Ridgway v. McCartney

Mr. Presiding Justice Waterman delivered the opinion op the Court. It is contended by counsel for appellee that the contract of 1872, because of the recital therein, that “ this agreement is made for the express purpose of carrying into effect, and supplementary to, a certain other, agreement and indenture, bearing date the 2d day of November, 1871,” etc., “ and is not intended and is not to be construed as conflicting with said last mentioned agreement,” did not change in any wise the rights of the parties to the respective contracts. The question in this regard presented to this court is not whether the agreement of 1872 diminished in any manner the amount of property passing to the life tenants and remaindermen. This is not a proceeding to enforce either the agreement made November 2, 1871, or that entered into November 19, 1872. The present suit is to enforce, through the medium of a court of equity, the obligations, not only of the principal, but of the sureties to certain bonds given by the trustee, selected to act under the agreement made November 2, 1871. The contest is as to the obligations of the sureties. When these bonds were made and the obligations of these sureties became fixed, the agreement of 1872 had not been made; consequently "with reference to it the sureties made no contract—entered into no undertaking of indemnity. If, therefore, the agreement of 1872 be valid, and if it in any way, without the consent of the sureties, modified the liability of the principal to such bonds, the sureties are absolutely discharged. Adams’ Equity, 106. We are not called upon to say whether, as between the parties to the two agreements or as respects the beneficiaries under either, one is variant from the other; the question is, were the duties, obligations or trusts of the trustee selected in pursuance of the contract of 1871, modified by the compact of 1872? That, providing the last agreement was valid, they were, the court below so found. Such finding is, in our opinion, manifestly sustained by an examination of the two instruments. We thus arrive at the principal question in dispute, viz.: Did the agreement of 1872 have such validity that it modified the duties, obligations or trusts of the trustee under the agreement of 1871 ? The parties to this agreement were the widow, one son and three daughters of Orval Pool, deceased, and the husbands, respectively, of each of the three daughters. The contract was by and between these parties; it was for their benefit and the benefit of the children of two of the daughters. For this agreement there was as between the parties who made it, a valuable consideration. Such consideration moved from the parties to it, and in no part from any of the beneficiaries by whom it was not signed. The decree of the Circuit Court contains therein the following recital as to the effect of the contract of November 2, 1871: “ The court further finds that on the 2d day of November, 1871, by virtue of the contract that day made and delivered by Marshall M. Pool, Augusta M. P. Townshend, Mary Pool Docker and Ellen P. Peeples, and set forth in the original bill herein, an equitable title on. one-fourth of the entire estate, real and personal, of which Orval Pool died seized, vested in each of said parties; and that by virtue of said contract, the one-fourth interest of said Mary Pool Docker, and of Ellen P. Peeples, respectively, in said entire estate, was limited to them during their respective lives, with remainder to their children; and that the parties thereto intended and did create an executed trust, * * * and that no contract made by said parties subsequent to the said contract of November 2, 1871, could in any manner affect the rights of the owners of the estate in remainder in the estate of Orval Pool, deceased.” Whatever was given by the contract of 1871 to the children of Mary Pool Docker and Ellen Pool Peeples, respectively, was a gift to said children; a gift which the parties to the agreement agreed among themselves should be made. Such agreement being made as between the respective donors, upon a good and valuable consideration, could, as between them, have been enforced. Tet it was none the less to the children of Mary and Ellen a gift; such children gave nothing, promised nothing, suffered nothing for the contract under which it was agreed that they should share in the estate of their grandfather. The present suit is, as we have said, not to enforce the contract of 1871; the validity of that agreement is not in dispute. We are rather asked to say what was the effect upon the agreement of 1871, of the contract of 1872, in which all the parties to the first compact joined. It is well settled that a court of chancery will not enforce an uncompleted gift. Badgley et al. v. Votrain, 68 Ill. 25; Adams’ Equity, 79; Tiffany & Bullard on Trusts and Trustees, 37; Wadhams v. Gay, 73 Ill. 415-431, 432. A gift can only be effectual after the intention to make it has been followed by actual delivery of possession or some equivalent act. Bispham’s Equity, 66, 5th Ed. Was the gift contemplated by the contract of 1871 so far completed that it could not be revoked