McBrayer v. Cariker

BEICKELL, C. J.' It was the right of the plaintiffs, during the progress of the trial, indeed at any time before final judgment, to amend the complaint, in any respect in which it was defective; and the amendment might be by adding to or striking out parties, plaintiff or defendant. — Crimm v. Crawford, 29 Ala. 623; Forcheimer v. Pickard, 27 Ala. 142; Prater v. Miller, 25 Ala. 320. 2. The recital in the conveyance of Edwards is, that the consideration, one thousand dollars, was paid by Sydney S. Cariker, as trustee for his mother, and her living and after-born children. The recital must be taken as true, as against Sydney S., and as against the appellant, his alienee and privy in estate. The consideration moving from him in the capacity of trustee, and, as it must be intended, being trust funds in his hands which he had the right of investing, if the legal estate had been conveyed to him, without a declaration of trusts, a court of equity would have impressed it with the same trusts which were impressed upon the funds employed in its purchase. It is in this view of his relation, and of the transaction, the conveyance must be read and construed. Thereby, though the conveyance is evidently the work of a very unskilled draughtsman, the intention of the parties can be collected with certainty, apd the character of' the estate created is not matter of reasonable doubt. The legal estate is conveyed to Sydney S^.in trust for his mother, her living and her after-born children. Whether it is an active trust, cre [55] ated for the preservation of the estate during the life of the mother, for herself, her living and her after-born children, the legal title to -which vested in the trustee, continuing until the trusts were executed, under the statute (Code of 1876, § 2186); or whether it is a passive trust, which, by operation of the preceding section, clothed the cestui que trust with the legal as well as the equitable estate, is not a question of practical importance. On the death of the mother, in any event, the estate of the trustee terminated. All the purposes of the trust were then accomplished, and every person entitled to take as a cestui que trust must then have been in being. An extension, or enlargement, of the estate of the trustee beyond the life of the mother, intercepting the vesting of a fee-simple, legal estate in the cestui que trust, would be without an object, and of detriment to them. The preservation of the legal estate, until they who were entitled to take as after-born children could be ascertained, is the characteristic of the trust, distinguishing it, if it is distinguishable, from a naked, dry, or passive trust, which the statute divests and removes as an obstacle to the union in the cestui que trust of the legal and equitable estate. On the death of the mother, these are ascertained, and the estate of the trustee terminates from' its very nature and purposes. — Comby v. McMichael, 19 Ala. 747. The general rule, insisted on by appellant, may be conceded, that at law the trustee, clothed with the legal title, unless restrained by the terms of the trust, may convey, assign, or incumber the trust estate; and if the cestui que trust is injured, he must resort to a court of equity fop relief.— Huckabee v. Billingsley, 16 Ala. 414. The rule can have no application to this case, in which the sale and conveyance was made by the trustee after the expiration of his estate, and when the legal and equitable estate had united in the cesiuis que trust. The estate vesting in him as one of the cestuis que trust, passed to his grantee, but his conveyance was inoperative to pass the estate of the other children who did not join'in executing it/ We find ño error in the record, and the judgment is aL firmed,