McClellan v. McClellan

• Decision Date: 06 April 1876
• Citation: 65 Me. 500
• Parties: ELIZABETH MCCLELLAN et als., in equity, v. JOHN R. MCCLELLAN et al.
• Court: Maine Supreme Court

65 Me. 500

ELIZABETH MCCLELLAN et als., in equity, v. JOHN R. MCCLELLAN et al.

Supreme Judicial Court of Maine.

April 6, 1876

1872.

BILL IN EQUITY.

On August 20, 1864, Judah McClellan died intestate leaving a widow, seven sons and two daughters, and two granddaughters children of a deceased sister. The heirs entered into negotiations for dividing the estate without probate administration. A compact of nine articles as a basis of settlement was drawn up, and signed by the widow and eight of the heirs, three not signing, of whom one had authorized the signing, one had signed a copy of eight of the nine articles and the remaining son John J. McClellan since deceased intestate (March 3, 1865,) was named in article 6, which provides that " all the children shall execute a deed or deeds to John of all their interest in the real estate to enable him to carry out the provisions of the compact, John to give back a document setting forth the purposes for which the deeds are given and obligating himself to carry out the provisions."

All the other heirs, soon after the signing of the compact, gave John a power of attorney to transfer stocks, and quit claimed for nominal consideration their interest in the real estate. John sold the stocks and most of the real estate, declared and paid a dividend of $5,000, to the mother and the same sum to each of the heirs, and died shortly after, leaving these defendants as his widow and heir who was a minor, and leaving as the bill alleges, the trust unexecuted in part to wit: he did not set off to Elizabeth, the widow of Judah, a part of the homestead, did not sell the residue, and did not procure her release of dower. The complainants prayed that the defendants might be adjudged to hold the remaining property in trust for the complainants, be required to convey the same to a new trustee, and for general relief.

It did not appear that John ever gave back the document stipulated in article 6, but many documents and letters were in evidence, some of them dated before and some after the making of the compact, and signed by him, showing his efforts to bring about the compact, and his recognition of it afterwards.

It appeared that John J. McClellan, on August 28th, 1864, wrote to certain brothers residing in New York and other states, announcing the death and befitting burial of their father. In that letter he made a rough estimate of the value of the property together with a proposal for a family settlement, saying among other things the following: " This proposition is satisfactory to all here… If it meets your views, it stands as a basis of a peaceful settlement of father's estate… Some one of the family must be empowered to settle the estate. As I am here and have no business at present, it is proposed that I should take upon myself this charge. If it be agreeable to you, I am willing to undertake it, and will try to do it in a manner satisfactory to all concerned. We shall use our utmost efforts to make a speedy and peaceful settlement of the estate, and I invoke your assistance in rendering this mark of respect to the memory of our late father… Mother expresses her entire satisfaction and acquiescence in the proposed settlement. I shall try to sell the real estate and divide the property within ninety days from date of decease. This was accepted and the ‘ compact’ formally written out and executed as above mentioned."

Several letters written by John J. to his brothers, sisters and nieces, recognizing the " settlement," among them a letter to Edward, of October 27, 1864, in which is the following: " After considerable trouble and a special visit to D., I have obtained the assent of the whole family to the proposed " " " settlement." After enumerating the pieces of property sold by him and the sums realized, he adds: " I propose to make a dividend of $5,000 on a share."

On Nov. 24, 1864, he wrote again to Edward: " I am ready to divide $5,000 per share on the 20th instant."

On Nov. 29, 1864, again to the same: " On the 21st I distribu-uted $5,000 on a share, as follows: (then follows a detailed statement of the sums in stocks, & c.)

On Nov. 23, 1864, he wrote to the granddaughter Emily Sanborn: " You are entitled to receive from your grandfather's estate on the first dividend, $2,500, being one-half of $5,000, on a full share.

By virtue of the power vested in me, I have assigned to you

5 shares Northern Bank, Hallowell, $100 each, $500.00

2 shares Augusta Bank, 80 160.00

6 shares Ticonic Bank, Waterville, 75 450.00

Sept. 2st, 1864. Cash, Nov. 8th, 1864, 50.00

A. & P. Coburn's note and interest, to Nov. 21, 1864, 1040.29

Cash to balance, 299.71

$2500.00

He also made returns to the collector of internal revenue which he signed as " " " trustee."

