McCartney v. Ridgway

Mr. Justice Magruder delivered the opinion of the court: The original bill herein filed by one of the owners of the estate in remainder, and the cross-bill filed by the life tenants and the present trustee, seek to charge the administrator of the deceased trustee and the sureties on his bond with what is alleged to be due upon an accounting from the estate of said deceased trustee. The only defendants below, who appealed from the decree of the circuit court, were the sureties upon said bond. The bill here is not a bill to enforce either of the agreements set forth in the record; nor is this a controversy between the parties to those agreements as to the proper construction to be given to either of them. The real dispute is between the remainder-men and the life tenants on one side, and the sureties upon the bond of the deceased trustee on the other side, as to whether such sureties should be held liable for what may be due from said trustee or his estate. The question is, whether the trustee who was the principal in the bond, and the parties to the agreement, the performance of which was secured by the bond, entered into any agreement which so changed the duties and obligations of the trustee, or the terms of the trust imposed upon him, as to release the sureties from their liability upon the bond. The bond, which was executed on May 15, 1871, recites that the obligees therein, to-wit: the widow, and son, and three daughters of Orval Pool, and the husbands of said daughters, did, on November 2, 1871, execute a certain instrument in writing, providing for a division of the estate of said Orval and the appointment of a trustee to execute and carry into effect certain duties and trusts therein created and defined, and that George H. Potter had been duly appointed trustee under the provisions of said instrument in writing. The condition of the bond is, that Potter shall discharge the trust imposed by the agreement of November 2, 1871, and perform such duties “as may be now or hereafter imposed upon him by or otherwise arise” under said last named agreement, and pay over and account for all moneys and property coming to his hands as such trustee “at such times and in such manner as is provided for” in said agreement of 1871. After the execution of the bond of May 15,1871, to-wit: on November 19, 1872, the same parties who signed the agreement of November 2, 1871, to-wit: the widow, and son, and daughters of Orval Pool, and the husbands of the latter, together with Potter, the trustee, executed h new agreement. Thereafter Potter performed his duties as trustee, and managed the interests of the trust, under and in accordance with the provisions of the new agreement of November, 1872, or, if not wholly under the latter agreement, certainly under the latter agreement in connection with the agreement of November, 1871. Inasmuch as the obligations of the bond were based upon the agreement of 1871, it becomes important to inquire whether the new agreement of 1872 produced such changes in the duties and obligations of the trustee, or in the terms and conditions of the trust as fixed by the agreement of 1871, that the sureties can be said to have been released from their liability on the bond. Whether or not such a change was wrought can only be determined by a comparison of the terms and conditions of the one agreement with those of the other. A preliminary question, however, arises as to the nature of the interests of the' remainder-men mentioned in the agreement of 1871 thereunder, and whether the parties executing the agreement of 1872 had any power to change the agreement of 1871 so far as the latter agreement had reference to the children of Mary Pool Docker and Ellen Pool Peeples. The shares of said Mary and Ellen were to be limited to them during their lifetime and at their decease to descend to their children, etc. The children or remainder-men did not sign either contract. It is not denied, that the widow and son and daughters and sons-in-law of Orval Pool, who signed the agreement of 1871, had the power to change it by a subsequent agreement so' far as it affected themselves or their own interests; but it is claimed on the part of the appellants, that the parties so signing the agreement of 1871 could not change it so as to affect the interests of the remainder-men, and that, this being so, there was no change wrought by the agreement of 1872 which could release the liability of the sureties to the remainder-men. As a reason for the contention that the later contract did not change the earlier one so far as the interests of the remainder-men are concerned, it is urged that, by the contract of 1871, the children of Mrs. Docker and Mrs. Peeples were equitable owners of one-half of the estate subject to the life estates of their mothers, and had the right to have the trust created exactly as proposed in the contract of 1871, and to have the trustee’s liability to them measured by that contract. On the part of the appellees