Massey v. Huntington

7 N.E. 269, 118 Ill. 80

• Court: Illinois Supreme Court
• Decided: June 12, 1886
• Status: Published

Opinions

Mr. Justice Ceaig

delivered the opinion of the Court:

This was a bill in equity, brought by Fanny H. Rexford, to set aside a deed, bill of sale, and a declaration in trust, executed by the complainant, and Heber S. Rexford, Jr., her husband, to H. H. Massey, trustee, and Ephraim H. Dennison, successor in trust. The three papers were executed on the 14th day of February, 1882. The deéd, for an. expressed consideration of one dollar and love and affection, and other good and valuable considerations, purported to> convey five acres of land in Cook county, which was then owned by Heber S. Rexford, Jr. By the bill of sale, upon a, like consideration, Heber S. and Fanny H. Rexford granted, bargained, sold and delivered to Massey, trustee, and Dennison, bis successor in trust, a promissory note for $100, and an open account for $2191.21, against Norman Bexford; also, one certificate of insurance, (No. 25,962,) in the Lumberman’s Lodge No. 1815, of Knights of Honor, for the sum of $2000, bearing date the 11th day of February, 1882, on the life of the said Heber S. Bexford, Jr., and payable at his death; also, one policy of insurance issued by the Connecticut Mutual Life Insurance Company, numbered 134,395, on the life of the said Heber S. Bexford, Jr., for the sum of $1000, on the ten year plan, dated May 13, A. D. 1875, and payable at his death.

The declaration of trust provided that “the above conveyance of the real estate therein described, and the above bill of sale of the personal property therein described, are respectively made, executed and delivered by the undersigned, Heber' S. Bexford, Jr., and Fanny H. Bexford, his wife, to the said Henry H. Massey, or his successor in trust, for the following uses and purposes, to-wit: To hold the personal property with power to sell, to lease or incumber the real estate, and—

“First—To pay all necessary expenses, including reasonable compensation for said trustee’s services attending the management of the property above conveyed, and the execution of the trust herein created.

“Second—To pay to the said Heber S. Bexford, Jr., during his life, the sum of forty dollars ($40) per month, and such other amount as he may deem necessary from time to time, for the comfortable maintenance and support of the said Heber S. Bexford, Jr., and Fanny H. Bexford, his wife; and in case of the death of said Heber S. Bexford, Jr., before the death of the said Fanny H. Bexford, his wife, then and in that case the said Henry H. Massey, or his successor in trust, shall pay to the said Fanny IT. Bexford, during her life, the sum of forty dollars ($40) per month, and from time to time such other sums as he may deem necessary for the comfortable support and maintenance of the said Fanny H. Bexford; and all the rest and residue of such proceeds as aforesaid, and any or all of said personal property described in above bill of sale as may remain in the hands of the said Henry H. Massey, or his successor in trust, at the death of the said Heber 8. Rexford, Jr., should he survive the said Fanny H. Rexford, or at the death of the said Fanny H. Rexford, if she should survive the said Heber S. Rexford, Jr., the said Henry H. Massey, or his successor in trust, shall pay over and deliver the same to the following named persons, to-wit: Two hundred and fifty dollars ($250) to be paid to Mrs. Maria D. Huntington, of Blue Island, Cook county, Illinois, mother of Fanny H. Rexford, if she should survive the said Heber S. Rexford, Jr., and Fanny H. Rexford; if she should not survive the said Heber 8. Rexford, Jr., and Fanny H. Rexford, then and in that event the said sum of two hundred and fifty dollars ($250) shall be divided, with the rest, residue and remainder of the estate, as follows: One-quarter (J) thereof to Julia Rexford, mother of said Heber 8. Rexford, Jr., one-quarter (J) thereof to F. D. Rexford, of Centralia, Illinois, one-quarter (¿) thereof to Norman B. Rexford, of Blue Island, Cook county, Illinois, and the remaining one-quarter thereof to Mrs. C. Caroline Massey, wife of said Henry H. Massey, of Blue Island, Cook county, Illinois, or to their or each of their administrators, executors or assigns, and the said Henry H. Massey, or his successor in trust, shall, from the execution and delivery of this instrument, hold the legal title of said real estate above conveyed to him, subject to the other trust herein set forth, in trust for said Julia Rexford, F. D. Rexford, Norman B. Rexford and C. Caroline Massey, share and share alike, and at the time of the distribution of any remainder of said personal property, or the proceeds thereof, and the rentals and incumbrances aforesaid, as above set forth, the said Henry H. Massey, or his successor in trust, shall make, execute and deliver to the said Julia Rexford, F. D. Rexford, Norman B. Rexford and C. Caroline Massey, or their or each of their heirs, legatees or assigns, good and sufficient de.ed or deeds to convey the legal title of said real estate to them, whereupon this trust shall cease and be determined. ”

