which they alleged that the estate so devised was held by the appellant, William King, as a mere trustee, holding the beneficial interest for the testator's heirs at law, and they pray that the said William King may be compelled to execute the trust confided to him by the said will in such manner as the court may think proper; that the proceedings on the said judgment may be stayed until the case can be fully heard, and
that a perpetual injunction may be directed, and that such other and further relief in the premises may be given as their case may require and as may be consistent with the principles of equity.
The bill also prayed for an injunction to stay proceedings on the judgment in the ejectment.
The district court gave a decree, according to the requirements of the bill, and the defendant appealed to this Court.
The case agreed in the suit at law, and upon which the questions argued before the court in this case were presented, was as follows.
"We agree that William King departed this life on 8 October, 1808, having first made and published his last will and testament, which was afterwards admitted to record in the County Court of Washington County, in Virginia, where he resided, and is in the words and figures following: "
"Meditating on the uncertainty of human life, I, William King, have thought proper to make this my last will and testament, leaving and bequeathing my worldly estate in the manner following, to-wit: to my beloved wife, Mary, in addition to her legal dower of all my estate, the dwelling house and other buildings on lot number ten in Abingdon, where I now reside, together with the garden, orchard, and that part of my Fruit Hill plantation south of the great road, and lands adjacent to Abingdon, now rented to C. Finlay & Co., and, at my father's decease, including those in his occupancy on the north side of the great road, for her natural life."
"I also will and declare that in case my beloved wife, Mary, hath hereafter a child or children by me, that the said child or children is and are to be sole heirs of my whole estate, real and personal, excepting one-third part of specified legacies and appropriations hereinafter mentioned, which, in case of my having children, will reduce each legacy hereinafter mentioned to one-third part of the amount hereafter specified, and the disposition of the real estate, as hereafter mentioned, in that case wholly void. In case of having no children, I then leave and bequeath all my real estate at the death of my wife, to William King, son of brother James King, on condition of his marrying a daughter of William Trigg and my niece Rachel his wife, lately Rachel Finlay, in trust, for the eldest son or
issue of said marriage, and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trigg, that will marry a child of my brother James King, or of sister Elizabeth, wife of John Mitchell, and to their issue, and during the lifetime of my wife, it is my intention and request that William Trigg, James King, and her do carry on my business in co-partnership, both salt works and merchandising, and equal shares, and that in consideration of the use of my capital, they pay out of the same the following legacies: "
"To John Mitchell, on condition of his assisting and carrying on business with them at the usual salary as formerly, viz., one thousand dollars per year, for from two to five years, as they may wish his assistance, an additional sum of ten thousand dollars, payable five years after my decease, and to each of his children on coming of age one thousand dollars more than the general legacy hereafter mentioned. To Connally Finlay a like sum of ten thousand dollars payable in five years."
"To my nieces, Elizabeth Finlay and Elizabeth Mitchell (being called for my grandmother, with whom I was brought up) ten thousand dollars in twelve months after marriage, provided they are then eighteen years of age, if not, at the age of eighteen; to each of my other nephews and nieces at the age of eighteen, that is, children of my brother James, sisters Nancy and Elizabeth, one thousand dollars each; to each of the children of my brother Samuel, and half-sister Hannah, three hundred dollars each, as aforesaid; to my said sister Hannah, in two years after my decease, one thousand dollars; and to my half brother Samuel, in case of personal application to the manager at Saltville, or to my executors in Abingdon, on 1 January annually during his life, one hundred and fifty dollars; if not called for on said day, to be void for that year, and receipt to be personally given. It is my wish and request that my wife, William Trigg, and James King, or any two of them that shall concur in carrying on the business, should join with all the young men that may reside with me and be assisting me in my decease, that are worthy, or furnish them with four or five thousand dollars worth of goods, at a reasonable advance, on a credit of from three to
five years, taking bonds with interest, from one year after supply. In case my brother James should prefer continuing partnership with Charles S. Carson, in place of closing the business of King, Carson & King as soon as legal and convenient, then my will is that William Trigg and my wife carry on the business, one-third of each for their own account, and the remaining third to be equally divided between the children of my brother James and sisters Nancy and Elizabeth. To my father Thomas King I leave, during his life the houses he now resides in and occupies, at Fruit Hill, together with that part of my land, in said tract north of the great road, that he chooses to farm, with what fruit he may want from the orchard; the spring house, being intended for a wash house, with the appurtenances, subject to the direction of my beloved wife, Mary, as also the orchard, except as aforesaid. I also leave and bequeath to my father the sum of two hundred dollars per annum during his life, and if accidentally fire should destroy his Fincastle house and buildings, a further sum of two hundred and twenty dollars per annum, while his income from these would cease. I also leave and bequeath to the Abingdon Academy the sum of ten thousand dollars, payable to the trustees in the year one thousand eight hundred and sixteen, or lands to that amount, to be vested in said academy, with the interest or rents thereon forever."
