Wells v. McCall

The opinion of the court was delivered, by Agnew, J. — The late Joseph R. Ingersoll, Esq., by, his will [212] made in 1862, republished in 1864, and proved in 1868, bequeathed $100,000 to his nephew, Charles Ingersoll, and to the trustees of Mary Wilcocks, a niece of his late wife. “ One-half, or $50,000, to Charles Ingersoll, his heirs, executors, administrators and assigns, and' the other half, or $50,000, to the trustees hereinafter named, of Mary Wilcocks, their heirs, executors, administrators and assigns.” He directs these two bequests to take effect in preference of all others, and proceeds thus: “ I nominate and appoint Peter McCall, Henry McCall and Alexander Wilcocks, and the survivors and survivor of them, trustees of the said Mary Wilcocks, with power and authority to receive the aforesaid legacy and sum of money or effects for her sole use and benefit, whether she be married or single, free from any debt, control or liability of any husband, and, under this restriction, subject to her direction and disposition during her life, and, after her death, subject to her last will and testament.” After certain specific legacies, he devises and bequeaths one-half of the residue and remainder of his estate to the same trustees of Mary Wilcocks, their heirs, executors, &c., in like manner and with the same limitations, power and authority, uses and purposes, as were expressed with regard to the $50,000 given to the said trustees. Mrs. Wells’ bill in this case was to declare this trust inoperative, and to compel an account by the executor of the will, and a partition between Charles Ingersoll and herself. The important question is, whether the trust created by Mr. Ingersoll is valid and effectual; Mary Wilcocks being a feme sole at the death of the testator. In Barnett’s Appeal, 10 Wright 392, it was held, that a devise to trustees to lease real and invest personal estate, to collect the rents, interest and profits, and to pay over to the three children of the testator during their lives, is an active, operative trust, and is not executed by the statute, or by any principle of the state common law, notwithstanding the cestui que trusts were males and sui juris. This case has been followed by a number of decisions running in the same direction, though diversified in circumstances, all supporting the power of the donor or devisor to control his gift by creating an active, operative trust, when necessary, to promote a proper and useful purpose, without infringing upon the law against perpetuities. Previous to Barnett’s Appeal, the doctrine of trusts had not been uniform or consistent, owing to the strife between the will of the donor and that public policy which forbids restraints on alienation. In Dodson v. Ball, 10 P. E. Smith 492, we noticed these opposing principles underlying the doctrine of trusts, and the predomination of each, as the judicial mind happened to incline to the one or to the other. Arranging the cases in their respective classes, Lancaster v. Dolan, 1 Rawle 231, decided in 1829, led the column in favor of the right of the donor to control his gift; Kuhn v. [213] Newman, 2 Casey 227, decided in 1856, headed the opposite column in favor of the policy of striking down trusts that before had been believed to be valid. Then came Barnett’s Appeal, decided in 1864, overruling Kuhn v. Newman, and turning back into the former direction which has been followed by others. Looking, therefore, at the earlier and later authorities, it must be taken to be settled that an active and operative trust may be created to preserve an estate, and protect it against the husband or creditors of a beneficiary, or to make it answer some useful and legal but temporary purpose, without infringing upon the law against perpetuities. We are met in this case with the objection that Mrs. Wells, then Miss Wilcocks, was a feme sole at the testator’s death, when his will took effect, and it is contended that the trust being intended for a protection against a coverture not then existing, could not take effect. The question therefore arises upon the power to provide a trust for a future marriage, and confronts us with the old and opposing forces already referred to. The ground of public policy invoked to destroy the trust, is the restraint it imposes upon the freedom of alienation; a restraint which, in Smith v. Starr, 3 Whart. 62, and Hamersly v. Smith, 4 Id. 126, is recognised as being ineffectual, as well in the case of a female as in that of a male, when repugnant to the nature of the gift. If therefore an absolute estate in personalty or a fee in realty be intended to be vested in a cestui que trust, her condition as a feme sole would, on this principle, render inoperative any attempt to fetter her power over the estate by means of a trust for a future and as yet uncertain purpose. But on all hands it is admitted that entire freedom of disposition would impose an unreasonable restriction upon the power of a parent (or indeed any other benefactor) to provide for the future support of a daughter. And Rogers, J., says precisely this in Smith v. Starr, supra; while the whole doctrine of Lancaster v. Dolan, supra, and its sequents is filled to saturation with this admission, and its principle acted upon therein. The necessary consequence of this conflict between private right and public interest is a compromise, which yields the doctrine of policy so far as to enable the donor to impress a trust upon his gift when it is done in “ immediate contemplation of marriage.” This is conceded in Smith v. Starr, Hamersly v. Smith, Cochran v. O’Hern, 4 W. & S. 95 (per Grier, P. J.), and in McBride v. Smyth, 4 P. F. Smith 245, a case most