by the agreement of all the parties to that compact % To constitute a gift inter vivos the rule is universal that everything necessary to a complete transfer of the title of the donor must have been made. Yolunteers have, as against a mere donor, no equity. Tiffany & Bullard on Trusts and Trustees, 501. So long as a gift is incomplete there is a locus jooenitentiae. Wadhams v. Gay, 73 Ill. 415-432. A true and proper gift or grant is always accompanied with delivery of possession and takes effect immediately. Bispham’s Equity, 66. A court of equity will, at the suit of volunteers, enforce trusts created for their benefit, but it will not complete imperfect gifts, or compel specific performance of promises made without consideration. Lewin on Trusts, 69-75; Jones v. Lock, 1 Ch. App. 28; Vaizey on Settlements, Vol. 1, 92; Adams’ Equity, 80. Where the owner and holder of the legal title to property, by a formal declaration of trust, which purports to be and is a complete transaction, assumes the character of trustee of such property, for the benefit of those to whom he gives it and whom he thus makes cestuis que trust of the same, a court of equity will enforce the trust. Meek v. Kettelwill, 1 Hare 464; Adams’ Equity, 80; Lewin on Trusts, 67. The distinction between such declaration of trust and a mere statement that the donor gives, sets apart or settles property upon another, is obvious. The legal title being in him, the donor has to complete his gift, but to declare that he holds the property in trust for another to whom he gives the use. A perfected trust is thus created; but if the owner do merely declare that he gives, sets apart and settles, without making delivery of possession or transfer of title, no trust is created; in order to perfect a trust it is necessary that he do more; that he surrender possession, or in an appropriate manner transfer the legal title to some one who is to hold it for the donee. A mere intention to give or transfer does not amount to a transfer, neither does it create a trust. Nilroy v. Lord, 4 De G., F. & J. 264; Vaizey’s Law of Settlements, Vol. 1, 93-145; Beach v. Keep, 18 Beavan, 285; Bridge v. Bridge, 16 Beavan, 315; In re D. Angiban, 15 Ch. Div. 228-242; Jeffreys v. Jeffreys, 1 Cr. & Ph. 138; Colyear v. Countess of Mulgrave, 2 Kean, 82; Young v. Young, 80 N. Y. 422. In the present case it appears that when the agreement of 1871 was made, by the will of Orval Pool certain lands of the value of over 89,000' had been devised to Ellen Pool Peeples and Mary Pool Docker for life, remainder to their children. The interest of such children in these lands could not be and was not affected by either agreement. Keither could the wife and children of Orval Pool constitute George Potter trustee of the interest in remainder of the children of Mary Peeples and Ellen Docker. The estate of Orval Pool, deceased, to arrange for an equal division of which the agreement of 1871 was made, consisted principally of real estate and bank stock. FI o attempt was made by this agreement to transfer the title to any portion of the estate. The title remained, after as before the agreement, where the will of Orval Pool had placed it. The agreement contemplated the appointment of a trustee and the conveyance to him within a reasonable time of the interest of Mary Pool Docker and Ellen Pool Peeples in the moneys, personal property and proceeds of real estate that might be converted into money as provided in the agreement. The trustee was to have power, and it was made his duty to convert into money enough of the lands of the estate to equalize the shares of the children of Orval Pool in his estate, but the title to the property was not placed in the trustee or conveyed at all; on the contrary the agreement provides that Marshall M. Pool and Augusta M. Pool Townshend shall join with the trustee in the conveyance of lands by him sold. It is manifest, that except by conveyance and assignment by Marshall M. Pool and Augusta M. Pool Townshend, the trustee could not obtain and so hold for the benefit of Ellen Pool People's and Mary Pool Docker or their children, the estate which, under the agreement, they were to have. If, after the making of the agreement, the two children of Orval Pool to whom the bulk of the estate was devised, had refused to go on with the arrangement, only by the aid of a court of equity, compelling conveyance and assignment, could Mary and Ellen have obtained the equal shares which under the contract they were to have ? We have, then, here, an incomplete and imperfect gift by the widow and four children of Orval Pool to the children of Mrs. Peeples and Mrs. Docker; a contract made which was reversible by those by whom it was entered into. It was therefore competent for the parties to, as they did, in 1872, make a new agreement changing the duties and trusts of the trustee who had been selected, and for Avhom appellants had become bound. The effect of this was to discharge the sureties, who had undertaken for the conduct only of the trustees under the trusts imposed by the arrangement made in 1871. The decree of the Circuit Court is reversed and the bill dismissed as to the appellants.