1. When on a bill by a wife against her husband to establish a
deed of trust to a third party in her favor, and now in the
husband's possession, which deed she alleges that he executed and
delivered, the husband, in an answer responsive to her bill, denies
that he did deliver it, his denial comes to nothing if he admit in
the same answer certain facts, as,
ex gr., that he signed
and sealed it, acknowledged it before a proper magistrate, and put
it upon record -- facts which of themselves may, under the
circumstances of the case, constitute a delivery. In such a case,
he denies the law simply.
2. When husband and wife join in making a deed of property
belonging to him to a third party in trust for the wife, the fact
that such party was not in the least cognizant of what was done,
and never heard of nor saw
Page 88 U. S. 186
the deed until long afterwards, when he at once refused to
accept the trust or in any way to act in it, does not affect the
transaction as between the husband and wife.
3. A deed by husband and wife conveying by formal words
in
praesenti a portion of his real property in trust to a third
party for the wife's separate use, signed, sealed, and acknowledged
by both parties, all in form and put on record in the appropriate
office by the husband, and afterwards spoken of by him to her and
to other persons as a provision which he had made for her and her
children against accident, here sustained as such trust in her
favor, in the face of his answer that he never "delivered " the
deed, and that owing to the disturbed and revolutionary character
of the times (the rebellion then, August, 1861, apparently waxing
strong), and the threatened condition of the federal city and other
contingencies growing out of the war, he had caused the deed to be
made and
partially executed, so that upon short notice he
could deliver it and make it effectual, retaining in the meantime
the control of the title, and that he had himself put it on record,
and that it had never been out of his possession except for the
time necessary to have it recorded. This decision made, though the
person named in the deed as trustee never heard of the deed until
years afterwards, when he was called on by the wife, she being then
divorced from her husband, to assert the trust.
Adams, a government clerk, in Washington, owning a house and lot
there, on the 13th of August, 1861, executed, with his wife, a deed
of the premises to one Appleton, in fee, as trustee for the wife.
The deed by appropriate words
in praesenti conveyed, so
far as its terms were concerned, the property for the sole and
separate use of the wife for life, with power to lease and to take
the rents for her own use as if she was a
feme sole, the
trustee having power, on request of the wife, to sell and convey
the premises in fee and pay the proceeds to her or as she might
direct, and after her death (no sale having been made), the trust
being that the trustee should hold the property for the children of
the marriage as tenants in common, and in default of issue living
at the death of the wife, then for Adams, the husband, his heirs
and assigns.
The deed was signed by the grantors, and the husband
acknowledged it before two justices "to be his act and
Page 88 U. S. 187
deed." The wife did the same, being separately examined. The
instrument purported to be "signed, sealed, and delivered" in the
presence of the same justices, and they signed it as attesting
witnesses. The husband put it himself on record in the Registry of
Deeds for the County of Washington, D.C., which was the appropriate
place of record for it.
Subsequent to this -- that is to say in September, 1870 -- the
husband and wife were divorced by judicial decree.
And subsequently to this again -- that is to say in December,
1871 -- the husband being in possession of the deed and denying
that any trust was ever created and executed, and Appleton, on the
wife's request, declining to assert the trust or to act as trustee,
Mrs. Adams filed a bill in the court below against them both to
establish the deed as a settlement made upon her by her husband, to
compel a delivery of it to her, to remove Appleton, the trustee
named in it, and to have some suitable person appointed trustee in
his place.
The bill alleged the making of the indenture on the day of its
date, set forth the trusts as above given, appended a copy of it as
part of the bill, alleged the fact and place of record of the
original, and averred that the original indenture, after being duly
signed, sealed, acknowledged, and delivered by the parties thereto,
was recorded at the exclusive expense and express instance and
request of the husband, Adams, who afterwards, as the friend of the
complainant and the agent of Appleton, the trustee, obtained
possession of the original, which was still in his custody or under
his control.
The bill further alleged the dissolution of the marriage by law
and that the complainant, relying upon the provisions of the deed
referred to, neither sought nor obtained alimony in that suit, and
further that she had accepted and still accepted the benefits of
the trust; that Appleton declined to act as trustee, to allow the
use of his name, or in any way to aid her in the matter; that her
husband, the defendant, was in possession, receiving the rents and
profits, and declined to acknowledge her rights in the
premises.
Adams, the husband, after denying that the allegation of
Page 88 U. S. 188
the bill was true in manner and form as stated, answered as
follows:
"I admit that a certain indenture was made, but it never was
executed and delivered to the said Appleton, or to any other person
in his behalf, or to his use, either by myself or by any person
whatever. I never at any time intended to deliver said deed so as
to render it valid and effectual in law, but designedly retained
said deed in my own possession without any delivery whatever."
