Lewis v. Curnutt

• Citation: 130 Iowa 423,106 N.W. 914
• Parties: LEWIS v. CURNUTT ET AL.
• Decision Date: 10 April 1906
• Court: United States State Supreme Court of Iowa

130 Iowa 423

106 N.W. 914

LEWIS

v.CURNUTT ET AL.

Supreme Court of Iowa.

April 10, 1906.

Appeal from District Court, Buena Vista County; A. D. Bailie, Judge.

The opinion states the case. Reversed.

F. F. Faville and L. A. Smyers, for appellants.

Milchrist & Scott and Helsell & Schultz, for appellee.

WEAVER, J.

On August 25, 1903, Julia E. Crockett, being the owner of the W. 1/2 of the S. E. 1/4 of section 8, township 90 N., of range 35 W., in Buena Vista county, Iowa, and lot No. 3 in block 42 in the city of Storm Lake, Iowa, conveyed the same to “Calliway Curnutt, trustee.” The conveyance was by warranty deed in the usual form and for the expressed consideration of “one dollar and the execution of the trust hereby created.” At the same time as a part of the same transaction the grantor made and delivered to Curnutt another written instrument in the following form: “I, Julia E. Crockett, of the city of Storm Lake, in Buena Vista county, and state of Iowa, do hereby make, constitute, and appoint Calliway Curnutt, of Buena Vista county, Iowa, a trustee, for and in behalf of myself to receive, acquire, take, and hold title to the following real estate, situated in the county of Buena Vista and state of Iowa, to wit: The west half (1/2) of the southwest quarter of section eight (8) in township ninety (90), range thirty-five (35), west of the 5th P. M. Also lot number three (3) in block number forty-two (42) in the city of Storm Lake, according to the recorded plat thereof, from and after my death, and not before, to execute, transfer, and convey perfect title to the above real estate, and also any and all personal property of which I may die seised or possessed, and I hereby empower him to do any act which I could do if present, subject to the following conditions: (1) At my death said trustee shall immediately take possession and have control of all my property both real and personal, and he shall first out of the proceeds of the land above described he shall pay the expenses of my last sickness, funeral expenses, and settlement of my estate in full. (2) To the Board of Ministerial Relief of the Church of Christ, corporation organized under the laws of the state of Indiana, he shall pay the sum of one thousand ($1,000) dollars, to be applied and used for the relief and support of aged ministers of the gospel of Christ of said Christian Church and their wives. (3) I hereby direct said trustee to give to the National Woman's Board of Missions, also a corporation under the laws of the state of Indiana, one thousand ($1,000) dollars, said money to be used by them solely in the work of negro education evangelization. (4) I hereby direct that out of the proceeds of said property the said trustee shall pay to my great grandson, Herbert Amos Lewis, of Storm Lake, Iowa, eight hundred ($800), to be used by his parents in his education. (5) I hereby direct said trustee that out of the proceeds of said property he is to pay to the Northwestern Missionary Society for the Christian Church seven hundred ($700) dollars, to be used by them only in the northwest district of Iowa, and said sum is to be paid to its secretary. (6) I hereby direct the trustee named to pay to my grandson, Scribner Herbert Lewis, of Storm Lake, Iowa, all the rest, residue, and remainder of my property after the above provisions are complied with, be the same real, personal, or mixed, and wheresoever located to be his property absolutely, after the five provisions are fully complied with. Lastly. I hereby direct said trustee to sell the real estate above described or so much thereof as is necessary, and first apply the proceeds thereof to the payment of the five first provisions hereof, and when they have been complied with to turn over to my grandson all moneys and property then on hand. Dated at Storm Lake, Iowa, this 25th day of August, A. D. 1903. Julia E. Crockett.”

