Best v. Deason
| Decision Date | 12 October 1923 |
| Docket Number | 11. |
| Parties | BEST v. DEASON ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Barnwell County; P. F Henderson, Special Judge.
Action by Martin C. Best against R. A. Deason and others. Judgment for plaintiff, and defendants appeal. Affirmed.
The decree of Special Judge P. F. Henderson, referred to in the opinion of Justice FRASER, follows:
The controlling question presented by the demurrer to the answer of the defendant, A. P. Aldrich, is whether or not under the terms of the deed from Lewis M. Ayer to Robert Aldrich, which is dated the 29th day of December, 1866, the subsequent conveyance, upon the written request of A. P. Aldrich and M A. Aldrich, by the trustee, Robert Aldrich, to Alfred Aldrich, was legal.
The pleadings reveal the fact that the realty, which is the subject-matter of this action, and other lands similarly affected, all of which is now quite valuable, was conveyed under the aforesaid deed by Lewis M. Ayer to Robert Aldrich "in consideration of the sum of $3,345.90 to me in hand paid by Alfred P. Aldrich and Martha A. Aldrich, his wife," and that said deed was made "in trust for the sole and separate use of his sister, Rosa, for and during her natural life, and after her death to be equally divided among her children." And then follow two paragraphs in said deed, which add important items to the trust upon which said deed is made. These paragraphs read as follows:
On the 26th day of December, 1889, A. P. Aldrich and M. A. Aldrich in writing, requested and directed Robert Aldrich, the trustee, to sell and convey the property described in the deed from Lewis M. Ayer, for a consideration of $5,000, to Alfred Aldrich, and directed him specifically "upon the receipt of said purchase money to transmit the same to the said Rosa, cestui que trust, under said trust deed, to be by her reinvested in such other property as she may elect."
Acting under this written direction and consent of A. P. Aldrich and M. A. Aldrich, Robert Aldrich did duly convey the property in question to Alfred P. Aldrich.
My construction of the papers above recited is that A. P Aldrich and M. A. Aldrich out of their own funds purchased and paid for the realty in question, intending to buy the same primarily for the benefit of their daughter, Rosa; providing, however, in the trust deed, in effect, that if other disposition were not made of the property during the lifetime of Rosa that the remainder over therein should go to her child or children living at her death. But the said A. P. Aldrich and M. A. Aldrich further desired and provided, inasmuch as they had paid the purchase price for the property, that should Rosa die and leave no children that the property should revert to the estate of A. P. and M. A. Aldrich. This provision, to my mind, shows an intention upon the part of A. P. and M. A. Aldrich to retain in themselves some measure of interest in and control over the property.
Then follows the very important paragraph in the deed in which it is provided that the trustee may sell the property upon the written request of A. P. Aldrich and M. A. Aldrich. My construction of this paragraph of the deed is that A. P. Aldrich and M. A. Aldrich realized that contingencies might arise, by virtue of which it might be necessary materially to change the method of investment, and that they carefully provided in the trust deed that should this contingency arise that by directing and requesting the trustee to act that they might make any change, no matter how sweeping, in the investment as they might desire to make. All that it was really intended to give Rosa's children under the trust deed was a remainder, if A. P. and M. A. Aldrich did not exercise the power reserved to them.
The contingency which they had foreseen seems to have arisen in 1889, when their daughter, Rosa, had removed to the state of California, as is set out in their written direction to the trustee, dated the 26th day of December, 1889. Rosa's welfare was their first consideration, and they then directed the trustee in writing to sell the property, and to transmit the proceeds to Rosa "to be by her reinvested in such other property as she may elect." I think that such a reinvestment was in conformity with the general plan of the trust deed, and I hold that the plan outlined and provided for in the trust deed has been strictly followed in the written request and in the deed from Robert Aldrich to Alfred Aldrich.
The important remaining question is whether the plan provided in the trust deed, and later strictly followed by the interested parties, was legal. Inasmuch as it is a well-known fact that the interested parties were amongst the foremost citizens of the state of South Carolina, the grantor being General Lewis M. Ayer, the original investors being Judge A. P. Aldrich and his wife, and the trustee being Col. Robert Aldrich, who later became one of the most brilliant circuit judges of this state, he and the aforesaid Judge A. P. Aldrich constituting two of South Carolina's ablest jurists--in view of these circumstances it would seem more than passing strange if a plan of action which was devised by, or at least participated in, by such brilliant lawyers as these should be found to be defective, illegal, or in any manner fraudulent, as is suggested by the answer of the defendant, A. P. Aldrich, Rosa's son.
This consideration, while it may be persuasive to a certain extent, is by no means to be considered controlling in our inquiry. The vital question is a cold question of law, namely, as to whether or not the plan followed in attempting to give to the purchaser a fee simple title, was legal, or was, on the other hand, in contravention to the law of trusts?
Let us then consider this interesting question to which I have given considerable thought and independent research, as supplementary to the learned arguments of counsel. My general idea of matters of this kind is that unless some well-settled principle of law is transgressed, that the province of the court in considering trust matters especially, is simply to determine the real intention of the parties. This idea is well expressed in 26 R. C. L., at page 1289, as follows: "The provisions and conditions of the instrument creating the trust make the law by which the conduct of the trustee in the management and disposition of the trust property must be regulated and controlled." This general principle is recognized and followed in Foster v. Glover, 46 S.C. 522, 24 S.E. 370.
The trust deed herein gives Robert Aldrich a full power of sale, subject, however, to the written direction and consent of his father and mother, Judge A. P. Aldrich and Mrs. M. A. Aldrich, who had paid General Ayer for the land. This kind of a trust, in which the power of sale is to be exercised only upon the direction and at the request of some other person save the trustee, presents no new principle, but is met with by the courts quite frequently.
In South Carolina we have instances of the same in such cases as Creighton v. Pringle, 3 S. C. 77, Rice v. Bennett, Speers, Eq. 579, 42 Am. Dec. 336, and Pyron v. Mood, 2 McMul. 281. In each of these cases the request of the beneficiary was required to the exercise of the power of sale, and, when this request was given, the purchaser's title to the property conveyed by the trustee was considered complete even against remaindermen.
Passing to other authorities, it will be seen that the party whose consent is the controlling feature in the exercise of a power of sale need not necessarily be the beneficiary, but may be some third person.
Judge Freeman, in a full editorial note found in 19 Am. St. Rep. at page 278, says:
In the Alabama case of Gindrat v. Montgomery, 82 Ala. 596, 2 So. 327, 60 Am. Rep. 769, a power of sale upon which the written request of a third person was required was upheld and recognized as valid even against the interest of remaindermen.
There are two Georgia cases which, to my mind, are pertinent in this inquiry. Headen v. Quillian, 92 Ga. 220, 18 S.E. 543. In this case property was conveyed to a trustee for the benefit of Eliza Headen during her life, with remainder over to her children "with power of the said Eliza Headen to empower the trustee by writing under her hand to sell any part or whole of the trust property." It was held...
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