"I admit that I placed said deed on record in the Registry of
Deeds of the County of Washington, and it never has been not of my
possession except for the time it was necessary to be
recorded."
"I admit and aver the fact to be that, owing to the disturbed
and revolutionary character of the times and the threatened
condition of the City of Washington, and other contingencies
growing out of the state of war then existing, I caused said deed
to be made and partially executed, so that upon short notice, I
could deliver it and make it effectual, or make such other changes
of the title as I might think proper growing out of any changed
circumstances, retaining in the meantime the future control of the
title to the same; that said deed was not delivered to my then
wife, nor did I intend to make it a settlement upon her; that I
have kept and maintained possession of the premises, making in the
meantime extensive repairs and improvements upon the property,
paying the taxes and insurance, and collecting the rents issuing
from the same, and I most emphatically deny the existence of any
such trust as the plaintiff in her bill of complaint alleges to
exist and seeks the aid of this court to enforce."
Appleton also answered, alleging that if any such deed as
described was executed, it was executed without his knowledge or
consent; that no such deed was ever delivered to him, and that he
never accepted any trust imposed by it; that he was never informed
of the existence of the deed till 1870, when he was informed of it
by the complainant, and that he then declined to act as
trustee.
Mrs. Adams, the complainant, was examined as a witness. She
stated that the defendant told her that he wanted to
Page 88 U. S. 189
make over this house to her and her children, to be for their
sole and entire use while she lived and for the children after her
death. She stated further that she had entire confidence in her
husband, so much so that she never took the paper, but left it in
his possession, thinking that her interests were perfectly safe in
his hands; that she saw it frequently, and that there was nothing
to prevent her taking possession of it; that this deed was a
frequent subject of conversation between her husband and herself,
and that he always spoke of it as making the property over to her
during her lifetime, and to her children after her death, and that
the deed was always understood between them to be good and valid.
None of these statements was denied by Mr. Adams.
Testimony of the same character was given by other witnesses.
One (the brother of the complainant) testified that the defendant
told him emphatically that the house and lot were made over to the
complainant as her property as a provision for the support of
herself and children against accidents. This witness specified
three different occasions on which these statements were made,
giving the details of the conversations. The defendant made no
denial of these statements.
Another witness (a sister-in-law of the complainant) gave
testimony to the same purport, giving one conversation in detail.
No denial of her statements was made by the defendant.
There were no other witnesses. Neither of the defendants
testified.
The court below declared the trust valid and effective in equity
as between the parties, appointed a new trustee; required the
husband to deliver up the deed to the wife or to the new trustee,
and to deliver also to him possession of the premises described in
the deed of trust, and to account before the master for the rents
and profits of it which had accrued since the filing of the bill,
receiving credit for any payment made to the complainant in the
meantime, and to pay the complainant's costs of the suit.
From a decree accordingly, the husband appealed.
Page 88 U. S. 190
MR. JUSTICE HUNT delivered the opinion of the Court.
The first question in this case is whether there was a delivery
of the deed of August 13, 1861. If not a formal ceremonious
delivery, was there a transaction which, between such parties and
for such purposes as exist in the present case, the law deems to be
sufficient to create a title? The bill avers that the deed was
delivered by the parties and put on record in the way which it
states.
The answer is responsive to the allegations in the plaintiff's
bill that the deed, after being signed, sealed, and delivered, was
recorded at the request of the defendant, Adams, and at his
expense.
The burden is thus imposed upon the plaintiff of maintaining her
allegation by the proof required where a material allegation in the
bill is denied by the answer.
It is evident, however, that the apparent issues of fact and
seeming contradictions of statement become less marked by looking
at what the parties may suppose to constitute a delivery. That the
defendant signed and sealed the deed he admits. That with his wife,
the present plaintiff, he acknowledged its execution before two
justices of the peace, and that the deed thus acknowledged by him
not only purported by words
in praesenti to grant,
bargain, and convey the premises mentioned, but declared that the
same was signed, sealed, and delivered, and that this deed, with
these declarations in it, he himself put upon the record is not
denied. If these facts constitute a delivery under circumstances
like the present, then the defendant, when he denies that a
delivery was made, denies the law simply.
Mrs. Adams and two other witnesses were examined. None of Mrs.
Adams' statements is denied by Mr. Adams. He was as competent to
testify as she was. So, although time, place, and circumstances are
pointed out in the testimony of one of the other witnesses, the
defendant makes no denial of the statement; nor does he deny the
statement
Page 88 U. S. 191
of the other witness giving her conversation with him in detail
in which she says that he admitted the trust.
The deed corresponded substantially with the intention which
these witnesses state that Adams expressed. Should the property be
sold by the order of Mrs. Adams, the money received would be
subject to the same trusts as the land, to-wit, for the use of Mrs.