In October, 1903, the trustee quitclaimed the above-mentioned lot in Storm Lake to Mrs. Crockett, and thereafter she sold and conveyed it to a third person not a party to this suit. On December 9, 1903, Mrs. Crockett died intestate, leaving the plaintiff, Scribner Herbert Lewis, as her only heir at law. Thereafter, proceeding on the assumption and claim that the deed and declaration of trust to Curnutt were void, plaintiff brought this action to quiet the title to the 80-acre tract of land in himself. By their answers and cross-bills the defendants deny the plaintiff's claim of title and ask to have the deed and declaration of trust confirmed and established according to the expressed intention of their grantor. Replying, the plaintiff alleges that the conveyance to the trustee and the written instrument defining the trust do not in fact create a trust as known or defined by law, but are in the nature of a last will and testament, and, not being executed and witnessed as the statute requires, such testamentary provision is void, and no right or title in the property can be predicated thereon. Upon the issues thus joined the trial court found for the plaintiff and entered a decree quieting the title in him as prayed. The defendants appeal. The appellee plants his claim to the relief demanded upon the single proposition that the disposition or attempted disposition of her property by Mrs. Crockett was testamentary in character, and the writings, not having been executed in the manner and form required by statute respecting wills, are without legal force or effect. If the term “testamentary” is to be so defined as to include every provision by which a person may in his lifetime direct or control the disposition which shall be made of his property and estate after his death, then the correctness of the appellee's theory would necessarily have to be conceded; for it is too clear for controversy that by the deed and trust instrument executed by Mrs. Crockett she sought, while reserving to herself the beneficial use and enjoyment of her property during her life, to designate those who should come into its enjoyment after her death. But not every method by which such ends may be legally accomplished is testamentary. A valid testamentary provision is a provision made by will duly executed in substantial conformity to the law. It speaks, and is intended to speak, from the date of the death of the testator, and not earlier. Until that time the title, legal and equitable, remains unchanged in the testator, and he may sell, convey, and dispose of the same as fully and completely as if no will had ever been made by him. No right, title, or interest of any kind in the thing devised or bequeathed passes to the devisee or legatee until the death of the testator, and not then if it appear that he has otherwise disposed of the subject of the devise or bequest during his lifetime. But the disposition of property after the death of the owner, the uses to which it shall be devoted, and the designation of the persons who shall then come into its beneficial use and enjoyment, is often effectually accomplished otherwise than by will. For example, the owner of real estate may without any valuable consideration make and execute an ordinary deed of conveyance to a designated grantee, and deposit the same in the hands of a third person, to be delivered to the grantee only upon the death of the grantor, and such conveyance is held to be operative, even though made without the knowledge, or express or formal consent or acceptance, of the grantee. See Foreman v. Archer (decided at the present term) 106 N. W. 372, and cases there cited. This is certainly true where the deposit is made without any reserve power to recall it; but even a reserved power to recall, which is not exercised during the life of the grantor, has been held by us not to destroy the effectiveness of the conveyance. Lippold v. Lippold, 112 Iowa, 134, 83 N. W. 809, 84 Am. St. Rep. 331;Newton v. Bealer, 41 Iowa, 334. The same purpose to direct and control the disposition of property beyond the life of the owner is very frequently accomplished through a trustee, who may be appointed by will, or by deed, or other suitable declaration of trust. Subject only to the condition that the purpose of the trust be not in contravention of the command or policy of the law, the right and power of the owner of property to thus dispose of it is elementary, and we need not stop here to cite authorities. In the language of Earl, J., in Hollis v. Drew Seminary, 95 N. Y. 166: “The general rule is that one may do with his property as he pleases. He may dispose of it by will in any way that suits his fancy or judgment. He may give it all to strangers, and disinherit his relatives. He may give it all to natural persons, or to corporations capable of taking. He may give it directly, or create trusts which the law allows; and this general power of disposition he possesses down to the last hour of conscious intelligent existence. It is not against public policy to allow gifts to charitable, benevolent, scientific, or educational institutions. The law allows and encourages such gifts, and those who make them are commended as benefactors of their race. Such institutions, dotted all over our land, to succor, elevate, and educate men, and ameliorate their condition, are distinguishing features of our modern civilization.” Whether the the trust be created by will or by deed, if it be lawful, and the intent can be fairly ascertained from the examination of the instrument, the courts will uphold and enforce it. To that end they will not be restrained by narrow and technical rules of construction; but, if the intent of the grantor or donor be apparent, even though not expressed with technical nicety, the trust will not be avoided. “The intent of the settlor in the creation of trusts is what the courts look to, and not to any particular form of words; and that is to be carried into effect unless it contravenes some public policy of the law.” Wright v. Miller, 8 N....