Dunnett v. Shields
| Decision Date | 26 February 1924 |
| Citation | 123 A. 626 |
| Parties | DUNNETT et al. v. SHIELDS et al. |
| Court | Vermont Supreme Court |
Appeal from Chancery Court, Caledonia County; Sherman R. Moulton, Chancellor.
Bill by Ella Dunnett and another against Charles A. Shields and another. Decree for plaintiffs, and defendants appeal. Reversed and remanded, with directions.
Appeal in chancery. Bill to have a deed of trust to the defendants sets aside as being in fraud of the rights of Ella Dunnett as widow, and of the creditors of the estate of her husband, Alexander Dunnett. Heard on findings of fact, bill and answer, supplemental bill and answer, and cross-bill and answer, after the June term, 1922, Caledonia county; Moulton, Chancellor. Decree for the plaintiffs. The defendants appealed. The opinion states the case.
The trust deed referred to reads as follows:
Trust Deed. Know all men by these presents: That I whereas, I, Alexander Dunnett of St. Johnsbury, in the county of Caledonia and state of Vermont, being desirous of relieving myself from the cares of the management of my estate, and being desirous of keeping the greater portion of my estate intact for my own use during my life, and for the purpose of providing for the payment and discharge of all and singular my just debts and obligations at my decease, and also being desirous of providing an assured income for the benefit of my wife, Ella Dunnett, during her life, and after her decease to provide for the disposition of the rest and remainder of my estate to the beneficiaries hereinafter named:
Now therefore, in consideration of the foregoing and of one dollar, to me paid by Charles A. Shields and David S. Conant, both of St. Johnsbury, in the county of Caledonia and state of Vermont, the receipt whereof is hereby acknowledged, I hereby give, grant, sell, convey and confirm unto the said Charles A. Shields and David S. Conant, as trustees, in trust, for the following purposes, and under the following conditions, all and singular the real estate which I now own, standing in my name, situated in the towns of Ryegate, Hardwick and Groton, in the county of Caledonia, and Montpelier, in the county of Washington and state of Vermont, together with all and singular the personal property owned by me in said towns of Ryegate, Hardwick, Groton and Montpelier, and all the bonds, stocks and all other personal property of whatever kind or description, or wherever found or located, including my law library in the law offices of Dunnett, Shields & Conant in St. Johnsbury Village in St. Johnsbury aforesaid, and my interest in the moneys due and to become due to me from the firm of Dunnett, Shields & Conant, including also debts due me personally on account of professional services and otherwise, except that I especially reserve and except from his conveyance all and singular my homestead place, situated in the village of St. Johnsbury, in St. Johnsbury aforesaid, known as "No. 108 Main street," together with the tenement house located near by and the personal property and effects situated in said homestead.
First. I direct my said trustees to pay and turn over to me during my life all and singular the income from my property and my estate, including my share of the income of the firm of Dunnett, Shields & Conant.
Second. After my decease I direct my said trustees to pay all and singular my just debts and obligations, using therefor such moneys and property belonging to my estate as in their judgment is best for that purpose, but if there are existing mortgages upon any of my property, it is not intended that such mortgages be paid any faster than is consistent with furnishing my wife such ample support as is hereby intended and hereinafter provided. It is intended that the taxes on her property shall be paid so long as she retains the title to the same, and that the income from rents of her real estate while she owns it, and the income from the proceeds thereof in Case she sells it, shall be first used by her for her support.
Third. After my decease, I direct my said trustees to pay my wife, Ella Dunnett, so much of the net income of my estate as may be suitable and proper for her ample and comfortable support, including necessary spending money during her life, both in sickness and health, and if said income from my estate is not sufficient to comfortably maintain and support my said wife, with her own income, as aforesaid, then I direct my said trustees to use so much of the principal thereof as may be necessary to accomplish that purpose. It is not the intent of these presents that my said wife shall at all shrink the principal of her property so long as there is sufficient in this trust to maintain her.