it is claimed, that the agreement of 1871 created an incomplete, voluntary trust, and that, therefore, it was within the power of the signers of the agreement to change it by a subsequent one. A court of equity will not aid a mere volunteer to carry into effect an imperfect gift, or an executory trust. But where a voluntary trust upon a meritorious consideration has been perfectly created, it is irrevocable and may be enforced in equity. Whether a trust has been perfectly created is largely a question of fact in each case. (27 Am. & Eng. Ency. of Law, pp. 11,12; Perry on Trusts, sec. 99). Hence, it may be well to examine the terms of the agreement of 1871 with reference to the question whether it provides for an executed or an executory trust. The will of Orval Pool, having devised certain lands worth about §9041.33 to his daughters, Mrs. Docker and Mis. Peeples, for life with remainder over to their children, vested the title to these lands in remainder in said children, and, of course, their interests in remainder therein could not be and were not affected by the agreements of 1871 and 1872, to which they were not parties. All the rest of the property having been devised to M. M. Pool and Mrs. Townshend, the title thereto was held by them when the agreement of 1871 was made. That agreement makes no declaration, that M. M. Pool and Mrs. Townshend hold such title for the benefit of their sisters or of the children of their sisters, nor does it transfer or convey any of the property of the estate to a trustee for their benefit. It is executory in its character. (Pool v. Docker, 92 Ill. 501). It names no trustee, but provides for the selection of one by the parties, and, in case of their failure to select, for the appointment of a trustee by a judge of the circuit court of Gallatin county. It further provides, that the interest of Mrs. Docker and Mrs. Peeples “in the moneys, personal property and proceeds of real estate that maybe converted into money,” as therein directed, “shall, within a reasonable time, by a proper and suitable conveyance or conveyances, be conveyed and transferred to” the trustee so to be appointed. Nothing is presently conveyed to the trustee, but thereafter, in the future, moneys, personal property and, not real estate, but the proceeds of real estate to be converted into money, are to be conveyed to the trustee. While it is true, that there was a good and valuable consideration for the agreement of 1871 as between the parties who signed it,, so that it could be enforced in equity as between them, yet no consideration for that agreement moved from the children of Mrs. Docker and Mrs. Peeples. The provision therein made for them was consequently a gift, and not a present gift, but a gift which, the parties agreed among themselves, should be made thereafter. So far as the land was concerned, the trust was indefinite and uncertain, and, not only so, but it was incomplete, because it was impossible to tell, when the agreement of 1871 was made, what lands would go into the trust estate. The agreement shows ■ that the estate of Orval Pool owned 1710 shares of bank stock, shown by the evidence to be worth $189,810.00, or $111.00 per share; that M. M. Pool and Mrs. Townshend were to retain 1310 shares, or $145,410.00, and 400 shares or $44,400.00 were to be conveyed to the trustee for the use of Mrs. Docker and Mrs. Peeples, the income to be paid to them and the principal to be kept for their children; and that the trustee was to sell and convert into money so much of the lands as might be necessary to equalize the interest of Mrs. Docker and Mrs. Peeples with the interest of M. M. Pool and Mrs. Townshend in the shares of said bank stock. M. M. Pool and Mrs. Townshend were to join the trustee in executing deeds to the purchasers of the lands. When sales enough should be made to raise the amount necessary to equalize the interests in the bank stock, M. M. Pool and Mrs. Townshend were to convey the residue of such lands to the trustee, whenever requested by Mrs. Docker and Mrs. Peeples; and the trustee was to hold them, or to sell them and invest the proceeds, as provided in the agreement. The agreement provides for no conveyance to the trustee of the lands to be sold. The title remained in M. M. Pool and Mrs. Townshend until sales enough were effected to accomplish the equalization; and the trustee was a mere agent to make the sales. (Pool v. Potter, 63 Ill. 533). It is manifest that, by the terms of the agreement of 1871, the children or remainder-men were mere volunteers. The principle is well settled, that a court of equity will not lend its aid to establish a trust at the instance of mere volunteers. If the transaction, on which the voluntary trust is attempted to be established, is still executory or incomplete, the court will decline all interference in the matter. Where there is only a voluntary agreement for the creation of a trust, a court of equity will not regard the agreement as binding so long as it remains