Adams during her lifetime and her children after her death. It
would not by such transmutation become the absolute property of
Mrs. Adams.
Upon the evidence before us, we have no doubt that the deed was
executed, acknowledged, and recorded by the defendant with the
intent to make provision for his wife and children; that he took
the deed into his own possession with the understanding and upon
the belief on his part that he had accomplished that purpose by
acknowledging and procuring the record of the deed, by showing the
same to his wife, informing her of its contents, and placing the
same in the house therein conveyed in a place equally accessible to
her and to himself.
The defendant now seeks to repudiate what he then intended, and
to overthrow what he then asserted and believed he had then
accomplished.
It may be conceded as a general rule that delivery is essential,
both in law and in equity, to the validity of a gift, whether of
real or personal estate. [
Footnote
1] What constitutes a delivery is a subject of great difference
of opinion, some cases holding that a parting with a deed, even for
the purpose of recording, is in itself a delivery. [
Footnote 2]
It may be conceded also to have been held many times that courts
of equity will not enforce a merely gratuitous gift or mere moral
obligation. [
Footnote 3]
These concessions do not, however, dispose of the present
case.
1st. We are of opinion that the refusal of Appleton in 1870 to
accept the deed or to act as trustee is not a controlling
circumstance.
Page 88 U. S. 192
Although a trustee may never have heard of the deed, the title
vests in him, subject to a disclaimer on his part. [
Footnote 4] Such disclaimer will not,
however, defeat the conveyance as a transfer of the equitable
interest to a third person. [
Footnote 5] A trust cannot fail for want of a trustee, or
by the refusal of all the trustees to accept the trust. The court
of chancery will appoint new trustees. [
Footnote 6]
The case turns, rather, upon the considerations next to be
suggested.
2d. By the transactions already detailed, and by the
declarations of Mr. Adams, already given, was there created a trust
which the parties benefited are entitled to have established by a
court of chancery?
Mr. Lewin, in his work on Trusts, [
Footnote 7] thus gives the rules on this subject:
"On a careful examination, the rule appears to be that whether
there was transmutation of possession or not, the trust will be
supported, provided it was in the first instance perfectly created.
. . . It is evident that a trust is not perfectly created where
there is a mere intention or voluntary agreement to establish a
trust, the settlor himself contemplating some further act for the
purpose of giving it completion. . . . If the settlor propose to
convert himself into a trustee, then the trust is perfectly created
and will be enforced so soon as the settlor has executed an express
declaration of trust, intended to be final and binding upon him,
and in this case it is immaterial whether the nature of the
property by legal or equitable. . . . Where the settlor purposes to
make a stranger the trustee, then, to ascertain whether a valid
trust has been created or not, we must take the following
distinctions: if the subject of the trust be a legal interest and
one capable of legal transmutation, as land, or chattels &c.,
the trust is not perfectly created unless the legal interest be
actually vested in the trustee. "
Page 88 U. S. 193
To these positions numerous authorities are cited by the learned
author.
In the case before us, the settlor contemplated no further act
to give completion to the deed. It was not an intention simply to
create a trust. He had done all that was needed. With his wife, he
signed and sealed the deed. With her, he acknowledged it before the
proper officers and himself caused it to be recorded in the
appropriate office. He retained it in his own possession, but where
it was equally under her dominion. He declared openly and
repeatedly to her and to her brothers and sisters that it was a
completed provision for her and that she was perfectly protected by
it. He intended what he had done to be final and binding upon him.
Using the name of his friend as trustee, he made the placing the
deed upon record and keeping the same under the control of his wife
as well as himself a delivery to the trustee for the account of all
concerned, [
Footnote 8] or he
intended to make himself a trustee by actions final and binding
upon himself.
Adopting the principles laid down by Mr. Lewin, the plaintiff
has established her case.
Mr. Hill, in his work on Trusts, lays down the rule in these
words in speaking of a voluntary disposition in trust:
"The fact that the deed remains in the possession of the party
by whom it is executed, and that it is not acted upon or is even
subsequently destroyed will not affect its validity unless there
are some other circumstances connected with the transaction which
would render it inequitable to enforce its performance."
To this he cites many authorities. After quoting many other
cases, the author adds: [
Footnote
9]
"It would seem to follow from the foregoing decisions that the
court will in no case interfere to enforce the performance of a
voluntary trust against its author if the legal interest in the
property be not transferred or acquired as part of the transaction
creating the trust. The doctrine of
Page 88 U. S. 194
the court however does not in fact appear to be so confined. If
a formal declaration of trust be made by the legal owner of the
property declaring himself in terms the trustee of that property
for a volunteer, or directing that it shall be held in trust for
the volunteer, the court will consider such a declaration as a
trust actually created and will act upon it as such."
