Moore v. . Quince

A very, J.: It is settled law, not only that equity will not allow a trust to fail for want of a trustee, but that when a trustee is named in a deed and the nature of his fiduciary duties and the times at which they are to be performed, according to its terms, indicate clearly that the grantor contemplated either the certainty or possibility that the legal and equitable estates must be separated and the trust administered beyond the life-time of the tiustee named, a court of equity will supply the words “ and his heirs,” after the name of the trustee upon the ground that it was omitted by mistake of the draughtsman when the deed was drawn. Ryan v. McGehee, 83 N. C., 500; Perry on Trusts, § 320. Where the Court is fully satisfied from the expressed purpose of the grantor, the nature of the deed and the context of that portion of it where the word “ heirs” would naturally belong, that it was his intention to convey an estate in fee, and the omission of the prescribed technical words w^as an oversight, there is a plain equity to have the misfake corrected. Vickers v. Leigh, 104 N. C., 248; Rutledge v. Smith, Busbee’s Eq., 283. When, on the examination of an ordinary deed of conveyance to trustees or marriage settlement, it appears manifest that a life-estate in the trustee is inadequate to the execution of the trust, and also that the obvious purpose of the grantor to dispose of the whole of the equitable estate will be defeated, unless the instrument can be construed to vest that estate in fee-simple in the beneficiaries, the concurrence of two reasons for supplying words of inheritance *90 makes it more clearly the duty of the Court to effectuate the intention of the grantor by correcting both mistakes or omissions. The general purpose pervading the deed of settlement seems to have been to make a final disposition in any contingency of the real as well as the personal property of the wife, but the particular provisions of the deed, construed literally and according to technical rules, are strangely at war with what appears to have been the leading intent of the parties in entering into it. The deed provides for the disposition of the fund derived from the sale by the trustee of any of the property without distinguishing between real and personal; but that clause is less indicative of the intent than some subsequent ones. The trustee, who, without enlargement beyond the words of the deed, takes but a life-estate, is, in case the wife dies during coverture, to hold “ the said property to the me and benefit of such child or children, as the said Sally may leave surviving her for them and their legal representatives,” unless the wife (Sally) should dispose of it by will, which she is empowered to make. The words “legal representatives” are often used (as we must gather from the context is their meaning here), in the sense of heirs at law. Briggs v. Upton, 7 Ch. Ap. Repts., 376; Kreber v. Bryan, 6 Serg. & R. (Pa.), 81; Delany v. Burnet, 4 Gil. (Ill.), 454; Morehouse v. Phelps, 18 Ill., 472. It could not have been intended that the land in this case should go to anyone who, by the proper authority, might be appointed a personal representative of a surviving child of the wife and, therefore, the inevitable inference is that the words were used to mean the children and heirs at law of such children of Mrs. Moore as might die during her life leaving issue who, also, should survive their grandmother. Bowman v. Long, 89 Ill., 19. If we construe the deed literally, supplying no ellipsis, the consequence would be that the trustee, who holds the legal *91 estate in the land for life only, would be expected to .discharge the trust for the wife, for the husband if she should die intestate during his life and without issue, and if she should die during coverture, leaving issue and also intestate, then for the benefit of the first and second generations of the issue, and on failure of lineal descendants for the heirs at law of such issue. The lands would not', without supplying words of inheritance, be finally disposed of by the deed, except in the event that Mrs. Moore should devise them in fee during coverture. We think it was the manifest purpose, by the marriage settlement, to give Mrs. Moore the power to make a final disposition of the land and other property by will, but if she should fail to exercise that power during coverture, and (here should also be a failure of issue of the marriage, then the intention was to clothe the trustee with power to convey the land in fee-simple to the survivor, whether James Moore or his wife. But in the absence of words of inheritance appended to the names of both, any possible construction of the deed would lead to very absurd conclusions. If Mrs. Moore had outlived her husband, the trustee, London, would have been required to reconvey to her, as survivor; yet if he took the legal estate under the settlement only for his own life, he could convey to her an estate for the residue of his own life and no longer. Now that James Moore became the survivor, and there was no issue of the marriage, it became the duty of the trustee to “recon-vey ” to him as survivor, and, as he has died since the death of his wife, he must convey to his only heir at law. Shall we hold that the trustee could have conveyed to him on the death of his wife only an estate per outer vie, and in case of London’s death during his life, that the remainder in fee would have passed to her heirs at law, leaving her husband, then still living, without any interest, and, for aught we know, without home or income? We are constrained to conclude that the word “reconvey” was used upon the assumption that the legal estate had pre *92 viously passed in fee, and that the reconveyance was as necessary to revest the entire estate in the wife, if she should survive, as in the surviving husband^, it being the purpose to give him, at her death, without issue and intestate, just the same estate as would have been reconveyed to the wife. This view is strengthened by the consideration that the deed of settlement was executed in the year 1867, when, in the absence of any agreement, the husband would have become the owner of the whole of the personal property immediately upon the consummation of the marriage rite and entitled to the contingent right to courtesy in the whole of her land, an estate for his own life being more advantageous than that for the life of London. It does not entirely destroy the force of this fact to admit, as we do, that the contemplated marriage was a consideration for some concessions on his part. But the fact that he surrendered such rights incident to the marriage, adds some weight to the view that it was intended, by the provision for re-conveyance, that if she should die without issue, and without availing herself of the power to provide by will for any favored one among her heirs at law, the re-conveyance to her husband should pass the fee just as if made to herself. We conclude, therefore, that the Judge erred in refusing to allow the deed to be reformed by inserting the words “and his heirs,” after the name of James Moore, as proposed, on the ground that there was no sufficient evidence, and we think, likewise, that the manifest intention of the parties was to pass the legal estate in fee to the trustee London, and, to use the words “and his heirs” in the habendum instead of “his executors and administrators.” The deed must be reformed accordingly, and the trustee should be required then to re-convey in fee to the plaintiff, who is the only heir at law of the husband James Moore. There is error, and the judgment must be reversed. Reversed.