Steele v. Lowry

By the Court: It is said, that delivery js either actual, by doing something and saying nothing, or verbally, by saying something and doing nothing; or it may be, by both. So a deed may be delivered by him who makes it, or by any person of his appointment or authority precedent, or assent, or agreement subsequent. Shep. Tóu. 55. A deed delivered in trust, for the grantee, is sufficient. 2 Mass. 449. If a deed is read *and not formally delivered, but left in the same place, this is a delivery in law. Crok. Eiiz., Co. Lit. 360. Here the grantee had consented to accept the trust, and the grantor with the knowledge, consent, and approbation of her intended husband, executed the deed, and directed it to be recorded and delivered. The testimony leaves no doubt of the delivery according to the. strictest formalities of the common law. 1 Johns. ,Ch. 250. This deed passed the entire estate to the trustee, for the benefit of the issue of the intended marriage, and for want of issue, then to the heirs general of the grantor, reserving the use of the personal property, and a discretion in the donor, as to the time of the sale of the estate. The reservation of power was to direct the sale, whenever, in her opinion, a reasonable price could be obtained. The terms of the reservation would probably embrace the whole estate, both real and personal. The principal object was to turn the pei’sonal into real estate, for the proceeds were to be invested m lands in this state. This discretion was a mere division of the trusts for the more effectual security of the issue. Where there is a clear intention that a person shall take, and the mode only is left to the party, that is a trust, which shall never fail by non-execution, or inability -of the trustee to exercise it. Brown v. Higgs, 5 Ves. 495. It would be most unreasonable that the cestui que use should lose the whole estate, because the discretion of directing the time of sale was prevented by the death of the trustee. If the principle should he admitted that there was a resulting trust, by the nonsvppointment of the grantor, the effect would be a distribution of the estate among the heirs general of Sophia Lowry, expressly contrary to her intention. She has declared, in her deed, this [68] distribution shall not take place, unless she should die without further issue. The case of Cook v. Brooking, 2 Ves. 51, was very much like the one under consideration. Mallock devised fifteen hundred pounds to S. and J. Snow, to be disposed of upon secret trusts, revealed to S. Snow, who declaring in writing, they should', of the profits, maintain the testator’s daughter, Anno, then married, and in case she should survive her husband, she was to have the whole sum; but, in case she died in the lifetime of her husband, then the fifteen hundred ^pounds were to go to his daughter L. in such shares and proportions as Anne should advise. Anne died in the lifetime of her husband, and made ho appointment. The court held that this was not a resulting trust, and distributed the money amongst the children of L. per stirpes. Whether we consult the obvious intention of the donor, or the principles of law applicable to the case, the result is the same, that here is no resulting trust to the heirs of-Sophia Lowry, in consequence of. her death without declaring her opinion that the time had arrived when a reasonable price could be obtained for the property, secured to the issue of the marriage. The complainant, therefore, as cestui que trust for the infant defendant, F. Lowly, jr., is entitled to the property, or its value, either from Lowry the elder, or the person who has obtained the possession of it from. him. But it appears from the pleadings that the defendant, Lowe, as administrator of the estate of Sophia Lowry, prosecuted an action of replevin against F.'Lowry, sr., for the personal property mentioned in the deed of trust, and that, having failed to establish his right, judgment has beeii rendered against him for the sum of one thousand lour hundred and thirty-six dollars and thirty-one cents, the value found by a jury under the provisions of the statute. The property belonged to neither of .the parties to the suit, and yet the defendant has obtained a judgment for its full value. The law has either transferred that property to the plaintiff, which clearly does not belong to him, or thero is a penalty at least to its full value for commencing a groundless action. This is a view of the statute not very favorable to its provisions, as a substitute for the writs, de retorno habendo and of withernam. It is fortunately, perhaps, not now necessary to consider whether Lowe would be also answerable to the trustee for the property, or its value, in case he elected to bring an action at law upon the tortious possession of [69] the administrator. This court thinks that without violating any principle of equity, the judgment in favor of Lowry the elder, can be taken as a.trust-fund for his infant son. This is upon tho grounds that the judgment is more beneficial to the infant than the goods in specie., 'Lowe can not be aided in this court. This has already been determined in the case of Lowe, Administrator v. E. Lowry, sr., et. al. The *proceedings in replevin have 'transferred to him. the possession of the property, and charged him with the judgment. He must abide by this bitter law. But as that judgment is the proceeds of the infant’s property, and as neither the plaintiff nor the defendant in the action had a shadow of legal right, equity requires that Lowry,-sr. should transfer it to cestui que trust, to be applied according to the declared intention ot Sophia Lowry. The court decree that F. Lowry, sr., assign the judgment, recovered in an action of replevin against P. P. Lowe, except the costs, to the complainant, who is to collect the same in the name of Lowry, who is perpetually enjoined from interfering with the collection thereof, or from discharging or releasing the same, or the proceeds thereof. And, as to the other deiendants, tho bill is to be dismissed. And it is further ordered and decree that the costs of this suit be paid out of the proceeds of the judgment, and the residue be retained by the complainant, for the further directions of this court.