Bunn v. Winthrop

The Chancellor. The object of the bill is to seek performance of the trust created by the deed of the 26th of February, 1811, by having a competent trustee provided who will execute it, and by carrying the provisions, in favour of the plaintiffs, into effect. This has led ■ the counsel into a discussion touching the validity of that deed, and how far a court of equity ought to interfere to aid it. After a consideration of the case, I am induced to conclude, that there is no well-founded objection to a decree in support of the subject matter of the bill. [336] The instrument is good, as a voluntary settlement, though retained by the grantor in his possession until his death, There was no act of his,, either at the time, or subsequent to the execution of the deed, which denoted an intention contrary to that appearing upon the face of the deed. The cases of Clavering v. Clavering, (2 Vern. 473. 1 Bro. P. C. 122.,) of Boughton v. Boughton, (1 Atk. 625.,) and of Johnson v. Smith, (1 Ves. 314.,) I had occasion * Ante.p.251. to consider, in the cause of Souverbye and wife v. Arden,* and they will be found to be authorities in favour of the va~ lidity and operation of deeds of settlement, though retained by the grantor, under circumstances much less favourable to their effect than the one now under consideration. Nor do I think that the want of some good or valuable consideration appearing on the face of the deed ought to preclude this court from lending its assistance. There is no rule of the court against giving effect, as between the parties, to a voluntary actual transfer by deed, of a personal or chattel interest, without any consideration appearing. The rule, I a pprehend, is directly otherwise, as to personal property, whatever it may be as to real estate. It was said by the Chancellor, in Bold v. Corbett, (Prec. in Ch. 84.,) to be discretionary in a court of equity, whether it would aid a voluntary conveyance where there was no remedy at law; and by looking into the earlier cases it would seem that there was much floating and unsettled opinion on the question how far equity would help a defect in a voluntary conveyance of real property, or decree specific performance in the case of a voluntary covenant. (1 Ch. Rep. 84. Wiseman v. Roper, 2 P. Wms. 467, 8. Randal v. Randal, 2 Vent. 365. n. 1 Vern. 100, Villers v. Beaumont.) With respect, however, to chattel interests, an agreement under seal imports a consideration at law. In Beard v. Nuthall, (1 Vern. 427.,) a bond, though voluntary and without consideration, was supported by a decree ; and the Master of the Rolls, in 3 P. Wms. 222., spoke to the same effect as to a [337] voluntary bond. But it will be sufficient, on this subject of aiding voluntary agreements, to recur to the distinction declared by Lord Eldon, in Ellison v. Ellison, (6 Ves. 662.,) as being one which reduces this point to something like es- _ tablished rule. If you want, according to that distinction, the assistance of chancery to . raise an interest by way of trust, on a covenantor executory agreement, you must have a valuable or meritorious consideration ; for the court will not constitute you cestuy que trust, when you are a mere volunteer, and the claim rests in covenant, as a covenant to transfer stock. But if the, actual transfer be made, the equitable interest will be enforced; for the transfer constitutes the relation between trustee and cestuy que trust, though voluntary and without consideration. To the same effect was the observation of Sir Joseph Jekyll, in Lechmere v. Earl of Carlisle, (3 P. Wms. 222.,) that every cestuy que trust, though a volunteer, and the limitation without consideration, was entitled to the aid of a court of equity. The deed in question, in this case, was an actual creation of the trust and transfer of the specified interest; and no doubt can arise under the above distinction, even independent of the operation of the instrument as a deed, that this court ought to give it effect and performance. If it was necessary to go further on this point, I should be induced to say that the facts appearing in the bill and answer amount to proof of a consideration. One of the plaintiffs is an infant and natural child of the grantor ; and the other is the mother of the child, who had resided in the house of the grantor, having the charge of his family for as much as fifteen years prior to the date of the instrument, and while the grantor was, during that time, passing from the age of 55 to that of 70 years. It appears to me that, under these circumstances, the grantor, a man of very large fortune, was bound, in reason and justice, to make competent provision for the mother and the child. Past seduction has been held a valid consideration to support a covenant for pecuniary re [338] paration; and the innocent offspring of criminal indulgence has a claim to protection and support, which courts of equity cannot, and do not, disregard., It may be truly said, j^on 0fousa a(jeo gestamus peclora. In the cases of the Marchioness of Annandale v. Harris, (2 P. Wms. 432. 3 Bro. P. C. 445.,) of Cray v. Rooke, (Cases temp. Talbot, 153.,) and of Cary v. Stafford, (Amb. 520.,) settlements by way of voluntary bond, covenant, or deed, as the prcemium pudicitice, were established, and a specific performance decreed. I have no doubt that the plate, in the use of the family, is embraced by the words household goods and furniture. (Roper on Legacies, vol. 2., 239. 249—255., where the authorities are collected.) I shall, accordingly, decree, that the plaintiff, Hannah Curry, elect, in the presence of a master, such portion of the household goods and furniture (plate included) as shall be deemed sufficient by her, with the approbation of such master, towards furnishing a house in a genteel style, having due regard to her circumstances and condition in life. That the lease alluded to in the said instrument be deposited with the assistant register; and that the residue of the furniture and household goods be delivered over to the guardian of Mary Bunn Marston, to be preserved for her use; and that, until further order, the assistant register take charge of the rents and profits of the house and lot mentioned in the said instrument, and apply the same as therein directed. Decree accordingly, Footnotes [*] Ante, p.251.