Boykin v. Pace's

STONE, J. The paper executed by T. M. Pace to Stephen Pace, senior, bearing date January 12th, 1870, is more than a receipt for money. It is a contract, acknowledging a trust, and imposing duties on T. M., the maker. Its primary object and effect are, to secure to the grand-child, Stephen, of the elder Stephen Pace, the sum of money therein- described, together with its gains and accretions. To this extent, the instrument imposed obligations on T. M. Pace, as binding as if its form had been that of a promissory note; with the exception, that it conferred a discretion on him in its investment, which, in law, relieves him from accountability for any ioss, that does not result from his negligence or want of good faith. — McGehee v. Rumph, 37 Ala. 651; Lyon v. Foscue, 60 Ala. 468. [73] This, then, being a contract reduced to writing, parol evidence to vary its contents is inadmissible. — 1 Greenl. Ev. 275 ; 1 Brick. Dig. 865, §§ 866 et seq: The receipt given by T. M. Pace establishes three propositions clearly : first, that the money was received from Stephen Pace, senior ; second, that it was received “ in trust ” for Stephen Pace, minor, only living child of Stephen Pace, brother of T. M. Pace ; third,- that until Stephen, the minor, became of age, or married, this money was to be “ kept and used ” by T. M. Pace, for the benefit of the minor, to the best of the said T. M.’s ability. This paper, then, clearly shows from whom the money was received — that T. M. was created a trustee of this fund for Stephen, the minor and beneficiary, and that until the said minor became of age, or married, T. M. was to keep and use the money, to the best of his ability, for the benefit of said minor. There is no ambiguity or uncertainty in any of these clauses, unless it be as to which Stephen Pace the money proceeded from. The writing says it was from Stephen Pace, senior. The writing also declares the money was received “in trust for Stephen Pace, minor, my [his] brother Stephen Pace’s only living child.” Whether this statement indicates there are three persons each named Stephen Pace, or whether its meaning is that Stephen Pace, senior, and Stephen Pace, brother of T. M. Pace, the trustee, are one and the same, it is not necessary we should decide. That, at most, could indicate only that there was a latent ambiguity as to who was the donor of the fund, should that inquiry become material: the old familiar illustration, found in the books, of black-acre and white-acre. This would let in proof, should a material issue be raised upon it, as to which of the elder Stephens gave the money. The ambiguity would extend no farther, and the door for parol proof would be opened no wider. The trust charged on the conscience of T. M. Pace, its duration, and the beneficiary under the trust, are clearly expressed ; and parol proof can not be received to vary or contradict these stipulations. See the full discussion of this principle in Miller v. Travers, 8 Bing. 244. Although the paper was not signed by Stephen Pace senior, yet he accepted it as evidence, and the evidence, of the contract he made with T. M. Pace. He was as much bound by its terms as was T. M. Pace, who signed it. One who asserts title under a contract made with him, must take it, in the terms, and under the conditions expressed in it. The appellant, Boykin, is entitled to the money described in the pleadings. The decree of the chancellor is reversed, and this court proceeds to render the decree which the [74] chancellor should have rendered: It is ordered and decreed that the appellant, Boykin, is entitled to the money mentioned in the pleadings. It is further ordered, that of the money in the hands of the register, there be first paid one-half the costs of this suit incurred in the court below, but this not to include any part of the costs of appeal; the residue of said fund to be paid to said Boykin, or to his proper guardian, if he be still a minor. Let the other half of the costs in the court below, and the entire costs of appeal in that court and in this court, be paid by the administrator of Stephen Pace, the elder.