The opinion of the court was delivered by
Porter, J.:
It is the contention of plaintiffs in error that the trust created by the deed is an executory one, and conveyed no present interest to the donees; that the latter took nothing by the deed until the death of Mrs. Miles and the conveyances by the trustee after her death; and that the conveyance was subject to revocation during her lifetime. For these reasons it is insisted that the trust is void. It is well settled that [386]*386courts of equity will enforce a perfect or executed trust, though voluntary, but will lend no assistance in enforcing an agreement to create a trust which remains executory. The authorities cited with respect to gifts inter vivos and causa mortis, as well as those which define the necessary elements of a gift generally, have very little application to a trust deed. A gift to be executed requires delivery, while a voluntary trust is executed by declaration. The important difference is aptly stated in Savings Bank v. Merriam, 88 Me. 146, 33 Atl. 840, in the following language:
“The creation of a trust is but the gift of the equitable interest. But on account of the difference in the form and purposes of the two transactions, it necessarily follows that different acts are essential in the two cases. While delivery and a surrender of all present and future dominion over the property given is, absolutely necessary in a gift, these would be inconsistent with the very purposes of a trust.” (Page 150.)
An executory trust is said to be one where the beneficiary is not yet clothed with the equitable title but has a mere right to have some act done which will vest, in him such equitable title. (Nicoll v. Ogden et al., 29 Ill. 323, 81 Am. Dec. 311.) The instrument here in express terms conveys the property to a trustee with directions that the trustee shall, at the death of Mrs. Miles, convey the legal title to the beneficiaries, and it clothed the beneficiaries with the equitable title the moment it was executed and delivered.
“A trust is executed when no act is necessary to be done to give effect to it when the trust is fully and finally declared in the instrument creating it.” (3 Pom.. Eq. Jur. § 1001.)
In the same section it is said:
“When, by the terms of the trust as created, and for the purpose of carrying it into effect, the trustee is directed to do some act with the property, the trust is not thereby executory. . . . All trusts are in a senseexecutory, because a trust can not be executed except. [387]*387by conveyance, and therefore there is something always to be done. But this is not the sense which a court of equity puts upon the term ‘executory trust.’ ”
Was it left either for the courts or the trustee to determine what Mrs. Miles’s intention was? Did she act as her own conveyancer or leave it for the courts or the trustee to become her conveyancer? These are the tests. The instrument expressly declares upon what terms and conditions the legal title to the trust estate has been conveyed; the final intention of the creator of the trust with respect thereto appears with absolute certainty, so that nothing remains to be done except that the trustee shall carry into effect her intention as declared.
The deed in question was not testamentary in its character. Plaintiffs in error rely upon Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, 26 Am. St. Rep. 86, and quote from the syllabus of that case as follows:
“It may be laid down as a general rule that a written instrument which discloses the intention of the maker respecting the posthumous destination of his property, and which is not to operate until after his death, is testamentary in its character, and not .a deed or contract, and may be revoked.”
It is difficult to see how the doctrine declared in that case can affect the question here. The language of the syllabus refers to the written instrument which was itself construed in Reed, Ex’r, v. Hazleton, 37 Kan. 321, 15 Pac. 177, and expressly held not to “contain any of the usual operative words of a conveyance, with the possible exception of this clause: ‘After the death of the said Henry Ricket of the first party, the right and title of the land in question shall vest in the said John Hazleton of the second party.’ ” (Page 326.) It was further said in the opinion that “that provision had no present operation, and could be revoked by the grantor at any time. It was «testamentary.” ■ (Page 326.) In the present case the operation of the con[388]*388veyance was not deferred until after the death of Mrs. Miles. On the contrary, it operated at the moment of its execution and delivery, and conveyed the title of the real estate to the trustee in trust for the donees. It was only the-enjoyment of the property which was deferred until after her death.
In their briefs counsel speak of an “executed gift” or a “gift executed.” This instrument created an executed, or completed, trust, and from the time the deed was executed and delivered it became irrevocable. It conveyed the legal title to the property to the trustee and the equitable title in 'presentí to the beneficiaries.
“The mere fact that certain provisions in a deed.of trust are not to take effect until the grantor’s death' does not affect its character as creating an executed trust, and render it testamentary, where a present estate is transferred by it to the trustee.” (28 A. & E. Encycl. of L. 886, and cases cited.)
