Hiserodt v. Hamlett

74 Miss. 37

• Court: Mississippi Supreme Court
• Decided: March 15, 1896
• Status: Published

Opinion

Whitfield, J.,

delivered the opinion of the court.

The bill is filed by appellant in his character as administrator alone. No just construction can make of it anything else. If, therefore, it were proper to file a bill in that capacity, and, also, at the same time, in his capacity as creditor seeking to set aside the parol trust as fraudulent against creditors, he has not here done so, and we must treat it as a bill by the administrator alone. Nor does it make any difference, in this view, that the bill avers the insolvency of his intestate. Blake v. Blake, 53 Miss., 182, is decisive in this view. We are satisfied, after the most careful consideration, that the fair result of the testimony, taken as a whole, is that Smitha created a valid parol trust by what he said and did at the time of the delivery to Hamlett of the policy; and, if so, the fact that he reserved the power of revoking the trust thus once perfectly created and constituted, upon a contingency to happen in his lifetime, would not defeat the trust if he did not in fact revoke it, the contingency not happening in his lifetime. We must not allow ourselves to be confused by the fact that the event upon the happening of which the interest was to be enjoyed, the trust was to be executed, was death. It is as competent for one to make the event in the future upon the happening of which the estate is to come into possession, and the trust is to be executed, the death of the donor, as any other event. The fact, in such case, that the event named is death, rather than some other selected event, is not at all determinative of the quality or legal character of the trust. It is a mere time when the trust, completely and perfectly constituted theretofore, is, as to the estate already thus vested in interest by it in the trustee, for the beneficiaries, to come into possession — to be enjoyed. Here Smitha, at the time of the delivery of the policy to Hamlett, directed him, in case anything happened— in case, as otherwise put, of his death — to divide the surplus over his debt, secured by the assignment — a wholly separate matter — share and share alike, between his wife and child. The phrase, “in case of his death,” did not have the legal effect of preventing the trust from taking effect in prcesenti, to be enjoyed in futv/ro. The trust was then perfectly constituted. The estate in interest in the surplus then, in his lifetime — at the time of such creation — vested in prmenti in the trustee, Hamlett, for the beneficiaries. Hamlett was by it then clothed by the law, applied to the transaction thus consummated, with the duties and responsibilities of a trustee, and the beneficiaries with the right to the estate, subject to Smitha’s right of revocation, if exercised according to the terms of the trust as declared. There is no testamentary feature here. “No testament is of any force while the testator liveth.” It is ambulatory wholly. It vests no present interest, absolute or conditional, subject to revocation or not. It is waste paper till death vitalizes it, whereas a revocable trust is vital till revoked. A completely constituted parol trust of personalty is not ambulatory at all, as to the present vesting of interest — • subject to revocation, or not so subject. It is vitalized by what is done then, at the time of its constitution by the donor, and is as effectual thenceforward, even when subject to revocation, until duly revoked, as any other disposition of property, and to be administered according to the legal character stamped upon it at the time of its creation. One may do what he will, within legal limits, with his own. He may declare a trust absolute, never thereafter having, in anywise, the right to interfere with it, or he may declare a trust revocable upon a named contingency.

In the former case the beneficiaries take absolutely; in the other, upon the condition that the revocation does not follow upon the happening of the contingency. If no such revocation follows, their rights are perfect. But, in the latter case, as completely as in the former, the estate or interest vests in prcesenti in the one case, never to be defeated; in the other, subject to defeasance in the manner indicated in the trust.

In our own state, the case of Wall v. Wall, 30 Miss., 91, perfectly establishes this distinction. There the instrument was retained by the grantor in his custody until his death, and he stated that the acknowledgment and delivery of the instrument .and placing it among his (the grantor’s) papers, was intended by him as a delivery of said paper at his death, and it was earnestly contended that it was a testamentary disposition, and void. But the court said: “The determination of the legal character of instruments of this kind depends mainly upon the question whether the maker intended to convey any estate or interest to vest before his death, and upon the execution of the paper, or . whether all interest and estate whatever were to take effect only after his death. But its character [the character of the instrument there] must be determined upon a consideration df all its parts, comparing one part with another, in order to ascertain the purpose which the party had in view, and the mode by which he intended to accomplish it.” Just as here, the whole evidence (not isolated fragments of it) must be looked to, comparing part with part. The court concludes: “Upon the whole, we consider that this deed conveyed the present right to the property, to be enjoyed in possession at the donor’s death, and subject to his power to annul it in the way limited in the deed. This was a substantial right in the donees, which excluded the general power of alienation by the donor, and of revocation in any other mode than that prescribed in the deed. And in this consists the difference between such conveyance and a will; that, by the former, a present interest vests, which will take place in possession in futuro, unless defeated in the mode, and according to the terms, specified in the conveyance; and, in the latter, no right, estate or interest whatever vests until the death of the testator. In the one case the conveyance takes effect in prmsenti, to a certain extent; in the other, it has no effect whatever until the death of the testator. ’ ’ And the correctness of this distinction is abundantly sustained', with great clearness of reasoning, in many authorities. Out of many we refer specially to the masterly opinion of Finch, J. (one of the ablest judges gracing the bench in this country), in Van Cott v. Prentice, 104 N. Y., 45; Lines v. Lines, 142 Pa. St., 149, s.c. 24 Am. St. Rep., 487; Dickerson's appeal, 2 Am. St. Rep., 547, and Stone v. Hackett, 12 Gray (Mass.), 227 (opinion by Bigelow, J.), all directly in point. See, also, the numerous authorities cited in 27 Am. & Eng. Enc. L. (1st ed.), 310 et seq.

