Luther v. Haile

10 R.I. 291

• Court: Supreme Court of Rhode Island
• Decided: September 6, 1872
• Status: Published

Opinion

Potteb, J.

It appears that August 14, 1860, Daniel B. Lutber and bis wife Polly agreed to a separation. A deed of separation containing several covenants was executed, with James C. Blake as trustee, and by another instrument Lutber conveyed certain real property to said “ Blake, bis executors, and administrators,” in trust, for said “ Polly Lutber, her heirs, executors, administrators, and assigns, and for her and their use and behoof forever.” Separate conveyances of bank stock and furniture were made to tbe same effect. Tbe said Polly made a will in 1864, giving this real property to her daughter Harriet, now wife of tbe defendant, and directing said trustee to convey to her, and died in 1868. In 1869, Blake conveyed tbe real estate back to Daniel B. Luther, the plaintiff, who now sues in ejectment to recover it of the defendant, the present occupant.

What estate did Blake, the trustee, take under this deed ? Was the legal estate in him, or was the use executed in said Polly ? We think that in construing the deed of land, we are to. take it in connection with the deed of separation which was executed at the same time and refers to it. The trustee engages to indemnify and hold said Luther harmless from all liability for the debts of said Polly or her daughter; and he is liable for the fulfilment of the covenants in the deed of separation. Pie must have a sufficient interest in and control over the estate, to carry out that purpose. The trust, too, is for a married person, and expressed to be for her separate use, and this is an additional reason for holding that it is not executed in her. 1 Greenleaf’s Cruise, *885, and cases. And we consider, therefore, that during her life, or until she conveys, the trust is not to be deemed a use or trust executed, or a mere dry trust, but that the legal estate was vested in the trustee.

The trustee taking the legal estate on the death of Mrs. Luther, without having disposed of it by deed during life, the necessity for the trustee having the control having ceased, it would either become a dry or passive trust, in which case the nominal legal estate would still be in the trustee, an estate which indeed he might convey, but of which a court of equity would compel a conveyance to the cestuis que trust; or 2d, the trust may be considered as executed in the cestuis as soon as the necessity for its being an active trust ceases, viz., on her conveyance or death.

We consider the latter view as the correct one, and as supported by the authorities. See Hill on Trustees, *239, *242; 1 Greenleaf’s Cruise, 385, §§ 19, 30.

“ In the case of a devise to trustees for particular purposes, the courts will consider the legal estate as vested in the trustees as long as the execution of the trusts require it, and no longer; and will therefore, as soon as the trusts are satisfied, consider the legal estate as vested in the persons who are beneficially entitled to. it.” 1 Greenleaf’s Cruise, 338, § 29.

The case of Jones v. Lord Say and Seal is generally referred to as the first case where this was laid down. 1 Eq. Cas. Abr. 383; 3 Bro. P. C. 458. This case has been criticised in some English cases, and also by Chancellor Harper in Ex parte Gadsden, 3 Rich. 468. Lord Kenyon, in Harton v. Harton, 7 T. R. 648, says the best report of this case is in 8 Viner’s Abr. 262; and quite a full report of it is given in Eearne' on Cont. Rem. *52. It was here decided that the estate was in the trustees for the life of a feme covert, and was then executed in the heirs of her body.

Prom the report in Eq. Cas. Abr. it would seem doubtful if the case turned on this point. And some of the other cases often cited have turned on the point whether a fee or fee tail was conveyed under the rule in Shelley’s case.

In Harton v. Harton, 7 T. R. 648, 650, decided on different grounds, Lawrence, J., states the case of Jones v. Lord Say and Seal as deciding the point that the trustees held the estate during the life of the feme covert, but the use was on her death executed in the persons entitled to it. Lord Kenyon mentions it as a case by itself, but says that it was recognized by Lord Hardwicke as law in Bagshaw v. Spencer, 1 Ves. 144.