vigorously attacked by the trustees of Mrs. Wells, but which we think states the true doctrine in this state. The doctrine is supported also by Lancaster v. Dolan, Wallace v. Coston, 9 Watts 137, Lyne’s Executor v. Crouse, 1 Barr 113, and Rogers v. Smith, 4 Id. 93. In all these cases the trust was by deed, [214] created by the owner of the property while a feme sole, to protect her estate upon a future marriage, and without a recital of the intended marriage; and in none was the validity of the trust doubted for a moment. We take it, therefore, as settled, that the trust will be supported, notwithstanding the cestui que trust is a feme sole at its creation, provided that it be done in immediate contemplation of marriage. This leads us to inquire what is meant by an immediate contemplation of marriage. Evidently the expression means in contemplation of an immediate marriage —one presently in view of the donor, and to take place in a short time after the instrument is to take effect — in contemplation of marriage with a particular person, says Gibson, C. J., in Hamersly v. Smith, supra. That the marriage must be in immediate view at the time of the creation of the trust, is proved by all the cases which decide that on the termination of the coverture the trust falls and is not revived by a second marriage, for if any marriage would answer to the provision for the trust, a second would as well as the first. But a second marriage is evidently a thing not in immediate contemplation, being cut off from view by the uncertainties of a first marriage, the death of the husband, and an intention to marry a second time. The marriage then being one in view of the donor or devisor at the time of creating the trust, the question arises,'how is this to appear? It is argued with plausibility that it must appear in the instrument creating the trust. At first this position seemed to me to have weight. But clearly it is contrary to the whole current of decision. An examination of the foregoing cases, to which may be added Snyder v. Snyder, 10 Barr 423, wherein the trust has been supported in favor of married women who were sole at the time the estate vested, will discover the 'fact that in none did the contemplated marriage appear specifically in the instrument creating the trust. It is asking too much of us, to suppose that the bar and the bench have suffered so many cases to pass without question, if it were deemed to be the rule that the intended marriage should he recited in the instrument. It is argued that it leads to uncertainty in the title, and that after a number of years a conveyancer would find it difficult to ascertain whether a marriage had been in immediate contemplation or not. Perhaps the easiest answer would be, that the law has been so understood since Lancaster v. Dolan, more than forty years, and the evil has not made itself felt, or drawn forth an adverse decision. But a contemplated marriage is a fact that discloses itself, and is perhaps as easily ascertained by concomitants as the existence of any other fact not patent on the face of the paper, on which titles sometimes depend. Such is always the case in estates upon condition precedent or subsequent, or dependent on entry or re-entry, &c. [215] There can be no complaint of any want of notice to lead to the fact, for the creation of the trust itself puts 'every one on inquiry, and leads at once to knowledge. The creation of the trust constitutes the evidence of the fact being in the contemplation of the donor or devisor, and when this is followed within a reasonable time by consummation of the marriage, it concludes the proof. If the uncertainty be too great, the remedy must come from the legislature, for we are incompetent to change a rule of property sanctioned by so many decisions. To do it by judicial decision would overturn many trusts having their root in Lancaster v. Dolan, Wallace v. Coston, Lyne v. Crouse, Rogers v. Smith, Smith v. Starr, Hamersly v. Smith, et id genus omne. In all those cases in which an owner of an estate has conveyed in trust for herself upon marriage, without a recital of the particular marriage to take place, the very fact that one sui juris thus limits her own power upon marriage, affords a strong presumption that a speedy marriage is intended. Having these principles in view, it is obvious that the creation of the trust for Miss Wilcocks by Mr. Ingersoll, followed by her almost immediate marriage after his death, in connection with the facts set forth in the answers of her well-known engagement to Mr. Wells, and the testator’s knowledge of it, leave no doubt that the trust was created with a view to this particular marriage, and is therefore operative as well as active, as it clearly is. The trust being valid, the quantity of estate or interest vested in Mrs. Wells is not material, for whether it be for life or absolute, the trust remains during coverture, which cannot outlast her life, to protect the estate from the control of her husband and from any liability she might be influenced to create for the payment of his debts. This is the very restriction the testator intended to impose upon his gift that it might not be diverted from her to him or to his creditors, and to effectuate this purpose he placed it in the hands of the trustees. Even if in all other respects her estate was by the terms of the will to be subject to her direction and disposition during her life, yet as to this restriction the trustees must still preserve their grasp of the fund to prevent that direction and disposition from being exercised in favor of the forbidden object. The decree of the Court of Nisi Prius is therefore affirmed at the costs of the appellants.