McKenzie v. . Sumner

Shepherd, C. J.: As to the real estate devised to the defendant for the benefit of the plaintiff, there is no reason why the legal title is not vested in the plaintiff by the statute of uses, as the land is not conveyed to her “ sole and separate use” (see authorities collected in Malone on Real *428 Prop. Trials, 544), nor is the trustee charged in any manner whatever with any special duties in respect to the same. .The case does not fall within either of the three well-known exceptions to the operation of the statute, and it would seem clear that the legal estate is executed in the plaintiff. 1 Perry Trusts, 298, and the numerous authorities cited in the note. The statute, however, does not apply to personal property, such as notes and bank stock, and the legal title remains in the trustee until it is in some way transferred to the equitable owner. Is there any reason why the Court, exercising its equitable jurisdiction, should not have directed the assignment of the legal title in this instance? AVe can see none. The plaintiff being the absolute equitable owner, there are no ulterior limitations to bo protected, and under the terms of the will the trustee has nothing but a bare, naked legal estate unaccompanied, as we have remarked, with a single specified duty. As the plaintiff’s separate estate is fully protected against the interference of her husband by the provisions of the Constitution, and as the trustee has no power to withhold from her either the property or its income, we are unable to see why the legal title should remain in him, unless it be to enable him to charge the five per cent, commissions which he claims for “simply collecting and paying over the dividends upon.the stock.” AVe do not deem it necessary to enter into an elaborate discussion of the subject, but will simply refer to the following authorities, which, although perhaps not exactly in point, fully sustain, upon principle, the ruling of his Honor: Turnage v. Green, 2 Jones’ Eq., 63; Battle v. Petway, 5 Ired., 576; Jasper v. Maxwell, 1 Dev. Eq., 361. AVe will add the following extract from Lewin on Trusts, 18: “The simple trust is where property is vested in one person upon trust for another, and the nature of the trust, *429 not being prescribed bj~ the settler (and such is the case here), is left to the construction of law. In this case the cestui quo trust has jus habencli, or the right to be put into actual possession of the property, and jus disponencli, or the right to call upon the trustee to execute conveyances of the legal estate as the cestui que trust directs.” This is so clearly a simple trust that under our decisions the property, prior to the present Constitution, would have belonged to the husband. Ashcraft v. Little, 4 Ired. Eq., 236; Heartman v. Hall, 3 Ired. Eq., 414. IVe have examined the authorities cited by the intelligent counsel for the appellant, but thejT do not satisfy us that the judgment below was erroneous. The judgment in all respects is Affirmed.