Hinton's ex'R v. Hinton's Committee

• Decision Date: 13 November 1934
• Citation: 256 Ky. 345
• Parties: Hinton's Ex'r et al. v. Hinton's Committee et al.
• Court: United States State Supreme Court — District of Kentucky

256 Ky. 345

Hinton's Ex'r et al. v. Hinton's Committee et al.

Court of Appeals of Kentucky.

Decided November 13, 1934.

1. Pleading. — In suit involving question whether there was sufficient delivery and acceptance of trust deed to make it effective,

answer affirming that there was held not demurrable as stating merely conclusions of pleader.

Answer alleged that trustor conferred with trustee named in deed and stated his intention to make trust deed in form in which it was made, and that named trustee agreed to accept trust, that trustor had deed drafted in accordance with statement and agreement made with named trustee, signed and acknowledged deed, and had it recorded, and notified named trustee of what had transpired, and that named trustee fully understood he was to carry out the trust, and agreed to do so, and did so act until a specified date.

2. Trusts. — Where subject of trust is legal interest in property and capable of legal transfer, trust is generally not perfectly created, unless legal interest is actually vested in trustee.

3. Trusts. — Where subject of trust is real property, title thereto can only be vested by deed of conveyance which must be delivered by trustor and accepted by trustee.

4. Trusts. — Trustor's signing, acknowledging, and recording of trust deed would be insufficient to impart validity to trust deed, unless trustor delivered deed to trustee.

5. Trusts. — Trustor's delivery of trust deed to clerk of county court for recording was not "delivery" required to validate trust deed, but merely affirmative evidence thereof.

6. Trusts. — Trustor's delivery of trust deed to county clerk for recording, without reservation of any control thereover, unconditionally, for use of grantee, in accordance with grantee's previous consent to accept deed and act as trustee, intending it to take effect immediately, is sufficient "delivery" to pass title to land described therein to grantee as trustee.

7. Trusts. — "Delivery" of trust deed sufficient to pass title to trustee does not require that trustee receive or have physical possession of deed, but any acts or words which clearly manifest trustor's intention to consummate his deed and to part unconditionally with it, and with all control over it, are sufficient to give legal existence to it as deed and to constitute "delivery" from which acceptance may be implied.

8. Trusts. — Placing of trust deed on record at trustor's direction, without prior consent of trustee designated therein to accept deed, is not "delivery" passing title, since title to valid trust cannot be vested by deed in trustee without his consent to act as such, and county clerk cannot be considered to be designated as trustee's agent to accept deed.

9. Trusts. — Acceptance of trust deed is matter of intention, and must be determined from acts and words, or both, of grantee in relation to deed.

10. Trusts. — Trust deed may pass title, although there is no physical acceptance thereof, or acceptance does not occur at time of

execution of trust deed, and no particular form or actual words of acceptance are necessary.

11. Trusts. — Where trustor, before, at time of, or after execution and recording of trust deed, expressed intention to execute and deliver trust deed to trustee named therein, with expectation of trustee's carrying out its provisions, and trustee agreed to accept trust deed and perform obligations thereunder, there was "delivery" and "acceptance" of trust deed, creating irrevocable trust, which could not be revoked without consent of all cestuis, in absence of power of revocation retained in deed.

12. Insane Persons. — Mental incompetent held incapable of binding herself by quitclaim deed to property held in trust for her, or of effecting revocation of trust thereby.

Appeal from Scott Circuit Court.

JNO. F. FORD, Jr., and SWINFORD & SWINFORD for appellants.

BRADLEY & BRADLEY for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

The propriety of the action of the court sustaining a demurrer to the answer of William A. Hinton, executor of the will of George W. Hinton et al., is the determinate question presented on this appeal.

F.C. Giles, as committee of Nora D. Hinton, filed this action in the Scott circuit court for a declaration of the rights of Nora D. Hinton to a tract of land described therein and of his obligations and rights as her committee in connection with this land.

The facts herein presented are substantially as follows: George W. Hinton, the father of Nora D., died the 12th day of October, 1931, leaving her as his only child. She was unmarried, over 50 years of age, and an incompetent.