The deed, bill of sale and declaration of trust were acknowledged before a notary public on the day of their date, and delivered to the trustee, Massey, who filed them for record in the recorder’s office of Cook county on the 13th day of May, 1882. Heber S. Bexford, Jr., died intestate on the 12th day of May, 1882, leaving a widow, Fanny H. Bexford, but no child or children, or descendants of any child. On the 5th day of September, 1882, the widow filed this bill to set aside the deed, bill of sale, and declaration of trust, on the ground of undue influence, the bill charging that the papers were executed without consideration, and that the complainant was overreached in the execution thereof. It is also charged in the bill that the papers executed were intended as a testamentary disposition of the property, and hence not binding on the complainant. The complainant, Fanny H. Bexford, died October 27, 1882. Previous to her death she made a will devising all her estate to Bessie B. Huntington, her sister, who was substituted as a party complainant in the bill.

As respects the execution of the papers by Heber S. Bexford, it is apparent, from the evidence, that they were executed after mature deliberation, and with a full understanding of their terms, conditions, and the manner in which they would affect his rights and also the rights of his wife. He and his wife were both in the last stages of consumption, and his desire no doubt was, to make such a disposition of his property as would afford a reasonable support for himself and wife while living, and after their death have the remainder pass into the hands of his own relatives. While on a visit with a brother, at Centraba, in January, 1882, he requested his brother to consult a lawyer as to the best mode of disposing of his property. It seems that Bexford’s brother, after a consultation, informed him that the lawyer advised that a will might be defeated by an election of the widow, but that the matter might be arranged in the shape of a trust. Soon •after this, Bexford returned to Cook county, and in an interview with Massey obtained his consent to act as trustee, and •sent Massey with a memorandum to Judge Wallace, to have the papers prepared. Wallace desired further information, which was obtained from Bexford, and within a few days the papers were prepared, and placed in the hands of Bexford and his wife for execution, and were executed and acknowledged, •as stated before. So far as appears, there was no haste in the preparation or execution of the papers, but mature deliberation characterized the whole transaction.

But it is said that Fanny H. Bexford, the wife, had not "understood the nature of the papers, and they were a fraud upon her rights. She never testified in the case, and what might have been her account of the transaction had she been •called upon as a witness, is mere conjecture. The evidence of the notary public before whom they acknowledged the, papers is in the record. He stated that the papers were acknowledged on the evening of February 14, 1882, at the house of Mrs. Sammons. He also testified: “When I got there I had •■a little conversation before taking the acknowledgment; then I took the paper and asked Heber and Fanny Bexford if these were their signatures,—if they were their free and voluntary •■act and deed for the purposes set forth in the deed. Heber and Fanny were sitting right near together, and Heber said, * Yes,’ and Fanny gave an affirmative nod of her head in each •of the three acknowledgments. ” The three papers had been signed by Bexford and his wife before the notary called, and the presumption is, that they had read them and understood the contents, and if reliance is to be placed on the evidence ■of the notary, and we perceive no reason to question it, Fanny H. Bexford freely and voluntarily executed tfye three papers, with a full knowledge of their contents and bearing on her nights.

