Straw v. Mower

• Decision Date: 07 October 1925
• Citation: 130 A. 687
• Parties: STRAW et al. v. MOWER et al.
• Court: Vermont Supreme Court

130 A. 687

STRAW et al.

v. MOWER et al.

Supreme Court of Vermont. Lamoille.

Oct. 7, 1925.

Appeal from Court of Chancery, Lamoille County; Julius A. Willcoz, Chancellor.

Suit by A. R. Straw and others against Richard Mower and others. Prom a decree of dismissal, plaintiffs appeal. Reversed and remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.

W. E. Tracy, of Johnson, and W. A. Dutton, of Hardwick, for appellants.

H. M. McFarland, of Hyde Park, for appellees.

SLACK, J. This case comes here on plaintiffs' appeal from a decree sustaining the demurrer to the complaint and dismissing the complaint.

The plaintiffs are children or grandchildren or, as we understand, legal representatives of children or grandchildren of Thomas A. Straw, formerly of Stowe, Vt., deceased, by a second wife, Caroline (Rand) Straw; and the defendants, except Luce, are children or grandchildren or, as we understand, legal representatives of children or grandchildren, of said Thomas by his first wife, Phoebe (Wilkins) Straw. Luce is administrator of the estate of Mary A. Jenney, a daughter of Thomas A. Straw by his second wife.

The material allegations of the complaint are, in substance, these: The said Thomas A. Straw was twice married. By his first wife he had four children, namely, Phoebe, Henry, Nancy, and Lucretia; and his second wife bore him five children, namely, Albert, Mary, Rose, Herbert, and Hattie. Mary married George W. Jenney about 1866, and they lived together at Stowe until his decease in 1888. Thereafter she continued to reside at Stowe until October 1916, when she died intestate and without issue. She was survived by all of her own brothers and sisters and by her half-sister Lucretia. Herbert and Rose have since deceased. On June 21, 1916, Mary conveyed to Albert and Rose certain real estate and personal property by deed, which is in the language following:

"Know all men by these presents: That Mary A. Jenney of Stowe, in the County of Lamoille and State of Vermont, in consideration of One Dollar and other valuable considerations paid to my full satisfaction by Albert R. Straw and Rose D. Straw, Trustees, of Stowe, in the county of Lamoille and State of Vermont, by these presents, do freely give, grant, sell, convey and confirm unto the said Albert R. Straw and Rose D. Straw and their heirs and assigns forever, a certain piece of land in Stowe, in the county of Lamoille and State of Vermont, described as follows, viz.: [Here follows a description of the real estate]. I also convey all my personal estate of every name and nature including household furniture, all bills and accounts due me.

"To have and to hold said granted premises, with all the privileges and appurtenances thereof, to the said Albert R. Straw and Rose D. Straw, Trustees as aforesaid, their heirs and assigns forever; and I, the said Mary A. Jenney, for myself and my heirs, executors and administrators, do covenant with the said Albert R. Straw and Rose D. Straw, Trustees as aforesaid, their heirs and assigns that until the ensealing of these presents I am the sole owner of the premises and have good right and title to convey the same in manner aforesaid; that they are free from every incumbrance; and I hereby engage to warrant and defend the same against all lawful claims whatever."

For some years prior to the giving of said deed, Albert, with his family, resided in a portion of the grantor's house, and Rose occupied rooms with the grantor in the same house, the two "keeping house by themselves for the most part" The three were always very friendly. In the spring of 1916 Mary's health began to fail, and she talked with Albert about disposing of her property, and some time before the execution of said deed she told him and Rose what disposition she desired to make of her property, and gave them instructions concerning the same. When the deed was executed and delivered, it was with the express understanding between Albert and Rose and Mary that the deed was not intended to convey to the grantees absolute title to the property therein described, but that they took the property as trustees, and were to dispose of it according to said verbal instructions. Those instructions were that said property should be used, first, to pay the debts and funeral expenses of the grantor; second, a sufficient sum should be set aside to care for the Jenney family burying lot in Rlverbank Cemetery in Stowe; third, markers should be provided for the graves of the grantor, her husband, her sister Rose, and her sister Mrs. F. O. Burt; fourth, Rose should be supported during her lifetime out of the income of said estate; fifth, Albert should be provided for during his lifetime out of the income of said estate, if such income were sufficient for that purpose, and, if not, he had the right to use so much of the principal as was necessary for his proper caro and maintenance; and sixth, at the decease of Albert, one-third of what remained of said estate was to go to the children of Herbert, a like third to the children of Hattie, and the remaining third to the children of Albert. All of the conditions of said trust except the last have been fully carried out and performed in accordance with said verbal instructions. The heirs-at-law of Mary, other than those benefited by said trust, are now attempting to have her estate administered. The defendant Luce has been appointed administrator of said estate, and is demanding of Albert that he surrender and turn over possession of all the real estate and personal property described in said deed to him, the said Luce, that the probate court within and for the probate district of Lamoille is demanding of Albert that he account to it for all of said property, and by reason of the premises Albert is hindered and prevented from executing and carrying out the terms of said trust. The prayer of the complaint is for a decree establishing said trust according to the terms set fourth in the complaint, and for a perpetual injunction enjoining the defendants from further interference with Albert in carrying out the provisions of said trust. The complaint is duly subscribed and sworn to by Albert.