The author says again:
"It will be seen that it is difficult to define with accuracy
the law affecting this subject. The writer conceives that he is
warranted in stating the following propositions to be the result of
the several decisions:"
1. Where the author of a trust is possessed of the legal
interest in the property, a clear declaration of trust contained in
or accompanying a deed or act which passes the legal estate will
create a perfect executed trust, and will be established against
its author and all subsequent volunteers claiming under him.
2. A clear declaration or direction by a party that the property
shall be held in trust for the objects of his bounty, though
unaccompanied by a deed or other act divesting himself of the legal
estate, is an executed trust, and will be enforced against the
party himself, or representatives, or next of kin after his
death.
Upon the principles laid down by this author, the plaintiff's
case is made out.
It will be necessary to refer to a few only of the American
authorities.
In
Bunn v. Winthrop, [
Footnote 10] which was the case of a voluntary trust
created in certain real estate in the City of New York, Chancellor
Kent says:
"The instrument is good as a voluntary settlement, though
retained by the grantor in his possession until his death. There
was no act of his at the time or subsequent to the execution of the
deed which denoted an intention contrary to the face of the deed.
The cases of
Clavering v. Clavering, [
Footnote 11]
Page 88 U. S. 195
of
Boughton v. Boughton, [
Footnote 12] and of
Johnson v. Boyfield,
[
Footnote 13] I had occasion
lately to consider in the case of
Souverbye v. Arden, and
they will be found to be authorities in favor of the validity and
operation of deeds of settlement, though retained by the grantor
under circumstances much less favorable to their effect that the
one now under consideration."
In
Souverbye v. Arden, [
Footnote 14] which was a bill against the father to
enforce a voluntary settlement of real estate upon the daughter,
made by the father and by the mother, then deceased, the same
learned judge said:
"If we recur to the adjudged cases and the acknowledged rules of
law on this subject, they will be found in favor of the valid
operation of this deed, whether the actual delivery was to the
plaintiff or to her mother (the mother being one of the grantors).
This is much stronger, and attended with more circumstances of a
due delivery, than
Shelton's Case. [
Footnote 15] In that case, a deed was sealed in
the presence of the grantee and others and was read, but not
delivered, nor did the grantee take it, but it was left behind in
the same place, and yet in the opinion of all the justices it was a
good grant, for the parties came together for that purpose and
performed all that was requisite for perfecting it except an actual
delivery; being left behind, and not countermanded, it was held to
be a delivery in law. In the ancient authorities, and at a time
when the execution of deeds was subjected to great formality and
strictness, it was admitted that if A. execute a deed to B. and
deliver it to C., though he does not say to the use of B., yet it
is a good delivery to B. if he accepts of it and it shall be
intended that C. took the deed for him as his servant. . . . A
voluntary settlement, fairly made, is always binding in equity upon
the grantor unless there be clear and decisive proof that he never
parted nor intended to part with the possession of the deed, and
even if he retains it, the weight of authority is decidedly in
favor of its validity unless there be other circumstances beside
the mere
Page 88 U. S. 196
fact of his retaining it, to show it was not intended to be
absolute. This will appear from an examination of a few of the
strongest cases on each side of the question."
He then goes into an examination of the decided cases, for which
it is only necessary to refer to the case itself. [
Footnote 16]
The defense rests upon the alleged nondelivery by Mr. Adams of
the deed of August 13, 1861, to Mrs. Adams or for her benefit. We
have referred at length to the authorities which show that as
matter of law the deed was sufficiently delivered and that it is
the duty of the court to establish the trust.
We think that the decree of the court below was well made, and
that it should be
Affirmed.
[
Footnote 1]
12 Vesey 39 and note,
Antrobus v. Smith.
[
Footnote 2]
Cloud v. Calhoun, 10 Richardson's Equity 362.
[
Footnote 3]
3
ib.
[
Footnote 4]
Cloud v. Calhoun, 10 Richardson's Equity 362.
[
Footnote 5]
Lewin on Trusts 152;
King v. Donnelly, 5 Paige 46.
[
Footnote 6]
id.
[
Footnote 7]
Page 55, 4th edition, 1861.
[
Footnote 8]
Cloud v. Calhoun, 10 Richardson's Equity 362.
[
Footnote 9]
P. 136.
[
Footnote 10]
1 Johnson's Chancery 329.
[
Footnote 11]
2 Vernon 473; 1 Brown's Parliamentary Cases 122.
[
Footnote 12]
1 Atkyns 625.
[
Footnote 13]
1 Vesey Jr. 314.
[
Footnote 14]
1 Johnson's Chancery 255.
[
Footnote 15]
Croke Eliz. 7.
[
Footnote 16]
That the deed in question created a trust, executed and
complete, which will be enforced by the courts,
See also Neves v.
Scott, 9 How. 196;
Same
Case, 13 How. 271.