The complainant, Bessie B. Huntington, sole devisee of Fanny Bexford, testified to a certain .conversation between Massey, the trustee, and Mrs. Bexford, which occurred after the death of her husband, and reliance is placed upon this evidence to show that Fanny Bexford was misled in the execution of the papers. She testified that her sister, Mrs. Bexford, called on Massey for money to furnish a- room, and he told her he had no money for that purpose, when Mrs. Bexford said it was not at all as she had understood it when she had signed the paper; she said she understood she was to-have whatever she wanted, and that it was not to be a matter of Mr. Massey’s deciding what she wanted; that she was simply to go to him when she wanted it, and she repeatedly said it was told her so, and that was the way she understood, it, and she said once that Mr. Massey understood it just so, she felt sure. The declarations of a testator or grantor made-before or after the execution of a will or deed might be competent evidence to prove mental condition, but such declarations are not competent to show undue influence or fraud. The law is well settled, that a party can not impeach a deed or other instrument of writing which he has voluntarily executed, by his own parol declarations. Dickie v. Carter, 42 Ill. 384.

As observed before, when the papers were executed, Bexford and his wife were both weak in body, and neither was expected long to live; but so far as is shown by the evidence, their mental faculties were not impaired, and they were fully competent to transact any ordinary business. It is no doubt-true, that after the death of Bexford his wife became dissatisfied with the disposition which had been made of the property,, but this record contains no sufficient evidence to establish-undue influence or fraud practiced upon her, and she and those claiming under her must be held bound by the papers which she voluntarily executed.

Schaper v. Schaper, 84 Ill. 604, has been cited by complainant’s counsel as an authority in her favor. We are entirely satisfied with the decision made in the case cited, but the facts there are so different from the facts of this case that it can not be regarded as an authority here. Thayer v. Thayer, 14 Vt. 107, has also been cited. That case was doubtless decided right, on its facts. There, the wife did not join in the execution of the papers, and the transaction was entered into by the husband in order to defraud her out of her just rights, and the court properly held that she was entitled to relief. Other cases have been cited, but they will all be found, upon examination, to be so widely different in their facts from this case as not to be authority here.

But it is urged that the disposition of the property was testamentary in character, and hence not conclusive on the wife. If the deed which was executed by Bexford and his wife, purporting to convey the property to Massey, was an instrument to take* effect in the future, as, upon the death of the grantor, then it might be regarded as testamentary in character. If, on the other hand, the deed was an executed and delivered instrument, to take immediate effect, and nothing left for the grantors to do in order to complete the contemplated arrangement, then it is a trust. (1 Sanders on Uses and Trusts, 371.) Upon an inspection of the deed under which the property was transferred to the trustee, it is manifest that the transaction is an executed trust. The property is absolutely transferred to the trustee. The grantors retain no control whatever over it. The trustee takes the property, and by the terms of the deed he is required to pay Heber S. Bexford, Jr., during his natural life, $40 per month, and such other amount as he may deem necessary for the support of Bexford and his wife, and upon the death of Bexford before the death of his wife, then the trustee is required to pay her $40 per month, and such other sum as he may deem necessary for her comfortable support. Upon the death of both Bexford and his wife, a certain and absolute disposition of the property remaining is provided for. No power of revocation is reserved, nor ivas anything left for the grantors to do, but the property vested absolutely in the trustée, on delivery of the deed, for certain specified purposes. A testamentary disposition of property does not take effect until the death of the testator, and hence is within the control of the testator, liable to be changed or abrogated at his pleasure. But this transaction contains no element of that character. In 2 Pomeroy’s Equity Jurisprudence, sec. 1001, the author says: “A trust is executed, when no act is necessary to be done to give it effect,—when the trust is fully and finally declared in-the instrument creating it.” Such is this transaction.

It is said, that the transaction has no consideration to sustain it. Where the trust is complete and executed, as in this case, a consideration is not material. Ex parte Pye, 18 Ves. 148; Stone v. Hackett, 12 Gray, 227; Perry on Trusts, sec. 99.

The decree of the court below will" be reversed, and the ■cause remanded for "further proceedings consistent with this •opinion.

Decree reversed.