Morton, J.
In June, 1825, Nathaniel Curtis and Isaac Clapp, the administrators of Robert Roberts, Senior, describing themselves as trustees of Robert Roberts, deposited with the Massachusetts Hospital Life Insurance Company the sum of one hundred thousand dollars, and received from the company the instrument called an annuity in trust, of which a copy is annexed to the bill. The source from which Curtis and Clapp received this sum is not directly stated in the report, but the only fair inference from the facts stated is, that it was a part of the estate of Robert Roberts, Junior, which came to him by inheritance from his father. For the purposes of this suit, the sum deposited is to be regarded as deposited by Robert Roberts, Junior.
It presents the case of a voluntary conveyance by him to the insurance company as trustees, upon the trusts declared in the instrument delivered by them. The first question arising in this suit is whether such voluntary settlement was revocable by the settler during his life or by his will.
There is much apparent conflict in the numerous decisions upon this subject, but the rule is well settled upon the weight of the authorities, that where the conveyance is fully executed and the trust perfectly created, the settlement cannot be revoked or altered by a second settlement of the same property, in the absence of any provisions giving the settler the power to do so. The decisions in this state are uniform to this effect. In Hildreth v. Eliot, 8 Pick. 293, the court held that a voluntary settlement fairly made by a woman in contemplation of marriage, could not be set aside by the settler, or by the court upon her application. The same point was decided in Falk v. Turner, 101 Mass. 494. In Salisbury v. Bigelow, 20 Pick. 174, Wilde, J., says : “ It seems to be a well settled principle of equity, that when a voluntary settlement, is fairly made, it cannot be annulled by the settler, unless a power of revocation be reserved for that purpose.”
In Stone v. Hackett, 12 Gray, 227, the settler transferred to a trustee certain shares of stock upon the trusts, that the dividends [273]*273were to be paid to him during his lifetime, and at his death the stock to go to certain charitable societies, reserving the power of revoking or modifying the trusts. He did not execute the power to revoke or modify the trusts, and the court upheld the settlement as valid against his widow claiming a distributive share of his estate. In delivering the judgment of the court, Bigelow, J., says: the principle is “ now well established and uniformly acted on by courts of chancery, that a voluntary gift or conveyance of property in trust, when fully completed and executed, will be regarded as valid, and its provisions will be enforced and carried into effect against all persons except creditors or bond fide purchasers without notice. It is certainly true that a court of equity will lend no assistance towards perfecting á voluntary contract or agreement for the creation of a trust, nor regard it as binding so long as it remains executory. But it is equally true that if such an agreement or contract be executed by a conveyance of property in trust, so that nothing remains to be done by the grantor or donor to complete the transfer of title, the relation of trustee and cestui que trust is deemed to be established, and the equitable rights and interests arising out of the conveyance, though made without consideration, will be enforced in chan eery.” The same general rule is recognized in Sherwood v. Andraws, 2 Allen, 79. In Viney v. Abbott, 109 Mass. 300, the rule is said to be well established that “ a voluntary settlement completely executed, without any circumstances tending to show mental incapacity, mistake, fraud, or undue influence, is binding md will be enforced against the settler and his representatives, and cannot be revoked, except so far as a power of revocation has been reserved in the deed of settlement.”
• Though the eases above cited differ in details from the case at bar, yet the principle upon which they turn applies to and is decisive of it.
The plaintiff’s testator, through the administrators of his father, voluntarily transferred his property to the Life Insurance Company, who received it and for many years managed it, upon the trusts declared in the “ annuity of trust.” The conveyance was completed and executed, the trust was fully created. The legal title to the property vested in the trustees, and the settler parted with all his power and dominion over it. The declaration [274]*274oí trust contains no power of revoking the trusts, but on the contrary provides that the “ annuity and principal sum are both hereby declared to be inalienable by the respective grantees thereof, and not subject to their debts or control.” It was a voluntary settlement fully completed and executed, and could not be revoked by the settler. Ellison v. Ellison, 6 Ves. 656. Kekewich v. Manning, 1 De G., M. & G. 176. It follows that the new settlement made on July 17, 1855, was invalid, that the will of Robert Roberts, Junior, is inoperative so far as it affects the fund in controversy, and that such fund must be distributed according to the provisions of the original settlement.