"Abingdon, Virginia, 3 March, 1806."
"I hereby appoint William Trigg, of Abingdon, and James King, of Nashville, executors of my last will and testament enclosed; written by my own hand, and signed, this 3 March, 1805."
"We agree that William King, at the time of his death, was seized and possessed of seventy-six tracts of land in the said County of Washington, containing, in the whole, nineteen thousand four hundred and seventy-three acres of land, on one of which tracts is the salt works, which have, since his death, been leased for years at the annual rent of thirty thousand dollars. Also, of nineteen lots in the Town of Abingdon, in Washington County, nine of which produced an annual rent of six hundred and sixty dollars. Also, of fourteen tracts of
land in the County of Wythe, containing three thousand four hundred and ninety-four and a half acres. Also of eighteen tracts of land in the State of Tennessee containing, in the whole, ten thousand eight hundred and eighty acres. Also of shares in town lots in several of the towns in the State of Tennessee. We also agree that the said William King survived his father, in the said will mentioned; that the said William King had brothers and sisters, to-wit, James King, a brother of the whole blood; Nancy, a sister of the whole blood, the wife of Connally Finlay, in the will mentioned; Samuel King, a brother of the half blood; Hannah, a sister of the half blood, the wife of John Allen; all of which brothers and sisters, before named survived the said William King. That another sister of the said William King of the whole blood, died before him, and was named Elizabeth, the wife of John Mitchell, who is mentioned in the will. We agree that William King, the lessor of the plaintiff, is the same William King, the son of James King, brother of the testator, mentioned by him in the will."
"We further agree that William Trigg, in the will mentioned, departed this life on 4 August, 1813, leaving Rachel Trigg, in the will mentioned, his widow, and four sons, the said Rachel having borne them to the said William, and not having borne any daughter to him, the said William Trigg, at any time, which said sons are all living. That Mary, who was the wife of the said William King, is still living, aged forty-three years, and is now the wife of Francis Smith. We further agree that William King, the lessor of the plaintiff, is married to Sarah Behum; that James King had only one daughter, named Rachel Mary Eliza, who is now the wife of Alexander McCall, and that Elizabeth, the wife of John Mitchell, had only two daughters, to-wit, Elizabeth, who is now the wife of William Heiskell, and Polly, who is now the wife of Abraham B. Trigg. We agree that William King, the testator, died seized and possessed of the house and lot in the declaration mentioned. We agree the lease, entry, and ouster, in the declaration supposed, and that the defendants are in possession of the house and lot in the declaration mentioned. If, upon this state of facts, the lessor of the plaintiff ought to recover at this time, we agree that judgment shall be entered for him, and that if the court shall be of opinion that he
ought not to recover until after the death of Mary, the wife of Francis Smith; or that he ought not at any time to recover, judgment shall be entered in favor of the defendants. "