D. D. Stewart, for the defendants contended that the bill could not be maintained because the compact was not signed by all the parties, because the widow's interest was different from that of the heirs, because no trust was created, and because a decree for conveyance cannot be made against an infant.

S. Coburn, for the plaintiffs.

VIRGIN J.

On August 20, 1864, Judah McClellan died intestate, leaving a widow, seven sons and two daughters, and two granddaughters, children of a deceased daughter. Soon afterwards, his son Samuel died, leaving two children.

The widow, seven children and four grandchildren bring this bill against the widow, and sole heir of the remaining son, John J. McClellan, since deceased, intestate, alleging substantially that the complainants and the said John, soon after the decease of said Judah, entered into a family compact as a basis of settlement of the estate of said Judah, by which all except a portion of the homestead was to be sold and the proceeds divided equally among the widow and the ten children, the two granddaughters " together taking their mother's share; " that, in order to carry out the agreement, the other heirs conveyed all their interest to John who was to sell the property and divide the proceeds as above; that John took the property in trust for the purposes mentioned, sold a part, made one dividend of $5000 per share and died before fully executing the trust, leaving these defendants as his widow and heir. The complainants pray that the defendants may be adjudged to hold the remaining property in trust for the complainants, be required to convey the same to a new trustee to be appointed, and for general relief.

Did the acts and agreements of the widow and heirs of Judah McClellan create in fact a trust in the property of which he died seized?

Considering the title as an inheritance, the number of heirs, the release of the whole to John, the acceptance and disposal of it by him, the relations of the parties, together with the purposes and objects in view as evidenced by the distribution of the proceeds we can entertain no doubt of the fiduciary relation between the original parties. But that is not enough.

The law governing the question whether a trust can be established and enforced, is to be found in the statute concerning trusts. This statute was derived (through our mother commonwealth) from the statute of Car. 2, c. 3, § 7, which provided that " all declarations or creations of trust or confidences of any lands, tenements or hereditaments shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or else they shall be void." In Forster v. Hale, 3 Ves. 696, the master of the rolls construed this section as not requiring that trusts shall be " created" only by a writing; but that they shall be thus " manifested and proved; " for then the great mischief of parol declarations against which the statute was intended to guard, is entirely taken away. This view was confirmed on appeal, by Lord Ch. Loborough, in the same case in 5 Ves. 308., and the same construction is still maintained by the English courts. Smith v. Matthews, 3 De G. F. & J., 139, 150.

The Mass. statute of 1783, c. 37, § 3, so far as express trusts are concerned, was a transcript of the English.

The legislature of this state, for some cause, omitted to incorporate this or any similar provision in the statute of 1821, c. 53; but the omission was supplied in 1827, by enacting the provision in terms as " an act additional to c. 53." Stat. 1827, c. 358. In 1837, while this statute was in force, this court said, " a trust need not be created in writing; it is sufficient if it be proved in writing under the hand of the party to be charged." See U. Soc. v. Woodbury, 14 Me. 281. Again, in Evans v. Chism, 18 Me. 223. " Courts of equity have not considered any of the provisions of the statute of frauds as violated by giving effect to a trust not originally created, but afterward proved or admitted to exist by some written document."

In the revision of 1841, c. 91, § 31, the original section, so far as it related to express trusts, was condensed to the following terms: " All trusts concerning lands. . must be created and manifested by some writing signed," & c. It seems the terms " created and manifested" were considered as working " a most important change in the law" --that trusts must be created by writing; and that it was not sufficient that they were subsequently admitted, acknowledged or declared in writing. Richardson v. Woodbury, 43 Me. 206. But in the revision of 1857, c. 73, § 11, the particular phrase mentioned was changed to " created or declared." It is the same in the revision of 1871, c. 73, § 11.

One of the principal designs in revising and codifying the public laws is to condense them so far as practicable--a mere change of phraseology not being deemed a change of the...