The property was held by the insurance company upon the trusts to pay the annuity or interest provided for in the declaration to the settler during his life, and upon his death to transfer the principal sum to his executors or administrators, “ in trust for the special use and benefit of any child or children of said Robert Roberts; if one only, in trust for his or her use and benefit; if more than one, for their use and benefit equally, the legal representatives to take their parent’s share; and in case the said Robert Roberts shall die without leaving any issue, then at his decease to pay said principal sum to his mother, Eliza Roberts, for her own use; but in case the said Robert Roberts shall die without leaving any lawful issue, and his said mother shall die before him, then at his decease to pay said principal sum to his executors or administrators in trust for the use of his heirs at law and the heirs at law of his said mother, equally to be divided between them.”
It is argued that this language, if applied to real estate, would create an estate tail, and that its effect applied, to personal estate is to give the settler an absolute property, and thus to render the fund subject to his control. But such a construction is clearly contrary to the intention of the parties, and would wholly defeat the purposes of the settlement. The fund is declared to be inalienable by the settler; the Life Insurance Company did not hold it as a mere agent, but during his life had a power coupled with an interest, and the whole scheme of the settlement shows that Roberts was to have merely an equitable life estate, and not an interest which would enable him at any time to terminate the trust and defeat the settlement. It is not like the .case cited oi [275]*275Albee v. Carpenter, 12 Cush. 382, where a bequest of personal property was made to one and her heirs, and if she die without issue, then a gift over. Here the gift is to Roberts for his life only, with a gift over to his children or issue, who take by purchase and not by limitation.
Robert Roberts died in 1872, his mother having died before him.
Free access — add to your briefcase to read the full text and ask questions with AI
Morton, J.
In June, 1825, Nathaniel Curtis and Isaac Clapp, the administrators of Robert Roberts, Senior, describing themselves as trustees of Robert Roberts, deposited with the Massachusetts Hospital Life Insurance Company the sum of one hundred thousand dollars, and received from the company the instrument called an annuity in trust, of which a copy is annexed to the bill. The source from which Curtis and Clapp received this sum is not directly stated in the report, but the only fair inference from the facts stated is, that it was a part of the estate of Robert Roberts, Junior, which came to him by inheritance from his father. For the purposes of this suit, the sum deposited is to be regarded as deposited by Robert Roberts, Junior.
It presents the case of a voluntary conveyance by him to the insurance company as trustees, upon the trusts declared in the instrument delivered by them. The first question arising in this suit is whether such voluntary settlement was revocable by the settler during his life or by his will.
There is much apparent conflict in the numerous decisions upon this subject, but the rule is well settled upon the weight of the authorities, that where the conveyance is fully executed and the trust perfectly created, the settlement cannot be revoked or altered by a second settlement of the same property, in the absence of any provisions giving the settler the power to do so. The decisions in this state are uniform to this effect. In Hildreth v. Eliot, 8 Pick. 293, the court held that a voluntary settlement fairly made by a woman in contemplation of marriage, could not be set aside by the settler, or by the court upon her application. The same point was decided in Falk v. Turner, 101 Mass. 494. In Salisbury v. Bigelow, 20 Pick. 174, Wilde, J., says : “ It seems to be a well settled principle of equity, that when a voluntary settlement, is fairly made, it cannot be annulled by the settler, unless a power of revocation be reserved for that purpose.”
In Stone v. Hackett, 12 Gray, 227, the settler transferred to a trustee certain shares of stock upon the trusts, that the dividends [273]*273were to be paid to him during his lifetime, and at his death the stock to go to certain charitable societies, reserving the power of revoking or modifying the trusts. He did not execute the power to revoke or modify the trusts, and the court upheld the settlement as valid against his widow claiming a distributive share of his estate. In delivering the judgment of the court, Bigelow, J., says: the principle is “ now well established and uniformly acted on by courts of chancery, that a voluntary gift or conveyance of property in trust, when fully completed and executed, will be regarded as valid, and its provisions will be enforced and carried into effect against all persons except creditors or bond fide purchasers without notice. It is certainly true that a court of equity will lend no assistance towards perfecting á voluntary contract or agreement for the creation of a trust, nor regard it as binding so long as it remains executory. But it is equally true that if such an agreement or contract be executed by a conveyance of property in trust, so that nothing remains to be done by the grantor or donor to complete the transfer of title, the relation of trustee and cestui que trust is deemed to be established, and the equitable rights and interests arising out of the conveyance, though made without consideration, will be enforced in chan eery.” The same general rule is recognized in Sherwood v. Andraws, 2 Allen, 79. In Viney v. Abbott, 109 Mass. 300, the rule is said to be well established that “ a voluntary settlement completely executed, without any circumstances tending to show mental incapacity, mistake, fraud, or undue influence, is binding md will be enforced against the settler and his representatives, and cannot be revoked, except so far as a power of revocation has been reserved in the deed of settlement.”