In Brown v. Whiteway, 8 Hare, 145, 156, Vice Chancellor Wigram, while following Harton v. Harton, 7 T. R. 648, as applicable to the case before him, said: “ I do not see why in that case it was necessary to hold that the intermediate estates should not be good legal estates.”

In the case of Tucker v. Johnson, 16 Sim. 341, the trust was to A. B. and heirs to the use of a son for life, remainder in trust to apply rents to support son’s children during minority, and then to the use of them, their heirs, &c. It was held that the son took the legal estate for life, that the trustees then took a chattel interest during the minority, and that the remainder went tp the son’s children in fee.

In Doe, &c. v. Barthrop, 5 Taunt. 382 (a. d. 1814), devise to trustees and heirs to permit woman to hold to separate use for life, and then to use of her appointees by will, &c. The court held that “ in this case the trust is sufficiently executed by limiting to the trustees a base fee determinable with the life of M. A. S. The legal estate, therefore, goes over from them when that estate determines.”

In Williman v. Holmes, 4 Rich. Eq. 475, devise to trustees in fee for married daughter for life, then for her husband for life, and then to the use of her appointees by will, and in default thereof to testator’s heir at law. Held, that the trustees took the legal estate for the lives, and then the statute executed the estate in reversion or remainder, subject to be divested by the appointment. “ After the execution of the trusts the title passes away from them silently and by operation of law.” Ibid. 479. And see Law v. Wilson, 2 T. R. 444; Robinson v. Grey, 9 East, 1; Pearce v. McCleraghan, 5 Rich. 178, 187.

Ex parte Gadsden, a. d. 1829, 3 Rich. 467. This was a case in chancery. The trusts in this case were held not executed. Harper, Chancellor, comments on the case of Jones v. Lord Say and Seal, and other cases, and states the rule thus: “ If the gift to the trustee be general, without words of limitation or inheritance, he will be construed to take a chattel interest, a life estate, or a fee, as the purposes of the trust appear to require. But if it be to him and his heirs (provided any estate at all is executed in the trustee) this imports a fee ; though these words may be restrained by other circumstances in the deed or will, which show that the donor or devisor contemplated that the estate should be executed in some subsequent taker, or after some event, or which are inconsistent with the notion of the fee continuing in the trustee.”

In Doe, &c. v. Nicoll, 1 B. & C. 336, Bayley, J: “ It may be laid down as a general rule that where an estate is devised to trustees for particular purposes, the legal estate is vested in them as long as the execution of the trust requires it, and no longer; and therefore, as soon as the trusts are satisfied, it will vest in the person beneficially entitled to it.” And in Doe, &c. v. Edlin, 4 A. & E. 582, Lord Denman says: “T admit that for a great number of years past the courts have held that trustees take that quantity of interest which the purposes of the trust require; and the question is not whether the maker of the instrument has used words of limitation or expressions adequate to convey an estate of inheritance, but whether the exigencies of the trust require a fee, or can be satisfied by a less estate.” And the latter construction has been put upon various wills, “ though in some of them the testator has used words of limitation, or which of themselves alone, if not coupled with other expressions, would seem to carry an estate of inheritance.”

In Doe, &c. v. Davies, 1 A. & E. N. S. 430, Lord Denman says he does not intend to throw doubt upon the cases relating to the determination of trust estates, but the language of some of them goes too far when they hold the trust ceases on the performance of the trusts in whatever terms the devise is framed; that Holroyd, J., said rightly, that where there are no words in the will which give the trustees any estate beyond the time during which the trust is to be performed, then the case falls within the general rule, that a trust estate is not to continue beyond the period required by the purposes of the trust; and in conclusion he holds that the rule should be narrowed down to cases where it is consistent with the words of the instrument and the apparent intention of the maker, — referring to Doe v. Edlin, 4 A. & E. 582, 589, and Doe v. Ewart, 7 A. & E. 686, 666.

Considering therefore the rule to be well settled, and that in this case the trust must be considered as executed in the next taker after the death of the wife, the deed from Blake the trustee conveyed nothing to the plaintiff, and he cannot maintain the action of ejectment. Judgment for defendant.