executory. An executory trust is one which is not fully and finally declared, but requires some other act or acts in order to perfect it and carry out the intention of the settlor, while an executed trust is one fully and finally declared by the person creating it, so that nothing further remains to be done in order to make it effective. (Clarke v. Lott, 11 Ill. 105; Badgley v. Votrain, 68 id. 25; Padfield v. Padfield, id. 210; Barnum v. Reed, 136 id. 388; 27 Am. & Eng. Ency. of Law, p. 11). Before an executed and fully created trust could arise under the agreement of 1871 in favor of the children of Mrs. Docker and Mrs. Peeples, it was necessary, that there should be transferred or conveyed to a trustee to be thereafter appointed money and personal property and the proceeds of sales of land thereafter to be made. To constitute a valid gift inter vivos, possession and title must pass to and vest in the donee, or in a trustee for the donee. If anything remains to be done to complete the gift, what so remains to be done cannot be enforced, as it is based upon no consideration; and when the gift is thus incomplete, there is a locus poenitentice, and the gift may be revoked. Where the alleged gift is of a legal estate capable of legal conveyance, and no conveyance is made, the gift is revocable. (Barnum v. Reed, supra; Wadhams v. Gay, 73 Ill. 415; 8 Am. & Eng. Ency. of Law, pp. 1313-1318; Telford v. Patton, 144 Ill. 611). A gift inter vivos cannot be made to take effect in possession in futuro; nor will equity interpose to perfect a defective gift or voluntary settlement made without consideration; nor can equity convert an imperfect gift into a declaration of trust merely on account of that imperfection. (Young v. Young, 80 N. Y. 422). In order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, it was necessary to do in order to transfer the property and make the settlement binding upon him; and such a settlement may be effectual by transferring the property to the persons for whom he intends to provide, or by transferring it to a trustee for the purposes of the settlement, or by declaring that he himself holds it in trust for those purposes. If it is intended to effectuate the settlement by one of these modes, the court will not give effect to it by applying another of them. If it is intended that the settlement shall take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, because it would thereby convert an imperfect instrument into a perfect trust. Where the instrument contemplates that there shall be a transfer of the property to a trustee, the relation of trustee and cestui que trust does not arise until such transfer is made. Uptil then the person, for whose benefit the voluntary settlement is made, takes no estate in the property and cannot enforce the agreement to make the gift, or compel the alienation to the trustee. Before the alienation to the trustee, the gift is an imperfect one, and a court of equity will not interfere to complete it. (Milroy v. Lord, 4 DeG., F. & J. 264; Bridge v. Bridge, 16 Beav. 315 ; Beech v. Keep, 18 id. 285 ; Colyear v. Countess of Mulgrave, 2 Keen, 82; 1 Vaizy’s Law of Settlements, pp. 93, 140, 143, 145; Jeffreys v. Jeffries, 1 Craig & Phil. 138; In re D’Augiban, L. R. 15 Ch. Div. 228). Now, the evident purpose of the agreement of 1871 was, that the interest which was to go to the children should be settled upon them by a transfer of the property to a trustee, who was to hold it upon trust. A transfer to a trustee was that particular one of the three modes above specified, by which, under the agreement of 1871, the settlement upon the children was to be made effectual. It cannot be held, therefore, that it can be made effectual by construing the agreement as amounting to a declaration of trust by the signers of it. A complete voluntary trust is clearly distinguishable from a voluntary contract to create a trust. We do not think, that it was the intention of M. M. Pool and Mrs. Townshend to constitute themselves trustees of the fund to be settled npon the remainder-men. Their intention was, that the trust should be vested in the trustee to be thereafter selected either by the parties or by a judge. Until the propert3>- was transferred to such trustee, the instrument, so far as the children were concerned, was an imperfect gift, or voluntary settlement without consideration, which the beneficiaries themselves, being mere volunteers, could not enforce against the settlors or signers of the agreement, and which the latter were at liberty to revoke or change. “When two persons, for valuable consideration between themselves, covenant to do some act for the benefit of a mere stranger, that stranger has not a right to enforce the covenant against the two, although each one might as against the other.” (1 Vaizy’s Law of Sett. p. 143). “Where the obligation to do what ought to be done is not an absolute duty, but only an obligation arising from contract, that which ought to be done is only treated as done