Gindrat v. Montgomery Gas-Light Co.

• Decision Date: 30 May 1887
• Citation: 2 So. 327,82 Ala. 596
• Parties: GINDRAT AND OTHERS v. MONTGOMERY GAS-LIGHT CO.
• Court: Alabama Supreme Court

2 So. 327

82 Ala. 596

GINDRAT AND OTHERS v. MONTGOMERY GAS-LIGHT CO.

Supreme Court of Alabama

May 30, 1887

Appeal from circuit court, Montgomery county.

Statutory real action in the nature of ejectment.

This action was commenced August 21, 1885, by John H. Gindrat William E. Gindrat, Elenor Gindrat, and Mary Elizabeth Gindrat, against the Montgomery Gas-Light Company, and sought to recover certain real estate in the city of Montgomery; the interest claimed being an undivided one-half. The defendant pleaded (1) not guilty; (2) adverse possession for 10 years (3) adverse possession for 30 years; (4) adverse possession for three years, with suggestion of valuable improvements worth $100,000. Upon the trial the verdict and judgment were for the defendant.

Plaintiffs claimed title, as remainder-men, under a conveyance executed by John Nichols to John H. Gindrat on July 17, 1845. Said deed, after the habendum clause, recites: "In special trust and confidence, nevertheless, for the sole and separate use, benefit, and behoof of Sarah L. Gindrat during the term of her natural life, and at her death said premises shall still be held in trust for her three children, to-wit Abraham Gindrat, Mary Elizabeth Winter, and William B Gindrat, for and during the term of their natural lives, and at their death the same shall vest in the heirs at law or children of them, the said Abraham, Mary Elizabeth, and William B., that may be living at the time of their deaths; provided, always, and it is expressly provided and agreed by and between the parties, that the said trustee may at any time, with the advice and consent of John Gindrat, the father of the said Abraham, Mary Elizabeth, and William B., sell and dispose of any or all of said lots for cash or upon credit, as they may think proper; and it is further agreed and stipulated by and between the parties that, should John Gindrat die leaving any portion of said trust property undisposed of in the hands of said trustee, then it shall be necessary for said trustee, before disposing of any portion of said trust property, to obtain the assent in writing of the said cestui que trust to that effect." Said John Gindrat died March 29, 1851, and William B. Gindrat in 1852, the latter leaving no children surviving him. On December 10, 1853, Sarah Gindrat, John H. Gindrat, and Mary E. Gindrat, his wife, Abraham Gindrat, and Mary E. Gindrat, his wife, Joseph S. Winter, and Elizabeth Winter, his wife, sold and conveyed said premises to the Montgomery Gas-Light Company. Said deed sets forth: "And we do covenant and agree with the said company, its successors or assigns, that we are seized of an indefeasible estate in the above-conveyed premises, that we have a good right to sell and convey the same, that they are clear of all incumbrances, and that we will warrant and defend the same to the said company, its successors or assigns, forever, against the lawful claims and demands of all persons whatever." The said Sarah L. Gindrat died June 9, 1854, and Abraham Gindrat died October, 1884, and left the plaintiffs in this suit as his only children and heirs. It was admitted that, before the bringing of the suit, a written demand was made for said undivided half interest in the premises, which was refused. Upon the foregoing evidence, the court gave the general charge in favor of defendant, and refused to give the general charge in favor of plaintiffs, which said actions of the court are assigned as error.

Watts & Son, for appellants.

Says & Graves, Williamson & Holtzclaw, Marks & Massie, contra.

SOMERVILLE J.

