Johnson's Adm'r v. Billups

G-RKEN, Judge : The appellants’ counsel have argued this cause, as though Hiram W. Johnson’s and his wife’s rights were based solely on the deed made by them to their son and daughter on August• 25, 1848. And it is insisted that by this deed they had hut a right to live in their residence on the farm conveyed, and — 692 — to get for themselves a support out of the land; that they retained in the land a species of life-estate. That they had a right to live in their residence on the farm during their life is plain; but this utterly undefined right on their part to get a living out of the farm by the cultivation of an entirely undefined portion of the land seems tome to beamoststraine'd and- unnatural construction of the language of this deed. TIow does it consist with the express declaration that “ John W. Johnson, the son, was to have the use of the farm for five years ?” To my mind it is utterly irreconcilable therewith. The deed conveys the farm to the son and daughter; and the concluding claim of the deed shows, that they were to have an equal interest in it. This deed then declaring that the son was to have the use of the farm for five years “for half of what, is raised” means, it seems to me, that he is to be regarded as a renter of his sister’s interest in the land, paying for one half of the crops raised on her moiety of the land for the first five years; and they, the brother and sister, were to permit their parents, the grantors of the land, to reside in their residence on the farm, and were to furnish them a support during their lives. This deed -containing these agreements was signed by all the partiés. The deed is, it is true, obscurely written, but this seems to mo to be its true interpretation, when all portions of the deed are looked at and considered together. • But its true interpretation, it seems to me, is unimportant in this case. Bor on September 9, 1860, part of this tracto! land (one hundred and twenty-five acres) was conveyed for the consideration of five hundred dollars to the defendant, Samuel L. Billups and his heirs forever, with general warranty of title, but upon this express trust, that this one hundred and twenty-five acres so conveyed was to be “subject, however, to half the support of Hiram W. Johnson and his wife during their natural lives, and which is to be attached to the land as a lien upon the land.” This language seems to me to be abundantly clear in its meaning; but as if to remove any possible doubt, it is afterwards declared, that this land is “conveyed subject however to the lien as above intended to be created.” This deed creates an executed trust;- and by its terms Samuel L. Billups as trustee was to hold — 693 — this land upon trust to furnish out of its proceeds half the support of Hiram W. Johnson and his wife during their natural lives. It is said however that they were not parties to this arrangement or deed, and that 8. L. Billups made no contract or arrangement with them. This is true; but what difference does this make so far as it created an express trust on this land? "What is more common than for a deed of trust to provide for cestuis que trust not pai’ties to the deed, and who may be utterly ignorant that the deed was made for their benefit? But who ever questioned the right of the cestuis que trust to enforce out of the land conveyed the moneys secured to them. The trust being an executed trust is in no manner affected by the cestuis que trust being no party to the ' deed containing it or by their being ignorant at the time of its execution that such a deed of trust was made. It is claimed however that this trust is too vague to be executed. ’Wherein consists its vagueness? The persons who are to be cestuis que trust are expressly named, “Hiram W. Johnson and his wife” — But it is claimed that the amount, tor which they are to have a lien, is utterly indefinite. It was to be an amount sufficient to provide “half of their support during their natural lives.” It is claimed, that this amount cannot be determined, as it would depend entirely on their style of living and dressing. But the natural, nay the necessary, construction of this language is half the amount necessary to support them in the style of living suitable and proper to their position in life. Cannot this be ascertained? The commissioner in this case has done so with but little difficulty. He 'has estimated their entire support at one hundred and seventy dollars a year or eighty-five dollars for the support of each of them. And this estimate of his was so satisfactory to all persons interested, that there was no exception or objection thereto by any one. Certainly, it seems to me, the appellant cannot complain of this estimate. It was obviously put at the least possible amount, whereby they could' be furnished food and clothing of the plainest and most ordinary character. That a trust to support a grantor and his wife is sufficiently definite to be enforced hag been in effect decided by — 694 — this Court in Graham et al. v. Graham et al., 10 W. Va. 386, where the Court expressed the opinion, that in a certain conveyance of land directed to be made there should be reserved “ a lieu on said land in favor ol Rebecca Graham tor and to secure her support in a comfortable manner during her life with leave to the said Rebecca Graham to apply to the court by petition or bill to enforce said lien from time to time as to the court iu the exercise of a sound discretion may seem just and