On the 28th day of March, 1928, George W. Hinton, a widower, was the owner of 400 acres of land, located in Scott county, Ky. He was an old man, in bad health, residing alone with his feeble-minded daughter, Nora D. He decided to execute, acknowledge, and deliver a deed to William A. Hinton, a close relative, conveying to him, as trustee, the 400 acres. He conferred with William A., and informed him that he wanted to make the deed of trust. To accomplish this purpose, George W. Hinton went to Georgetown, Ky., caused the deed to be prepared, signed, acknowledged, and delivered to the clerk of the county court for recording. It contains a provision conferring authority on William A. to manage operate, and control the 400 acres; receive the income, pay the taxes, insurance, upkeep, maintenance, and operating expenses out of the rents, issues, and profits derived therefrom, with the power of general supervision over the land, and directions to pay the expenses of administering the trust and compensation for his services, and directed the net income to be used by the trustee for the joint benefit of himself and daughter, Nora D., during their lives, and, upon the death of either, the net income to be used for the benefit of the survivor during his or her life. The deed provides that, in the event of the death of himself and daughter, the fee-simple title shall pass to the heirs at law of George W. Hinton, "according to the law of descent in Kentucky, then in force and effect." The deed expressly authorized William A., as trustee, to sell the trust property and to encroach upon the corpus; also directed him to pay out of the trust estate "funeral expenses of both George W. and Nora D. Hinton." It contains this provision:

"Upon the death of said William A. Hinton, or in the event of his resignation or surrender of said trust, his successor shall be appointed and qualified under bond by the Scott county court, as other fiduciaries are appointed and qualified by law."

Simultaneously with the execution and acknowledgment of the deed of trust, he executed and published a will Its first clause reads:

"I have this day conveyed all my real estate to William A. Hinton in trust upon terms of trust which will provide for myself and daughter during our lives and for the survivor during his or her life; I now ratify and confirm that deed."

The second clause devised to Nora D. Hinton, in fee simple, "all real estate and personal property," which he "may own, or have possession of," at the date of his death "after the payment of debts and funeral expenses."

The third clause nominated William A. Hinton as executor.

On the 8th day of May, 1928, or one month and eighteen days after the date of the trust deed, William A. Hinton executed and delivered to George W. Hinton a quitclaim deed, wherein it is recited that "William A. Hinton never accepted said trust and deed of trust was never actually delivered to him"; "he has declined, and now declines, to assume or to take the execution of said trust, and has refused, and now refuses, to undertake or assume any of the obligations or responsibilities thereof, and at the request of George W. Hinton he executed and delivered a quit claim deed," "without prejudice to the rights or interest of any other person, or persons, who has, or may have, acquired rights or interest by virtue of said deed of trust, in, or to, the property therein described, either as beneficiary of said trust or in the remainder after the termination of said trust; * * * but solely for the purpose of evidencing the refusal of said William A. Hinton to accept said trust and his refusal to assume or undertake the execution thereof or any responsibilities arising therefrom."

On the 12th day of May Nora D. Hinton executed, acknowledged, and delivered to George W. Hinton a quitclaim deed to the 400 acres.

Giles, as committee of Nora D. Hinton, in his petition against the next of kin of George W. Hinton, set up these facts as a basis of the claim of fee-simple title of Nora D. to the 400 acres.

The next of kin traversed the petition and affirmatively pleaded that George W. Hinton "conferred with William A. Hinton and stated to him that he wanted to make this deed of trust with him and in the form in which it is made, and the said William A. Hinton agreed to accept the said trust, and carry out its provisions," and, pursuant to this arrangement, they started to Georgetown to have the deed prepared, and, after going together some distance, William A. "was compelled to return," when George W. continued his journey, obtained legal advice as to the manner in which the deed was to be drafted, had the deed made "in accordance with his statement and agreement made with him and William A. Hinton"; after it was prepared he signed and acknowledged it, carried it to the office of the clerk of the Scott county court, and had it recorded; "paid for the recording thereof and immediately thereafter made known to the defendant, William A. Hinton, what had transpired and sought the further agreement" with him "that he would accept the trust and carry out the provisions thereof," which George W. believed would be done at the time he made the deed. It is distinctly alleged that William A. "fully understood he was to carry out the said trust and agreed to do so...