Fourth. I further authorize and direct my said trustees, after my decease, to sell so much and such portion of my estate, whether the same be real or personal, from time to time, as in their judgment is for the best interest of the beneficiaries named in this trust deed, and my said trustees, and their successors are hereby authorized and empowered to execute and deliver such deed or deeds, bills of sale, receipts, releases, or other papers as may be suitable and necessary to transfer such real estate or personal property, and I hereby authorize and empower my said trustees to execute such mortgages as may be suitable or necessary to raise money to effectuate the purposes of this trust, or properly conduct and manage my said property and estate, with the right to buy real estate or personal property, and to invest the proceeds of property sold, in real estate or personal property, as in their judgment may be best.
Fifth. That after all my just debts and obligations have been paid by my said trustees, and after the decease of my said wife, and the payment by my said trustees of all of her funeral expenses, then I authorize, empower and direct my said trustees to liquidate my said estate, and convert the same into cash as soon as they conveniently can, and pay to my brother, George H. Dunnett, of Ryegate, in the county of Caledonia and state of Vermont, one-fourth part of the rest and residue of my estate, and pay to each and every of my nephews and nieces, children of my brothers and sisters, share and share alike, in equal proportions, the remaining three-fourths part of the rest and residue of my estate, and to pay to the legal representative of any deceased nephew or niece the share of my estate which would have been paid to such nephew or niece, if he or she were living at the time of my decease.
Sixth. I hereby name, constitute and appoint said Charles A. Shields and David S. Conant, or either of them my true and lawful attorney for me, and in my name and stead, or in their own names as trustees thereof, to vote at any and all stockholders' meetings in any and all corporations wherein I am a stockholder, and I hereby authorize and empower my said trustees and the survivor of them and their successors, to sell and transfer any and all of said stock which I own, and to do all and singular the things relative thereto that I could do, or could have done if living.
Seventh. I further authorize and empower my said trustees to purchase my law library and office furniture situated in the law offices of Dunnett. Shields & Conant, if they so elect, for the sura of three thousand dollars, with interest from my decease, to be paid in such reasonable installments as may be convenient for them.
Eighth. I further direct that my said trustees shall deduct from the money coming into their hands from my said estate, reasonable pay for their services and expenses necessarily attending the execution of this trust.
To have and to hold said property herein conveyed for the purposes hereinbefore specified during my life and during the life of my said wife, Ella Dunnett, and for such further time as may be reasonably necessary to liquidate my estate as aforesaid.
I hereby save and reserve the right to revoke this trust, in whole or in part, at any time during my life, and declare the same to be null and void by writing executed with the same formalities with which this deed of trust is executed and deliver said revocation in writing, executed as aforesaid to said trustees herein named, and cause the same to be recorded in the records of the various towns where this trust deed is recorded, provided said trust deed is recorded.
In witness whereof, I hereunto set my hand and seal this 12th day of May, A. D. 1920.
Alexander Dunnett. [L. S.]
In presence of: John F. Puffer. C. A. Cramton.
State of Vermont, Caledonia County—ss.:
At St. Johnsbury in said county this 12th day of May, A. D. 1920, personally appeared Alexander Dunnett and acknowledged this instrument by him sealed and subscribed, to be his free act and deed.
Before me John F. Puffer,
Notary Public.
We each hereby accept the foregoing trust.
Dated at St. Johnsbury, Vermont, this 12th day of May, A. D. 1920.
Charles A. Shields. David S. Conant. In presence of: Murray D. Clement. Helen I. May.
Argued before WATSON, C. J., and POWERS, TAYLOR, and BUTLER, JJ., and FISH, Superior Judge.
John W. Redmond, of Newport, and Shields & Conant, of St. Johnsbury, for appellants.
Erwin M. Harvey, of Montpelier, and Searles & Graves, of St. Johnsbury, for appellees.
FISH, Superior Judge. The plaintiff Ella Dunnett is the widow of the late Alexander Dunnett. The other plaintiff is Erwin M. Harvey, who joins in the bill as the administrator with the will annexed of the estate of Mr. Dunnett. He is also solicitor for the plaintiffs. The purpose of the suit is to have a deed of trust made by Mr. Dunnett to the defendants set aside as in fraud of the marital rights of Mrs. Dunnett and of the creditors of his estate.
When the bill was brought, it was supposed by all parties concerned that Mr. Dunnett had died intestate, but a will was subsequently found which gave all his property to Mrs. Dunnett, except a gold watch and chain and the sum of $100 to be...
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