Bratton v. Massey

• Decision Date: 28 June 1881
• Docket Number: CASE No. 1043.
• Parties: BRATTON v. MASSEY.
• Court: South Carolina Supreme Court

15 S.C. 277

BRATTON

v.MASSEY.

CASE No. 1043.

Supreme Court of South Carolina.

Jun. 28th, 1881.

1. A deed of indenture, executed in 1866, by A, his wife, and B, by which A and his wife agreed to separate and live apart, in its preamble recited an agreement that A should convey certain described property to B, to be held and managed by B as trustee for the sole and separate use of the wife, and to be at all times fully and absolutely at her disposal, under directions of the trustee during her life, and by will at her death, as if she were sole. By this deed A conveyed to B, his heirs and assigns forever, a certain lot of land, in trust for the wife of the grantor, to allow her to “occupy, use and enjoy all of said property and estate, in the same manner as if she were unmarried,” or to collect the rents and profits, and apply the same to her support and maintenance; that the trustee should sell, at the written request of the wife, and re-invest the proceeds or dispose of them for her support and maintenance, and what remained at her death she might devise by her last will as if a feme sole-the wife accepting this provision in full satisfaction of support, maintenance and alimony. The husband died, and afterwards the wife, without a will, the property remaining unsold. Held, that the wife took an absolute estate in fee simple in the land, which, at her death, descended to her heir-at-law.

2. The release by the wife of all claim against her husband for alimony, made her a purchaser of the estate for valuable consideration, and made the conveyance to her trustee to be for her sole and exclusive benefit, with full power of disposition in her. SIMPSON, C. J., dissenting.

SIMPSON, C. J., dissenting.

Before KERSHAW, J., Chester, June, 1880.

This was an action commenced August 11th, 1879, by John S. Bratton against Benjamin H. Massey, the heirs-at-law of W. T. Gilmore and certain creditors, who, together with the plaintiff, had established demands against the estate of W. T. Gilmore, under proceedings had in the Circuit Court for Chester county, in 1869. B. H. Massey was also sole heir-at-law of Mary E. Gilmore. The case is stated in the opinion. The Circuit decree, after stating the facts, continued as follows:

This was a deed made by the husband to provide for the separate maintenance and support of the wife, and for a separation. It was voluntary, there being no covenant on the part of the trustee to save the husband harmless in respect of the debts of the wife. Such a deed would be voidable by the creditors under the statute 13 Elizabeth. Smith's L. Cas. *12; Fitzer v. Fitzer, 2 Atk. 513.

But that ground is not taken here, and, if it had been, it might have been answered that the claim was barred by the statute of limitations, after four years from the execution of the deed, as in Lott v. De Graffenreid, 10 Rich. Eq. 346.

I proceed, therefore, to the question as presented. There is no doubt that the conveyance to Massey was in fee. The words employed were those usual and proper for that purpose. This, however, settles nothing as to the resulting trust. The deed authorized the trustee to sell and convey and re-invest during the life of Mrs. Gilmore, and she was authorized to dispose of the property by will. It was, therefore, necessary for the purposes of the deed that the fee should be in Massey.

The real question is, what was the interest of Mrs. Gilmore? Was it a life estate, or a fee? If it was a life estate, then all the trusts declared in the deed terminated at her death, she having failed to dispose of it by will under the power conferred upon her by the deed. In that case the trust resulted to the heirs of the grantor. 2 Story's Eq. 1196 a; Hill. on Trust. 114; 4 Kent 307; 2 Washb. on Real Prop. 472; Lloyd v. Spillet, 2 Atk. 150.

It is contended by defendant that, a consideration being expressed in the deed ($1), there can be no resulting trust according to the proposition laid down by Mr. Washburne, (Book 2, ch. II., § 2, ¶ 43,) as applicable to uses. But in regard to trusts, it is different, as may be seen from the same author, (Book 2, ch. I., § 2, ¶ 12,) where it is said that “if the consideration were not something substantial, equity would interpose and hold the bargainee, though the owner of the legal estate, as the trustee of the bargainor.” Here the consideration was merely nominal which passed from the grantee, who is an express trustee, without any beneficial interest whatever, and, so far as the cestui que trust is concerned, there was no legal consideration whatever.