Nor does the fact that the donor retained a beneficial interest in the property during her life destroy its character as an executed trust. In Stone v. Hackett, Executor, & others, 78 Mass. 227, the income of the property was to be paid to the donor during his life, .and upon his death the principal was to be divided among certain charities. The trust was held valid. In Davis v. Ney, 125 Mass. 590, 28 Am. Rep. 272, a trust was upheld which allowed the donor to receive, not only the income, but such part of the principal as she might need during her life. In the case of In re Estate of Soulard, 141 Mo. 642, 663, 43 S. W. 617, 622, it was held that even the reservation of the right to direct the reinvestment of the fund was not inconsistent with a valid trust, because the reservation did not affect the title of the donees or devest them of their interest and was only a reasonable provision for the protection of the equitable rights of the donor. In the opinion it was said:
“The reservation was not of title, but of power cou[389]*389pled with the trust, and is not inconsistent with the complete transfer of the title in presentí.” (Page 664.)
(To the same effect is Williams v. Evans, 154 Ill. 98, 39 N. E. 698.)
“The character of the trust as complete is not affected by the fact that the right of enjoyment is reserved to the settlor until a future period, as until his death, provided the intention to place the subject of the trust beyond his control is clearly manifested. But it is otherwise where title is not intended to pass until the settlor’s death.” (28 A. & E. Encycl. of L. 894, and cases cited in note 5.)
It is clear that none of the provisions of the deed shows an intention on the part of Mrs. Miles to retain any dominion or control over the property.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Porter, J.:
It is the contention of plaintiffs in error that the trust created by the deed is an executory one, and conveyed no present interest to the donees; that the latter took nothing by the deed until the death of Mrs. Miles and the conveyances by the trustee after her death; and that the conveyance was subject to revocation during her lifetime. For these reasons it is insisted that the trust is void. It is well settled that [386]*386courts of equity will enforce a perfect or executed trust, though voluntary, but will lend no assistance in enforcing an agreement to create a trust which remains executory. The authorities cited with respect to gifts inter vivos and causa mortis, as well as those which define the necessary elements of a gift generally, have very little application to a trust deed. A gift to be executed requires delivery, while a voluntary trust is executed by declaration. The important difference is aptly stated in Savings Bank v. Merriam, 88 Me. 146, 33 Atl. 840, in the following language:
“The creation of a trust is but the gift of the equitable interest. But on account of the difference in the form and purposes of the two transactions, it necessarily follows that different acts are essential in the two cases. While delivery and a surrender of all present and future dominion over the property given is, absolutely necessary in a gift, these would be inconsistent with the very purposes of a trust.” (Page 150.)
An executory trust is said to be one where the beneficiary is not yet clothed with the equitable title but has a mere right to have some act done which will vest, in him such equitable title. (Nicoll v. Ogden et al., 29 Ill. 323, 81 Am. Dec. 311.) The instrument here in express terms conveys the property to a trustee with directions that the trustee shall, at the death of Mrs. Miles, convey the legal title to the beneficiaries, and it clothed the beneficiaries with the equitable title the moment it was executed and delivered.
“A trust is executed when no act is necessary to be done to give effect to it when the trust is fully and finally declared in the instrument creating it.” (3 Pom.. Eq. Jur. § 1001.)
In the same section it is said:
“When, by the terms of the trust as created, and for the purpose of carrying it into effect, the trustee is directed to do some act with the property, the trust is not thereby executory. . . . All trusts are in a senseexecutory, because a trust can not be executed except. [387]*387by conveyance, and therefore there is something always to be done. But this is not the sense which a court of equity puts upon the term ‘executory trust.’ ”
Was it left either for the courts or the trustee to determine what Mrs. Miles’s intention was? Did she act as her own conveyancer or leave it for the courts or the trustee to become her conveyancer? These are the tests. The instrument expressly declares upon what terms and conditions the legal title to the trust estate has been conveyed; the final intention of the creator of the trust with respect thereto appears with absolute certainty, so that nothing remains to be done except that the trustee shall carry into effect her intention as declared.