in favor of some person entitled to enforce the contract against the person liable to perform it.” (Id. p. 145). Here, any one of the signers of the agreement of 1871 could insist on the proposed transfer of the property to the trustee in order to make the proposed gift, but no right vested in the proposed remainder-men until such transfer was made. Whenever any part of the property was conveyed to the trustee, an equitable estate in remainder therein vested in the children, and, as to that, the power of the settlors to make a change by contract was gone. As to property not conveyed to the trustee, the parties were at liberty to make a new contract. There is some proof tending to show, that the 400 shares of bank stock above mentioned were delivered to the trustee before the execution of the agreement of November 19, 1872. It does not appear, however, that there was an actual transfer of the stock upon the books of the bank prior to that time. In Milroy v. Lord, supra, it was held, that, where bank shares were transferable only by entry in the books of the bank, and no such transfer was made to the trustee in a voluntary settlement like that here under consideration, the gift remained uncompleted and imperfect. But even if it be conceded, that the 400 shares came to the hands of the trustee by a proper transfer before the second agreement was made, we understand that no loss was sustained as to this stock, and that no default in relation thereto is embraced in the amount found against the sureties by the decree below. We cannot subscribe to the theory, that the agreement of 1871 is to be regarded as creating the relation of vendor and vendee between the signers of that agreement, or some of them, and the proposed remainder-men, and that a relation of trust was thereby created upon the theory that, in equity, the vendors are trustees of the land for the purchasers and the vendees are trustees of the purchase money for the sellers. The doctrine thus invoked has no application here, for the reason, among other reasons, that a sale implies a consideration, whereas, here, there was no consideration as between either or any of the signers and the children. It being established, that the parties to the agreement of 1871 had the power to change it by a new agreement, both as to their own interests and as to the interests therein proposed to be vested, through a trustee, in the children of Mrs. Docker and Mrs. Peeples, the question again recurs, whether the agreement of 1872 made such changes in that of 1871 as had the effect of releasing the sureties on the bond. The undertaking of a surety is to receive a strict interpretation. (Chicago and Alton Railroad Co. v. Higgins, 58 Ill. 128). He is'not to be held beyond the precise terms of-his contract. His liability is strictissimi juris and can not be extended by construction. Where the term of an officer is for a definite and fixed period, the surety is only liable for the faithful performance of his duties during that period. (People v. Toomey, 122 Ill. 308). The extent of his liability must be embraced in the obligation or contract. (Phillips v. Singer Manf. Co. 88 Ill. 305). If a creditor, by a valid and binding agreement, without the assent of the surety, gives further time for payment to the principal, the surety is discharged, both in law and equity, whether the surety is thereby actually damnified or not. (Dodgson v. Henderson, 113 Ill. 360). Where a party gives a bond with sureties conditioned for his faithful performance of a written contract, the sureties will not be liable for the default of their principal to perform any duty or obligation arising out of a contract not fairly within the provisions of the written contract which the bond was given to secure. (Burlington Ins. Co. v. Johnson, 120 Ill. 622). Sureties have a right to prescribe the terms and condition's upon which they will assume a responsibility, and no person-has a right to change those terms. (Ryan v. Trustees, 14 Ill. 20). It is a general rule, that any agreement between the principal and the party secured, essentially varying the terms of the contract by which the surety is bound, without the consent of the surety, will release him from responsibility. (2 Brandt on Suretyship and Guar. sec. 378; Gardiner v. Hartback, 21 Ill. 128; Trotter v. Strong, 63 id. 272; United States v. Corwine, 1 Bond, 339). If the duties, which the principal is to pe.rform are varied by agreement between the principal and obligee, after the surety for the conduct of the principal has become bound, such surety will generally be thereby discharged. Any dealings between the principal and obligee, amounting to a departure from the contract by which the surety is bound, and materially varying or enlarging his liabilities without his consent, will, generally operate to discharge him. The same result will follow, as a general thing, where the principal acts in another office or capacity from that designated in the contract of suretyship, or where his