The first cited case is a very striking one, and upholds a trust on far less conclusive evidence than supports the trust at bar. That case was this: ‘ ‘ P, by an instrument termed by him therein his deed of trust, ’ transferred to plaintiff certain securities and funds, in trust, to invest and collect the income thereon during the life of P, to pay over the income to K, to be by him appropriated for the use of four beneficiaries named, and, at the death of P, the principal to be disposed of in accordance with instructions contained in a writing sealed up and delivered with the instrument, with directions that it should not be opened until such death. A full power of revocation was reserved, and it was provided, as a condition of the grant, that the beneficiaries should have no legal or equitable right to the principal or income; that the trustee should hold, subject to the grantor’s direction and control, until his death. It was also declared that if any attempt should be made to interfere with the execution of the trust, or to claim the securities contrary to the conditions of the instrument, the trust should at once cease and determine. In an action to recover possession of the securities, which had come into the hands of defendants (the executors of the will of P), it was held that a valid trust was fully and completely constituted, and, as the same was not revoked by the settler during his life, the trustee was entitled to the possession of the trust property; that it was immaterial that the grant was voluntary and without consideration [no creditor’s rights being there involved, as none are here involved on the present record]; that the declaration that the beneficiaries should have no legal or equitable right was not intended as a denial of an equitable right to enforce the trust as against the trustee, while the settlement remained unrevoked, but only as a denial of any right as against the settler; also, that the validity of the title of the trustee was not affected by the fact that he held subject to the control and direction of P; that, while the trust continued and existed only at the will of the settler, it was good and effectual until revoked ” — the court significantly observing: “We ought not to put the creator of this trust in the attitude of deliberately nullifying his own evident purpose. That he meant to create an effective trust is beyond all question, and a construction which makes him destroy in the very effort to create, should not prevail if there be any other rational interpretation. . . . The trustee is directed to hold the fund and invest and reinvest and pay over as ordered, but is to do all this subject to the settler’s absolute control. ,This cannot mean that the trustee is to have no title, and the trust no effective existence, and the property remain the settler’s, but that the trust and the title, good and effectual while it stands, is, nevertheless, to continue and exist only at the will and pleasure of the settler. Its continued existence was to be absolutely subject to the direction and control of Prentice — a result always inevitable when a power of revocation is reserved. We discover nothing in the provisions of the deed, properly construed, inconsistent with a completely constituted trust, wholly voluntary and benevolent, and subject to revocation by the settler at any moment; a kind of trust of which the books furnish many instances, and which, indeed, are sometimes subject to' doubt and suspicion, if the power of revocation is absent.”

In Lines v. Lines, supra, the court say: “The power of revocation reserved in the deed, having never been exercised, was precisely as if it had never existed. If the right is not exercised during the lifetime of the donor, and according to the terms in which it is reserved, the validity of the trust remains unaffected, as though there had never been a reserved right of revocation.” Says Bigelow, J., in Stone v. Hackett, supra: ‘ ‘A power of revocation is perfectly consistent with the creation of a valid trust: It does not, in any degree, affect the legal title to the property. That passes to the donee, and remains vested for the purposes of the trust, notwithstanding the existence of the right to revoke it. ’ ’ See, also, 1 Perry, Trust, § 104, bottom of page 103. In Dickerson’s appeal, supra, the grantor was also himself the trustee.

It is insisted that Hamlett’s statement, on cross-examination, that, had Smitha paid him, he would have delivered the policy back to Smitha, is fatal to this view. But whether the trust was completely constituted by what Smitha said or did at the time of the delivery of the policy to Hamlett, is not to be determined by any mistaken notion of Hamlett as to whether it was so constituted a trust, but by the legal character, as a trust or not, which the law stamped on the transaction, when and as it occurred. And, if it were true that the power of revocation was to be exercised by demanding from Hamlett and receiving back the policy — if that were to be the precise mode of the exercise of the power of revocation — the complete answer is that the power to revoke was, in fact, never so exercised. We do not deal here with the rights of creditors. We only add that Coates v. Worthy, 72 Miss., 575, did not decide that the proceeds of the policy in that case would have been exempt as against a debt contracted pripr to the act of April 1, 1892, the assured being insolvent. The argument pressed upon us in that case, which went off on a demurrer to the bill, was that § 1552 of code of 1892 made the proceeds there liable, there being no widow or child. We say thus much, however, as to this case, simply to prevent misconception, as to Coates v. Worthy, supra, and not as indicating any view as to what we would hold on that feature in this case, on its peculiar facts, even were a proper bill filed. The present decree is correct, and is

Affirmed.