The first question we consider as the one of controlling importance is whether there has been a valid and sufficient execution of the power of sale conferred on John H. Gindrat, as trustee, under the deed of trust executed by John Nichols on July 17, 1845. If so, this would cut off the interest of the plaintiffs, as remainder-men, under the provisions of that instrument, and be fatal to their right of recovery in this action. This deed is made in trust upon a recited valuable consideration moving from the trustee to the grantor. (1) "For the sole and separate use, benefit, and behoof of Sarah L. Gindrat," the wife of one John Gindrat, and the mother of the trustee, during the term of her natural life; (2) at her death, in trust for her three children. Abraham Gindrat, Mary Elizabeth Winter, and William B. Gindrat, for and during the term of their natural lives; (3) at their death, the premises conveyed to "vest in the heirs at law and children of them, the said Abraham, Mary Elizabeth, and William B., that may be living at the time of their deaths." The clause of the instrument which vests in the trustee the power to sell, is not absolute, but conditional, being in the following words: "Provided, always, and it is expressly provided and agreed by and between the parties, that the said trustee may at any time, with the advice and consent of John Gindrat, the father of said Abraham, Mary Elizabeth, and William B., sell and dispose of any or all of said lots for cash, or upon credit as they may think proper; and it is further agreed and stipulated by and between the parties that, should John Gindrat die, leaving any portion of said trust property undisposed of in the hands of said trustee, then it shall be necessary for said trustee, before disposing of said property, to obtain the assent in writing of said cestui que trusts."

What is meant by the phrase "said cestui que trust," and to whom is it intended to have reference? Does it refer to Mrs. Sarah L. Gindrat, the first beneficiary under the deed, who was primarily entitled for life to the usufruct of the property, with its rents and profits, or does it refer to the second life-tenants and the remainder-men, all of whom may be ultimately beneficiaries or cestuis que trust? This is a pivotal point of contention, and depends upon the intention of the grantor in the deed, as may be inferred from a sound and proper construction of its language. A cestui que trust is one who has a right to a beneficial interest in and out of an estate, the legal title to which is vested in another as trustee. He is an equitable owner, and, if his right of possession is not postponed, he is entitled to the usufruct, or rents and profits of the trust-estate. The word, as used in the deed, is in the singular, not in the plural. It would be more natural, therefore, to construe it as having reference to one than to many. If it be made to embrace the second class of life-tenants, and the then unknown remainder-men who were contingently beneficiaries, we must convict the grantor in the deed of a clerical misprision, in its preparation, of the gravest character, and one resulting in the most serious consequences in controlling its interpretation.

Can we suppose that the grantor intended to confer on the trustee John H. Gindrat, the power to sell, after the death of his father, John Gindrat, who died in March, 1851, only on condition that he obtained the assent in writing of the three children of John and Sarah L. Gindrat, (Abraham, Mary Elizabeth, and William B.,) and such of their children as "might be living at the time of their deaths," who would be the remainder-men in the deed, and therefore in a generic sense also cestuis que trust equally with the second class of life-tenants? If we are to enlarge the singular of this word into the plural by judicial construction, it will obviously include the remainder-men as well as the second life-tenants; for both classes are beneficiaries or cestuis que trust within the more comprehensive signification of the phrase. No sound reason can be adduced which would include the one, not equally applicable to the other. This construction would lead to results embarrassing in their nature, if not absurd and impracticable. It can scarcely be supposed that it was intended by the grantor in the deed that the power to sell should depend upon the assent of all these beneficiaries, some of whom might not be in existence, or might be minors of tender years at the time when it was deemed expedient to sell, and the death of any one of whom, according to the well-settled rule of the common law, would defeat the execution of the power by the survivors. It must be supposed that the grantor was not ignorant of this rule; that he knew that, where the consent of more than one cestui que trust was required as a condition to the execution of a power conferred on a trustee, the death of any one of them, without giving such consent, would destroy the power by rendering its execution impossible,-a rule which has been modified by our statute only so far as applicable to the grantees of a power, not to persons by whose consent it is to be executed. Barber v. Cary, 11 N.Y. 397; Code 1876, §§ 2215, 2219. We repeat, it is not probable, therefore, that he could have intended to tie up the trust-estate in this manner, by the requirement of a condition the most ordinary sagacity could not fail to see would be unbusiness-like, impracticable, and unreasonable. It is observable that, during the life of John Gindrat, his consent alone was necessary to the execution of this power; the policy being thus adopted which favors the certainty and promptitude of unity in the execution of the power. To depart so suddenly from this intention would not seem to harmonize with the purpose of the grantor, which was to provide a reasonable mode for selling or disposing of the property. How could this better be done than by selecting the mother of the second life-tenants, and the grandmother of the remainder-men,-the primary object of the grantor's bounty, if we so consider it,-who was to be put at once into the possession and enjoyment of the use of the property? Such we take...