The defendants Mower, Cheney, McMahon, and Bundy filed a joint and several answer, in which they incorporated a demurrer, assigning as the grounds therefor the following: (1) The trust sought to be established by the complaint was not created or declared by an instrument in writing, signed by the party creating or declaring the same, or by his attorney; (2) the trust sought to be established by the complaint was founded on no consideration, contained no names of beneficiaries, did not set forth the terms of any trust or establish the same, and is therefore void; and (3) the attempted disposition of the property by deed, as set forth in the complaint and as claimed by the plaintiffs, is testamentary in character, and cannot be enforced.

The other defendants filed no pleadings, but that circumstance, so far as appears, has not been noticed thus far, and, since the questions presented for review are not affected thereby, we notice it only for the purpose of indicating that the situation has not been overlooked by us.

So far as the personal property is concerned, the first objection interposed by the demurrer cannot avail the defendants, since a voluntary trust in such property may be created by parol. Williams v. Haskins' Estate, 66 Vt. 378, 29 A. 371; 26 R. C. L. 1194; 39 Cyc. 51, and cases there collected.

Whether the objection can avail as to the real estate depends upon the force and effect to be given to the complaint, the allegations of which are admitted by the demurrer, or whether it can be said that the allegations of the complaint show that the trust has been so far executed as to take it out of the statute.

The deed, on its face, conveyed to the grantees full and absolute title to the property therein described; the word "trustee," as there used, being merely descriptio persona?. This conclusion is supported by Fargason v. Ford, 119 Ga. 343, 46 S. E. 431; Cairns v. Hay, 21 N. J. Law, 174; Hart v. Seymour, 147 Ill. 598, 35 N. E. 246; Greenwood Lake, etc., R. Co. v. New York, etc., 134 N. Y. 435, 31 N. E. 874; Fowler v. Coates, 201 N. Y. 257, 94 N. E. 997; Towar v. Hale, 46 Barb. (N. Y.) 361; Title Guarantee, etc., Co. v. Fallon. 101 App. Div. 187, 91 N. Y. S. 497; Kanenbley v. Volkenberg, 70 App. Div. 97, 75 N. Y. S. 8; Van Schaick v. Lese, 31 Misc. Rep. 610, 66 N. Y. S. 64; Pfeiffer v. Rheinfrank, 2 App. Div. 574, 37 N. Y. S. 1076; Greenfield v. Stout, 122 Ga. 303, 50 S. E. Ill; Love v. Love, 72 Kan. 658, 83 P. 201; Clapp V. Maurer, 94 Kan. 549, 146 P. 1155.

Until the capacity in which the grantees hold the property was disclosed by the complaint, there was no ground, so far as appears, upon which their title thereto could be challenged.

But the defendants contend that, since it appears from the complaint that the grantees hold the property in trust, and also that the trust agreement under which they hold it rests entirely in parol, the plaintiffs' case falls. This claim rests, of course, on the assumption that the complaint itself does not constitute a declaration of trust within the meaning of G. L. 2745, which provides that—

"A trust concerning lands, excepting such as may arise or result by implication of law, shall not be created or declared, unless by an instrument in writing signed by the party creating or declaring the same, or by his attorney."

The seventh section of the English statute of frauds (29 Car. II, c. 3, § 7) enacted that all declarations or creations of trusts or confidences in any lands, tenements, or hereditaments "shall be manifested and proved, by some writing signed by the party who is by law to declare such trust, or by his last will in writing," or else they shall be utterly void and of no effect. That statute has been substantially re-enacted in some of the United...