responsibilities in the same office are increased. o(Brandt on Suretyship and Guar. secs. 393, 397; People v. Seelye, 146 Ill. 189; 24 Am. & Eng. Ency. of Law, p. 759). It is difficult to see how an application of these well settled principles to the facts of this case can lead to any other result than a discharge of the sureties upon Potter’s bond. By the agreement of 1871 it was made the duty of the trustee “to sell and convert into money as soon as the same can be conveniently done without sacrifice, so much of said lands and real estate,” as may be necessary to equalize the interests already mentioned, and to invest the money raised by such sales and pay over the interest thereon, as therein directed, and subject to the conditions therein specified. He is thereby authorized to make such sales either at public or private sale, or for cash or on. credit, “as he may deem best,” subject to certain provisions as to giving notice. In case of sales on time, no credit is to be given'for a longer time than one year except with the consent of the parties. Purchasers are to secure the purchase money by mortgages and notes drawing ten per cent interest, and, where the cash payment is less than one-third, the note is to have a surety. The trustee can make no private sale without the consent of M. M. Pool, Mrs. Townshend, Mrs. Docker and Mrs. Peeples. Prom these provisions it is manifest that, by the agreement of 1871, the trustee could exercise a reasonable degree of discretion in the matter of making sales both as to the time and mode of making them, and that the intention of the agreement was to make such sales, as would equalize the interests, as rapidly as could be done without sacrifice. The agreement of 1872 provided, that the trustee should make no public sale of any of the lands for a period of one year from November 19, 1872, without the written consent of the parties to the agreement of 1872; and that he should make no private sales at any time without the written consent of such parties; and that he should only perform such services in procuring and com-, pleting such sales as the parties thereto might deem necessary. By the second agreement the time, within which the trustee was required to make public sales, was necessarily extended, and he was robbed substantially of all right to exercise any judgment or discretion about any of the sales. By the first agreement he could make private sales with the consent of the son and three daughters of the testator; by the second, he could not make iirivate sales without the consent of the son and three daughters and widow and three sons-in-law of the testator. By the first agreement he could make public sales as soon as could .be conveniently done without sacrifice; by the second, he could not make public sales for a year from November, 1872, without the consent of the seven persons last named; and, in fact, he could procure no sales, either public or private, except so far as said seven persons should deem necessary. The sureties contracted, that they would be liable for the judgment and skill of a trustee; they are sought to be held liable for transactions controlled entirely by the judgment and skill of seven persons acting independently of the trustee. By their bond they contracted, that the trustee would account for and pay over all moneys and property, which might come into his hands as such trustee “at such times and in such manner as is provided for in said instrument,” that is to say, in the agreement of 1871. But the “times” and “manner” specified in the agreement of 1871 were materially altered by the agreement of 1872. By the latter agreement, the duties of the trustee were changed, and his responsibilities were increased. These changes not only affected the character and duration of his duties, but the amount and kind of property of which he was to have the care, and the times when said property should come to his hands. We cannot stop to point out all these changes. They can be easily ascertained by a study and comparison of the terms of the two agreements, as they are set out in the statement which precedes this opinion. The agreement of 1872 put it in the power of the seven persons above named to postpone the completion of the trust, to delay the transfer of the trust property to the possession and control of the trustee, and to hinder the trustee in his management of the trust. As a necessary result, sales and investments, which, under the first agreement, were to be accomplished within a conveniently reasonable time, were not effected for many years. The evidence shows, that it was not until 1886, fourteen years after the second agreement was made, that enough land had been sold to equalize the interests in the bank stock. Many other points are ably discussed by counsel in their arguments, but we deem it unnecessary to comment upon them, as the views already expressed are deemed sufficient to dispose of the case. The judgment of the Appellate Court is affirmed. Judgment affirmed.