• Though the eases above cited differ in details from the case at bar, yet the principle upon which they turn applies to and is decisive of it.
The plaintiff’s testator, through the administrators of his father, voluntarily transferred his property to the Life Insurance Company, who received it and for many years managed it, upon the trusts declared in the “ annuity of trust.” The conveyance was completed and executed, the trust was fully created. The legal title to the property vested in the trustees, and the settler parted with all his power and dominion over it. The declaration [274]*274oí trust contains no power of revoking the trusts, but on the contrary provides that the “ annuity and principal sum are both hereby declared to be inalienable by the respective grantees thereof, and not subject to their debts or control.” It was a voluntary settlement fully completed and executed, and could not be revoked by the settler. Ellison v. Ellison, 6 Ves. 656. Kekewich v. Manning, 1 De G., M. & G. 176. It follows that the new settlement made on July 17, 1855, was invalid, that the will of Robert Roberts, Junior, is inoperative so far as it affects the fund in controversy, and that such fund must be distributed according to the provisions of the original settlement.
The property was held by the insurance company upon the trusts to pay the annuity or interest provided for in the declaration to the settler during his life, and upon his death to transfer the principal sum to his executors or administrators, “ in trust for the special use and benefit of any child or children of said Robert Roberts; if one only, in trust for his or her use and benefit; if more than one, for their use and benefit equally, the legal representatives to take their parent’s share; and in case the said Robert Roberts shall die without leaving any issue, then at his decease to pay said principal sum to his mother, Eliza Roberts, for her own use; but in case the said Robert Roberts shall die without leaving any lawful issue, and his said mother shall die before him, then at his decease to pay said principal sum to his executors or administrators in trust for the use of his heirs at law and the heirs at law of his said mother, equally to be divided between them.”
It is argued that this language, if applied to real estate, would create an estate tail, and that its effect applied, to personal estate is to give the settler an absolute property, and thus to render the fund subject to his control. But such a construction is clearly contrary to the intention of the parties, and would wholly defeat the purposes of the settlement. The fund is declared to be inalienable by the settler; the Life Insurance Company did not hold it as a mere agent, but during his life had a power coupled with an interest, and the whole scheme of the settlement shows that Roberts was to have merely an equitable life estate, and not an interest which would enable him at any time to terminate the trust and defeat the settlement. It is not like the .case cited oi [275]*275Albee v. Carpenter, 12 Cush. 382, where a bequest of personal property was made to one and her heirs, and if she die without issue, then a gift over. Here the gift is to Roberts for his life only, with a gift over to his children or issue, who take by purchase and not by limitation.
Robert Roberts died in 1872, his mother having died before him. He never had any issue born of his body, but in 1865 he adopted Ada Parker, who survived him, and is one of the respondents.
It is contended that this adoption was not legal and valid. The Probate Court, in due form, upon the petition of said Roberts and his wife, passed a decree permitting them to adopt the child, being under the age of fourteen years. She had no parents living, and her next of kin were her grandparents, who lived in New Hampshire. The said Roberts had been previously duly appointed guardian of the child, with the written consent of her next of kin. As such guardian he consented in writing to the adoption. It is objected that the decree is void because it does not appear that notice was given to the next of kin, or that a guardian ad litem was appointed to represent the child.
The statute provides that “ The parents of the child, or the survivor of them, shall, except as herein provided, consent in writing to such adoption. If neither parent is living, the guardian of the child, or if there is no guardian, the next of kin in this State, may give such consent; or if there is no next of kin, the court may appoint some suitable person to act in the proceedings as next friend of the child, and to give or withhold such consent.” Gen. Sts. c. 110, § 2.
The fourth section provides that a notice of the petition shall be published in a newspaper in the county, “ when a child has no parent living, and no guardian nor next of kin in this State.” No further provision is made for a case like the present, of a petition by a guardian for the adoption of his ward. There was a literal compliance with the statute, and the only question is whether the court should, upon general principles, have appointed a guardian ad litem for the infant.
The court had jurisdiction of the subject matter and of the parties; and if it be conceded that in such case it should appoint a guardian ad litem, the failure to do so would not render its de[276]*276cree absolutely void. It would at most be an irregularity which might render it voidable by the infant at her election. Austin v. Charlestown Female Seminary, 8 Met. 196. Hill v. Keyes, 10 Allen, 268.
