Mr. Justice HUNT
delivered the opinion of the court.
The first question in this case is whether there was a de- • livery of the deed of August 13th, 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 materia] 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 prasentí
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’s statements are 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
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 j 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 ovérthrow 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.
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.
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.
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.
Although a trustee may never have heard of the deed, the title vests in him, subject to a disclaimer on his part.
Such disclaimer will not, however, defeat the conveyance a3 a transfer of the equitable interest to a third person.
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.
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,
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 w’hether the nature of the property be 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, wre 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, &e., the trust is not perfectly created unless the legal interest be actually vested in the trustee.”
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 ivas a completed provision for her, and that she was perfectly protected by it. He intended what he had doue 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,
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Mr. Justice HUNT
delivered the opinion of the court.
The first question in this case is whether there was a de- • livery of the deed of August 13th, 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 materia] 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 prasentí
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’s statements are 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
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 j 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 ovérthrow 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.
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.
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.
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.
Although a trustee may never have heard of the deed, the title vests in him, subject to a disclaimer on his part.
Such disclaimer will not, however, defeat the conveyance a3 a transfer of the equitable interest to a third person.
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.
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,
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 w’hether the nature of the property be 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, wre 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, &e., the trust is not perfectly created unless the legal interest be actually vested in the trustee.”
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 ivas a completed provision for her, and that she was perfectly protected by it. He intended what he had doue 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,
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 aré 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:
“ It would seem to follow from the foregoing decisions that the court will in no case interfere to enforce the performance of á 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
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 bo 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 áuthor 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,
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,
of
Boughton
v. Boughton,
and of
Johnson
v. Boyfield,
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 than the one now under consideration.”
In
Souverbye
v.
Arden,
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 says:
“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.
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
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.
The defence rests upon the alleged non-delivery by Mr. Adams of the deed of August 13th,
1861, to
Mrs. Adams, or for her beuefit.
We
have referred at length to the authorities which show that as matter of law the deed ivas 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.