The deed in question was not testamentary in its character. Plaintiffs in error rely upon Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, 26 Am. St. Rep. 86, and quote from the syllabus of that case as follows:
“It may be laid down as a general rule that a written instrument which discloses the intention of the maker respecting the posthumous destination of his property, and which is not to operate until after his death, is testamentary in its character, and not .a deed or contract, and may be revoked.”
It is difficult to see how the doctrine declared in that case can affect the question here. The language of the syllabus refers to the written instrument which was itself construed in Reed, Ex’r, v. Hazleton, 37 Kan. 321, 15 Pac. 177, and expressly held not to “contain any of the usual operative words of a conveyance, with the possible exception of this clause: ‘After the death of the said Henry Ricket of the first party, the right and title of the land in question shall vest in the said John Hazleton of the second party.’ ” (Page 326.) It was further said in the opinion that “that provision had no present operation, and could be revoked by the grantor at any time. It was «testamentary.” ■ (Page 326.) In the present case the operation of the con[388]*388veyance was not deferred until after the death of Mrs. Miles. On the contrary, it operated at the moment of its execution and delivery, and conveyed the title of the real estate to the trustee in trust for the donees. It was only the-enjoyment of the property which was deferred until after her death.
In their briefs counsel speak of an “executed gift” or a “gift executed.” This instrument created an executed, or completed, trust, and from the time the deed was executed and delivered it became irrevocable. It conveyed the legal title to the property to the trustee and the equitable title in 'presentí to the beneficiaries.
“The mere fact that certain provisions in a deed.of trust are not to take effect until the grantor’s death' does not affect its character as creating an executed trust, and render it testamentary, where a present estate is transferred by it to the trustee.” (28 A. & E. Encycl. of L. 886, and cases cited.)
Nor does the fact that the donor retained a beneficial interest in the property during her life destroy its character as an executed trust. In Stone v. Hackett, Executor, & others, 78 Mass. 227, the income of the property was to be paid to the donor during his life, .and upon his death the principal was to be divided among certain charities. The trust was held valid. In Davis v. Ney, 125 Mass. 590, 28 Am. Rep. 272, a trust was upheld which allowed the donor to receive, not only the income, but such part of the principal as she might need during her life. In the case of In re Estate of Soulard, 141 Mo. 642, 663, 43 S. W. 617, 622, it was held that even the reservation of the right to direct the reinvestment of the fund was not inconsistent with a valid trust, because the reservation did not affect the title of the donees or devest them of their interest and was only a reasonable provision for the protection of the equitable rights of the donor. In the opinion it was said:
“The reservation was not of title, but of power cou[389]*389pled with the trust, and is not inconsistent with the complete transfer of the title in presentí.” (Page 664.)
(To the same effect is Williams v. Evans, 154 Ill. 98, 39 N. E. 698.)
“The character of the trust as complete is not affected by the fact that the right of enjoyment is reserved to the settlor until a future period, as until his death, provided the intention to place the subject of the trust beyond his control is clearly manifested. But it is otherwise where title is not intended to pass until the settlor’s death.” (28 A. & E. Encycl. of L. 894, and cases cited in note 5.)
It is clear that none of the provisions of the deed shows an intention on the part of Mrs. Miles to retain any dominion or control over the property. All the legal title is conveyed to the trustee, and he is given absolute control over it. There is nothing inconsistent with an executed trust in the reservation of the income for her own use. The provision authorizing the trustee to sell and convey, if in his opinion the purposes of the trust will be better subserved by so doing, is coupled with a direction that, in case he does sell, the proceeds are to go to the beneficiaries named in lieu of the real estate.
it is seriously argued that we must refuse to enforce the express trust declared in the deed because incorporated into it is a provision that the trust was to cease at her death, and it is insisted that the moment she died all authority of the trustee was revoked. No court would be justified in adopting a construction so purely technical and so utterly at variance with the expressed intention of the donor. In the same sentence the deed declares that at her death the trustee shall execute and deliver to the beneficiaries quitclaim deeds of the real estate. The language of the provision reads:
“And said party of the first part hereby declares that upon her decease the said trust hereby created shall cease and determine, and said party of the second part shall then distribute and turn over said. estate, and [390]*390execute and deliver quitclaim deeds of the aforesaid real estate, except under existing conditions hereinafter mentioned, with warranty against encumbrances by or through himself, as follows:”
It follows that the judgment must be affirmed.