It was clearly for her benefit, and a stranger cannot avoid it tc her injury. We are of opinion, therefore, that the adoption was valid, and the next inquiry is, what are the rights of the adopted daughter under her father’s settlement.
The statute provides that “ A child so adopted shall be deemed, for the purposes of inheritance by such child and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock ; except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation.” Gen. Sts. c. 110, § 7.
The adopted child, in this case, therefore, in construing her father’s settlement, must be regarded in the light of a child born in lawful wedlock, unless the property disposed of by the settlement falls within one of the exceptions. It is true that if she takes under the settlement, the property does not come to her by inheritance, but it comes to her as one of the legal consequences and incidents of the natural relation of parents and children. Does it fall within either exception of the statute ? It cannot be claimed that it falls within the last exception as property from the kindred of the parents by right of representation.
The other exception is that she cannot take property “ expressly limited to the heirs of the body or bodies of the parents by adoption.” The term “ heir of the body ” is a well established technical term, with which the words “ children ” or “ issue ” or “ lawful issue ” are not synonymous. The rule of construction [277]*277enjoined by our statutes is, that technical words or phrases which have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appi opriate meaning, unless it is inconsistent with the manifest intent of the legislature or repugnant to the context. Gen. Sts. & c. 3, § 7.
The language of the statute shows that the legislature intended to use the phrase “ heirs of the body or bodies ” in its primary technical sense. The terms of the settlement, above cited, do not limit the estate expressly “ to the heirs of the body ” of Roberts ; and the terms therein used, “ child or children,” “ issue ” and “ lawful issue,” are not equivalent terms, and do not lead to the same construction and legal result as would be reached if the estate was in direct words limited to the heirs of his body. We are therefore of opinion that the case does not fall within either of the exceptions of the statute, and that, as to the property in question, Ada Parker Roberts is to be deemed the child of Robert Roberts, the same as if she had been born to him in lawful wedlock. It follows that, in the contingency which has happened, she is as such child entitled to the whole of the principal fund.
It is argued that this statute is unconstitutional, as applied to a settlement made before its passage, because it takes property frorh one person and gives it to another. But until the death of the settler it was uncertain what persons would take under the settlement, and no title ever vested in those who are now claiming as his heirs or the heirs of his mother against his adopted daughter. The statute is an important one, general in its application, and passed by the legislature as the guardian of the public interests, and is to be upheld unless it clearly exceeds their powers. Much more extensive powers have been exercised without question, in the enactment of statutes affecting tenures and the interests of persons unborn or having remote expectations. Such was the St. of 1791, c. 61, giving to tenants in tail the power to bar by deed the issue in tail, and the St. of 1804, a. 59, providing a method for barring remainders and reversions expectant on estates tail, and the St. of 1851, c. 14, § 1, for the barring of equitable estates tail. Clarks v. Cordis, 4 Allen, 466.
An instance more nearly like the statute we are considering is found in the provisions first enacted in the Revision of 1886 [278]*278that an illegitimate child, if his parents intermarry and his father acknowledges him, shall be considered as legitimate to all intents and purposes. Rev. Sts. c. 61, § 4. St. 1853, c. 253. And in Loring v. Thorndike, 5 Allen, 257, it was held that this statute gave to an illegitimate child the same rights which a child born in lawful wedlock would have, under a will proved before the statute was passed.
The fact that the statute, as one of its incidental effects, changes the descent and devolution of property, does not render it invalid unless it defeats vested rights. As we have seen, in the contingency which has happened in this case, no right adverse to the adopted daughter had vested in the heirs who now claim, and therefore none have been defeated or impaired.
It is also argued that the result we have reached is opposed to the intention of the settler. But, as is often the case in deeds or wills providing for a remote future, he could have had no intentions as to the particular person who was to take. His general intention was that the property should go in the first instance to his children as a class. Whoever at his death fell within this class was within this general intention, and as his adopted daughter is by law his child, she belongs to the class intended to take, and her rights cannot be defeated upon the assumption that he did not intend her to take.
The views we have taken render immaterial the other questions argued at the bar. The result of the whole case is that Ada Parker Roberts, as the only child of Robert Roberts, the settler, is entitled to receive the whole of the principal of the trust fund. Decree accordingly.
In 1871, the sections of c. 110 of the Gen. Sts. relating to adoption were repealed; but the provisions of the sections cited were substantially reenacted St. 1871, c. 310.