It appears to me plain that the estate of Mrs. M. E. Gilmore was limited to her life. A conveyance by deed of lands generally, without the word “heir,” carries no more than the life estate. 4 Kent 5. Washb., Book 2, § 2, ¶ 28: “In interpreting the words in which a trust is declared, courts adopt the same rules as in granting the legal estate. Thus, a trust in favor of A, with no words of inheritance, would be for life only.” Id., § 3, ¶ 4.

The deed plainly declares the object of the trust to be to provide for the maintenance and support of Mrs. Gilmore. It is true, the whole might have been expended for that purpose by the trustee, if necessary, yet the words import no more than a life estate. No further expenditure could be made by the trustee for her support and maintenance after her death. What then remained the deed gave her the power of disposing of by will, “ notwithstanding her coverture, as if she were sole and unmarried.” These words convey a naked power. Sugd. on Pow. 125. This power having failed of execution, the trusts of the deed are exhausted, and result to the grantor.

If these trusts had been created by will, a greater latitude of construction might have been admissible, and, under our statute, the gift would have been considered a fee simple, unless such construction would have been inconsistent with the intention of the testator. Rev. Stat. 443.

The defendant contends that this was a gift generally, and not for life, and, being coupled with a general power to dispose of the estate, that it should be construed a fee simple. Had that been the character of this gift, and it had arisen under a will or devise, there could have been no doubt of the proposition. Pulliam v. Byrd, 2 Strob. Eq. 142. Very good authority is cited in the margin of that case for the proposition that in a devise the same effect would follow, where the estate was limited for life, with a general power of appointment, though the law is there declared to be otherwise. But I do not find any authirity for extending the principle to the case of trusts created by deed, in violation of the rule of common law requiring words of inheritance to create a fee, though there may be found some countenance for this view in certain decisions respecting marriage articles and executory trusts. Fonb. Eq., Book 2, § 2, and note.

It will be observed that the deed under consideration does not convey an estate “ to the sole and separate use” of Mrs. Gilmore, but in trust for her maintenance and support. She had, therefore, no estate at all in the property conveyed. It is like the case of Hyde v. Price, 3 Ves. 445, where Lord Alvanley says: “I am of opinion that this is not property she is entitled to, to her sole and separate use. There is a special trust upon it. She has no dominion over it.” See the observations of Mr. Roper upon deeds of this character in his learned treatise on Husband and Wife, vol. II., p. 304.

For these reasons I conclude that at the death of Mrs. M. E. Gilmore the trust in the property conveyed by the said deed resulted to the heirs of W. T. Gilmore, and the same became liable for the payment of the debts established against his estate.

Defendant appealed.

Messrs. R. E. Allison and W. B. Wilson, for appellant.

Mr. G. J. Patterson, contra.

The opinion of the court was delivered by

MCIVER, A. J.

On December 22d, 1866, W. T. Gilmore and wife, M. E. Gilmore, with the defendant, B. H. Massey, executed a deed of indenture in substance and to the effect following: After reciting that some unhappy differences had arisen between the husband and wife which had induced them to agree “to live separate and apart from each other, and, previous to such separation he, the said W. Taylor Gilmore, has consented thereto, and has agreed to transfer, release, convey, surrender and deliver certain real and personal property, hereinafter mentioned, for the support and maintenance of said M. E. Gilmore, to be held and managed by the said Benjamin H. Massey as trustee, in trust from henceforth to the sole and separate use of said M. E. Gilmore, and to be at all times as fully and absolutely at her disposal, under directions to her said trustee in her lifetime, or by will at her death, as if she were sole and unmarried,” the deed proceeds as follows: “Now this indenture witnesseth that the said W. Taylor Gilmore, in pursuance of said proposal, promises and agrees with the party of the second part that the said M. E. Gilmore shall and may live separate and apart from him and reside in places and families of relations or friends or other persons, and follow such business and pursuits as she, at her will and pleasure, may think fit and desirable; and further, that, as well for the consideration aforesaid as for and in consideration of the sum of $1 to the said W. Taylor Gilmore by the said Benjamin H. Massey paid, the said W. Taylor Gilmore has granted, bargained, sold, &c., *** all that lot of land, &c. *** To have and to hold all and singular the premises *** unto the said Benjamin H. Massey, his heirs and assigns forever, in trust, however, and upon the confidence that he, the said Benjamin H. Massey, shall allow the said M. E. Gilmore to occupy, use and enjoy all of said property and estate, or that he shall collect and receive the rents, issues and profits thereof and apply the same to the support and maintenance of said M. E. Gilmore in same...