Barber v. Thompson

The opinion of the court was delivered by Barrett, J. The deed, the bond, and the mortgage, constitute a single, entire transaction. The deed conveyed the legal title to [226] Perry. The bond shows the character and purpose of the deed. The mortgage secures the fulfillment of such purpose. The purpose of the conveyance was, among other things, to give to Abigail Barber $400. The conveyance was made upon that consideration, in part; and Perry received and holds the title in virtue of his covenant to pay that sum to her by April 1, 1871. When the papers had been executed ahd delivered, the rights, duties, and liabilities of the respective parties, contemplated by the transaction and to be affected by it, were fixed and operative. As the result, said Abigail had the right to have the $400 paid to her on the day stipulated, and it was the duty of Perry to pay it. It was a right vested in her by the transaction. The father had put into his hands the property out of, and in consideration of which, said sum was to be paid, and Perry covenanted to pay it — that is, to appropriate that value of that property for that purpose. This constituted a trust in him, created and declared by the writings executed and delivered by and between the parties thereto. It was a completed transaction, with nothing left to be done in order to render it effectual for the purposes proposed. Nothing was left contingent, nothing discretionary, nothing provisional or conditional, so far as related to Abigail. This then answers the requirements of our statute as to trusts; and, at the same time, answers to the utmost requirements of the common and equity law of the subject as stated in the text books, and as applied and illustrated in the cases. Such a trust is as irrevocable as an executed gift. The right of the cestui que trust, after having become perfected and vested, cannot be invalidated or devested by the acts of the parties creating the trust. Nothing short of the act of the cestui is effectual as against such right So are all the authorities cited on both sides in the argument. The general doctrine is well stated by Bigelow, C. J., in Stone v. Hackett, 12 Gray, 227; Perry Trusts, s. 101 et seq. In section 104 it is said : “ If the voluntary trust is once perfectly created, and the relation of trustee and cestui que trust is once established, . it will be enforced, though the settlor has destroyed the deed, or has attempted to. revoke it by making a second voluntary settle [227] ment of the same property.” Section 105: Nor is notice to the cestui que trust, or to the trustee, and acceptance by him, essential to the validity of a voluntary trust, as against the settlor, if it is otherwise perfectly created. Eor the law of the subject controlling this case, see Hill Trustees, 52, 83, and notes. We refrain from repeating or discussing the established and familiar propositions of the law by which this case is embraced and controlled. In the deeds creating the trust, no power of revocation is reserved or contained. When the trust is not impeachable for other reasons, the lack of such power reserved has no effect even as evidence of mistake, provided there appears to have been the intent to make an irrevocable gift. In this case such an intent is fully manifest upon adequate and worthy motive, which does not appear in any manner to have failed. There is no circumstance nor incident indicating the existence of any ground known to the law for holding the trust invalid or revocable. We consider the case upon its own facts, and decide it accordingly, and do not indulge in speculation nor disquisition as to how we should decide it if it had been different from what it is. ‘ It is specially to be noted, that the attempted act of revocation consists in giving to Perry, the trustee, the amount that had been given by the deeds creating the trust, to Abigail, without any new consideration or apparent motive, that'is, making a voluntary gift to Perry of what had already been, by an effectual transaction, given to his sister. The point that is made, as to the provision in the condition of the bond for leaving to said Nelson and Mary the determination of any question that should arise between said Perry and either of said children, has no foundation. That provision had no relation to such questions as are involved in this case, viz., whether a trust was created so as to entitle a court of equity to give it effect — whether it was revocable — whether it has been revoked. Nothing of this kind could have been in mind by the parties to the transaction creating the trust, as is evident both from the nature of the subject and from the provision referred to. [228] Mandate. Decree reversed, cause remanded, for decree that said sum of $400, and interest on it from April 1, 1871, be paid to the orator by said Perry N. Thompson, on demand, and that it be made a charge on the real estate aforesaid till paid, and that the orator recover costs.