Gilkey v. Shepard

The opinion of the court was delivered by Redfield, J. Asa Aikens conveyed the premises in question to John W. Shepard in trust and for the uses, among others, “ to permit Mrs. Lucy Shepard, the mother of the said John W., to receive the rents and profits of said premises to her sole and separate use during her coverture with her present husband, and, after the termination of said coverture, to convey the same' to her during her life and the remainder to her children and their heirs forever.” The deed was .executed November 15, 1833. The defendant William Jones avers in his plea that he is' the only child and sole heir of Lucy Emeline Shepard, deceased, who was the daughter of the said Lucy Shepard ; that the said Lucy Emeline died the 8th day of July, 1849 ; that her mother, the said Lucy, died on the 27th of July, 1868 ; and that Titus V. Shepard, husband of said Lucy, died the 28th of August, 1862. At the time of the execution of the deed of trust, the sai'd Lucy Emeline was living. At the time of the death of the said Lucy, who had a life estate in the premises, the said Lucy Emeline had deceased, leaving the said William Jones her sole heir. Does Jones take the share that would have accrued to his mother if living at the time of the decease of the said Lucy ? There would seem no doubt that the grantor in this deed intended to carve out a particular estate for the benefit-and use of Lucy Shepard, the mother of the trustee, and convey the remainder to the children of the said Lucy and [550] their heirs in fee. The grantees of the estate were in esse and ascertained. The estate in remainder, or the right to the estate, depended upon no contingency. The time when they should enjoy it was to be determined by the duration of the life of her in whom was the particular prior estate. The fact of her death was certain ; the time, uncertain. The estate conveyed was the fee ; the grantees were the seven children of Lucy Shepard; and the estate was vested in them by the grant. And they took the estate by purchase and not by descent. The defendant William Jones, therefore, inherits from his mother her share in this estate. The Feudal System engrafted upon the common law of England a construction of deeds and conveyances of real estate that overruled the intention of the parties, and, in many cases, worked great injustice. But the doctrine of Shelly’s Case, 1 Co. 93, has been disregarded in England, see opinion of Lord Mansfield- in Doe v. Lansing, 2 Bur. 1100, and has never been followed in this State. Deeds, like other written instruments, should be so construed as to give effect and carry out the intention of the parties. And that rule now prevails in the courts of England, and in most of the States of the Union, with the exception of New Hampshire. See Hall v. Nute, 38 N. H. 422, and Hayes v. John, 41 N. H. 531. But these cases are sharply criticised by Mr. Washburn, 2 Washb. Real Prop. 228, note, and are not in accord with the general current of authorities, nor with the established rule in this State. Blake v. Stone, 27 Vt. 475; Smith v. Hastings, 29 Vt. 240. This, we think, must be the construction of this deed, although it may be conceded that the deed vested in the trustee the legal title to the premises. It is not claimed that the power given to the trustee by the ’deed to sell a portion or all of the estate for the purpose of paying the mortgage upon said premises, should make this a contingent, rather than a vested, remainder ; nor is it suggested that any mortgage existed that could defeat the estate in remainder at the time of the decease of the said Lucy Emeline. It is a settled principle in equity that the legal estate may exist in one and the entire equitable estate in another. Though the deed required the trustee to convey a life estate to the said Lucy at the termination of her coverture, and the re [551] mainder to her children in fee, and the trust, in that respect, was not executed, but executory, still, the trustee held the naked legal title to the use of those owning the equitable estate, subject to no contingency or discretion on his part. A distinguished equity writer defines a trust to be “ a right in the cestui que trust to take the profits of lands .whereof the legal title is vested in some other person, and to compel the person thus seised of the legal estate to execute such conveyances of the land as the person entitled to the profits shall direct.” And Mr. Sanders defines it to be “ a right on the part of the cestui que trust to receive the profits and dispose of the lands in equity.” The equitable estate vested in the mother and children in presentí, on the execution of the deed, though the enjoyment on the one part was in the future. If the trustee had refused to convey a life estate to the said Lucy on the termination of her coverture, it could not terminate or abridge her equitable right to the rents and profits during life; nor could such refusal defeat or delay the right in equity of the children to the remainder. Had all the children of said Lucy died before the mother — not an improbable thing in thirty years — then, by the doctrine contended for by the orators, the whole estate would have reverted to Judge Aikens and his heirs, an event, probably, that would have perverted the whole intent of the deed. The deed was evidently drawn by Judge Aikens, a most excellent lawyer, with thoughtful care. He wished to convey the beneficial enjoyment of the premises to the said Lucy during her life, and the remainder to her children and their heirs; and would have so conveyed directly, but for her coverture, which would have given the husband the right to the use of the premises during her life. Hence the necessity of a trustee to hold the legal title for her. The distinction made in the courts of England between a direction in the deed to the trustee to pay over the rents and profits, and to permit the life tenant to enjoy the rents and profits, was evidently in the mind of the draftsman. In the one case the trustee would hold the legal title, and not in the other. Broughton v. Langley, 2 Ld. Raym. 873; Leicester v. Briggs, 2 Taun. 109. We assume that all question as to the power given in the deed to the trustee to sell any part of the estate for the purpose of paying [552] the mortgage upon it, was at an end before the death of the said Lucy Emeline, and therefore hold that the fee of the premises and legal inheritance in equity was vested in the children of said Lucy at the time of the death of the said Lucy Emeline, and that her estate therein passed to her son, the defendant William Jones, The decree of the Court of Chancery is affirmed, and the cause is remanded.