equitable.” The trust which this Court directed to be inserted in a deed is almost the same as that created by this deed to Samuel L. Billups. The words added to her support in the deed directed to be made by this Court, that is “ in a comfortable manner,” renders the trust no more definite than it would be without them. For what, is “ a comfortable manner of living” depends entirely upon the style in which the person has been accustomed to live; and whether these words were added or not,- either deed must be considered as imposing a trust to furnish a support suitable to the condition in life of the party to be supported. In the case of McCartney et ux. v. Bolyard et ux., 22 W. Va. 641, a revocation of a deed, in which was a promise to support and maintain the plaintiffs in their dwelling-house on the farm conveyed, was asked and refused, the allegations of the bill not being sustained; but this Court gave no intimation, that the trust was void for uncertainty. It is claimed in the case before us, that the trust imposed on Billups was to support Iliram "W. Johnson and his wife in a house on this tract, of one hundred and twenty-five acres conveyed to him. There is nothing of the sort to be found in the deed to Billups, which created this express trust. Though in the original deed made in 1848 by II. W. Johnson of the entire tract of land it was provided, that II. W. Johnson and his wife were to live in their residence on this farm, that is, as I suppose, if they chose so to do. But whatever be its meaning, this provision was not inserted in the deed to the defendant Billups, which contains the express trust .sought to be enforced in this suit. In fact there is no evidence to show, that this residence was on the one hundred and twenty-five acres sold and conveyed to Billups. This might perhaps be inferred from the answer of Billups; but it — 695 — was replied to generally, and there was no evidence to support this implied allegation. Uor is there any evidence to show when Hiram W. Johnson and his wife left this residence. Jane Johnson, the wife, died January 1871, and her husband Hiram "W. Johnson in March or April 1875. At the death of Jane Johnson according to the commissioner’s report there was due of the oue half of the support, which should have heen furnished by the defendant Billups to Hiram W. Johnson and wife, five hundred and sixty-six dollars and sixty-six cents; and of the one half of the support, -which should have heen furnished by him to Hiram W. Johnson after his wife’s death there was at the time of the commissioner’s report, March 1, 1875, probably but a few days or weeks before the death of Hiram ~W. Johnson, due the sum of oue hundred and eighty-seven' dollars and eight cents. The court by its decree of October 27, 1876, decreed that this five hundred and sixty-six dollars and sixty-six cents should be paid to the administrator of Jane Johnson, and the one hundred and eighty-seven dollars and eight cents should he paid to the administrator of Hiram "W". Johnson. And each of these amounts was to draw' interest from the date of the decree. Both these amounts should have heen declared to be'liens on this tract of one hundred and twenty-five acres conveyed to the defendant, Billups; but there should have been no personal decree against him, he not having contracted to pay them, but having only taken the land with these sums charged upon it by his deed. The aggregate of these sums (seven hundred and fifty-three dollars and seveuty-four cents) should not have borne interest from the date of decree, October 27, 1876; but five hundred and sixty-six dollars and sixty-six cents thereof should have borne interest from the death of Jane Johnson, January 1, 1871, and the residue from March 1, 1875, the date of the report, the commissioner’s report having been confirmed and showing that they were due at those dates. The commissioner should have regarded the one half of the support of these old people not paid by Billups as due at the end of each successive year, for which Billups was in default, and should have been charged interest accordingly, -which would — 696 — have increased the amount due considerably. But as the commissioner did not do so, and there was no exception 'to his report, the court should have decreed as above indicated, which is in accordance with his report. The only error committed against the appellant was that a personal decree was improperly rendered against him. But it was alleged in the bill and not denied, that he was insolvent and had lett the State; and, so tar as the proof goes, it rather sustains the allegations at least to the extent that he had long since left the State and was a non-resident. Ilis laud according to the evidence is sufficient to pay this lien upon it; and this error of the circuit court does not appear to be one, which would be probably injurious to him. While the error in his favor, which the circuit court committed in fixing the lien on his land at considerably less than it really was, is obviously prejudicial to the appellee, the administrator of Hiram W. Johnson. I am therefore of opinion that though this decree of October 27,1876, must be reversed and a decree entered according to the preceding views, yet the appellant is not the parly substantially prevailing, and therefore, though this decree is reversed, there must be a decree for the costs incurred by the appellees against him the appellant. A decree will be entered in accordance with these views. REVERSED.