Nightingale v. Nightingale

13 R.I. 113, 1880 R.I. LEXIS 52

• Court: Supreme Court of Rhode Island
• Decided: July 10, 1880
• Status: Published

Opinion

Potter, J.

This trust was created November 24, 1851, in contemplation of marriage by Anna E. Pratt, with the consent of her intended husband. The trust does not in any way break the course of descent of the property. It is to go to her appointees by will, and if no will, to those who would be her heirs by law. The trustee is on her request to permit her to receive rents, make repairs, and he is to sell and reinvest on her request, and if she survives her husband, to convey the property to her. The trust was created in consequence of a promise made by her to her father, before his decease.

Since said promise was made, to carry out which the deed was executed, the law regarding the law of property of married women has been so far changed that a married woman can at any time have a trustee appointed to manage and hold her property, she can receive the rents of it herself, and can thus have as full control of it as she could under this trust, except that she cannot sell certain sorts of property without her husband joining in the conveyance.

We see no good reason why a decree should not be made for a reconveyance, discharged of the trust.

As the deceased trustee by his will devised the rest and residue of his property in trust, it is very evident that the legal estate in the trust property in question would not pass by his will, and therefore the decree must be for a conveyance of the real estate by the heirs, and of the personal estate by the executor. Hill on Trustees, *283, *287, *303.

Decree entered July 10, 1880. “ This cause came on to be heard before the full court, upon the bill and answer, and was presented by counsel, and thereupon upon consideration thereof it was ordered, adjudged and decreed as follows, viz. :

“ That said complainant, Anna E. Nightingale, is entitled to the conveyance, in fee simple, to her own absolute use, of all the estate, real and personal, held by the said Edwin J. Nightingale, at the time of his decease, as trustee under the trusts in her said bill of complaint set out as in her said bill prayed.

“ And that the title of the real estate so held under said trusts upon the decease of the said Edwin J. Nightingale did not pass or vest under his will, but passed to and vested in the said defendants in said bill named as his heirs at law.

“ And it was further ordered and decreed that said defendant, Bo.ratio E. Nightingale, as executor of said will, and he and said other defendants as the heirs at law of the said Edwin J. Nightingale, by separate deed or deeds or other proper conveyances, forthwith convey and deliver to the said complainant in fee simple, to her own absolute use accordingly, all the said estate, real and personal, so held in trust by the said Edwin J. Nightingale at the time of his decease. Such conveyance or conveyances to be made through the intervention -of some third person or persons, and in such form as to pass to and vest in the said complainant the legal title thereof as said complainant may be reasonably advised to be proper to that end, with liberty to either party to apply.”

James Tillinghast, for complainant.

Note. — The Chief Justice did not sit in the above case.