Kinnebrew's Distributees v. Kinnebrew's Administrators , 35 Ala. 628 ( 1860 )

A. J. WALKER, C. J.

We assert the following propositions : 1st, that the trust, specified in the instrument executed by L. B. Kinnobrew, for the payment at his death, by his representative, to his grand-son, of fifteen hundred dollars out of his estate, was purely voluntary; 2d, that the trust was also executory; and, 3d, that being voluntary and executory, it would not, as a provision of an instrument operative inter vivos, be enforced by a court of equity. We proceed to adduce the arguments and authorities which lead us to assert those propositions.

The trust is voluntary. The characteristics of the instrument, from which the arguments upon this point are drawn, are — that it is under seal, and that it recites natural love and affection for a grand-son, as the consideration for the trust and the conveyance of a slave.

It is a principle well established, that equity will, in cases within its jurisdiction, give effect to executory obligations, which would be binding at law. TJpon this principle, bonds and covenants have been enforced in chancery against the covenantor or obligor, or his representatives, notwithstanding they were in fact voluntary; because the seal operated an estoppel at law against the denial of the consideration, and they were therefore obligations binding in a court of law. — Williamson v. Codrington, 1 Vesey, sr. 511; Clough v. Lambert, 10 Sim. (16 Eng. Ch.) 174; Hall v. Palmer, 3 Hare, (25 Eng. Ch.) 532; Fletcher v. Fletcher, 4 Hare, (30 Eng. Ch.) 67-76; 1 L. Cas. in Eq. top page 238, marg. 191. We do not say, that the instrument in this case contains a covenant for the payment of the fifteen hundred dollars, upon which suit at law might be brought; but, if it be conceded that it does, the principle above stated cannot apply; for, under our statutory law, the consideration of a sealed instrument may be impeached, and, if voluntary, it may be avoided by plea in a court of law. — Clay’s Digest, 340, § 153; Code, § 2230; Freeman v. Baldwin, 13 Ala. 252. That a seal conclusively implies a consideration, is not the law in this State.

While our statute allows the impeachment of a sealed instrument, for want of consideration, it does not interfere with the rule in reference to the variation of the legal effect of written instruments by parol proof. — 2 Phillipps on Ev. (ed. of 1859,) 652, note 489; McCurtie v. Stevens, 13 Weird. 527. If the instrument in this case, upon its face, purports to be upon a valuable consideration, it would be incompetent, in the absence of any question of fraud, for the maker or his representatives to change its legal effect, and defeat its legal operation as a conveyance, by showing through the agency of parol evidence that it was voluntary, and without a valuable consideration. — Eckles & Brown v. Garter, 26 Ala. 563; Murphy v. Bank, 16 Ala. 90; McRae v. Purheart, 16 Wend. 460; Grant v. Townsend, 2 Hill, 554; 2 Phillips’ Ev. (ed. of 1859,) 655, n. 490; 1 ib. 476, n. 131; 4 Greenleaf’s Cruise on Real Property, 23, n. 1.

But the instrument in this case does not, upon its face, purport to be upon a valuable consideration. When a court of chancery is asked to execute trusts, it will take judicial notice, t^at such a pecuniary consideration as five dollars is merely nominal, when there is a transfer of so much value as in the instrument under consideration. “It is to be observed, that a deed may be founded on some consideration, and yet still come within the technical definition of a voluntary instrument. In equity, the statement of a mere nominal pecuniary consideration certainly would not be allowed to affect the construction or operation of the deed.” — Hill on Trustees, 164, marg. 107. There are also numerous cases, in which the courts have, in the absence of all extrinsic evidence, denied to deeds reciting a nominal consideration any effect under the statute of frauds, when a valuable consideration was necessary to their validity. — Felder v. Harper, 12 Ala. 612; Murphy v. Bank, 16 ib. 90; McRae v. Pegues, 4 ib. 158; Ridgeway v. Underwood, 4 Wash. C. C. R. 133; Hatch v. Spaight, 3 Cow. 31. Erom these authorities it is a necessary inference, that when a valuable consideration is necessary to support a deed, the bare recital of a nominal pecuniary consideration will not be regarded as evidencing such valuable consideration. This doctrine is not at war with the principle, that the smallest actual consideration of benefit to the promisor is sufficient, to support a promise. — Chittyon Con. 29; Hubbard v. Coolidge, 1 Metc. 93; Lawrence v. McCalmont, 2 How. (U. S.) R. 452.

The only other consideration of the instrument in this ease is affection for a grand-son. Whether or not affection of the husband for his wife, and of a parent for his child, is such a consideration as will induce the enforcement of executory trusts, and place the beneficiaries of such trusts in a more favorable position than that of mere volunteers, is one of the mooted questions of the law. After referring to authorities bearing upon the question, we shall leave it undecided. — 2 Story’s Eq. Jur. §§ 987, 793; Hill on Trustees, top 129, marg. 83, note 1; 1 Lead. Cas. in Eq. (top 238,) marg. 191, top 213-47; Dwoll v. Wilson, 9 Barb. 187; Buford v. McKee, 1 Dana, 107; Adams’ Eq. 97; Andrews v. Andrews, 28 Ala. 432 ; Doe v. McKinney, 5 Ala. 719; Ex parte Pye, 18 Ves. 140; Popys v. Mansfield, 3 Myl. & Or. 359.# If affection be a sufficient consideration to support such a trust, it must be confined to the relation of husband and wife, or parent and child. The authorities do not authorize the extension of the principle to collateral kindred, or more remote descendants than children.

The trust is executory. The payment of the money was strictly a thing of future performance. Neither the legal nor equitable title to the property charged passed by the instrument. There was no declaration of trust by the maker, and the relation of trustee and cestui que trust was not created. Nothing more is done by the maker of the instrument, than to attempt to bestow a right to have, at his death, payment of fifteen hundred dollars from the representative of his estate. If any right passed, it was simply a right in action. There are none of the features of an executed trust, and the charge upon the maker’s estate falls within no definition or description of an executed trust. — 4 Kent’s Com. (top page) 336 ; Gill on Trustees, 137, (marg. ) 88-89; Lewin on Trusts, (marg.) 110; 1 Story’s Eq. Ju. § 433, note 5; 2 ib. § 978; 1 Lead. Cas. in Eq. 225, et seq.; Fonblanque’s Eq. 407, notes; Gordon v. Green, 10 Geo. 504; Dennison v. Goehring, 7 Barr, 107; Edmondson v. Dyson, 2 Kelly, 307-320; Andrews v. Hobson, 23 Ala. 231.

This case is not within the principle laid down in the cases of Pulvertoft v. Pulvertoft, (18 Vesey, 99,) and Ex parte Pye, (18 Vesey, 140,) which are cited for the appellee; because here there is no actual transfer, legal or equitable, of any thing. We have before us a bare attempt to transfer the right of having something done in futuro. It is analogous to an agreement to transfer stock, without an actual transfer, which is put, in Ex parte Rye, as an illustration of the character of voluntary-agreements, upon which the court of equity “will not interpose.”

The trust being executory and voluntary, it will not be enforced in equity, as the provision of a deed operative inter vivos. The proposition, that a voluntary executory trust will not be executed, is not disputed; and we need only refer to the authorities last above cited, and our own decision in Crompton v. Vasser, (19 Ala. 259,) which fully sustains it.

Having ascertained that the instrument before ns cannot operate as a deed as to the fifteen hundred dollars, we must next inquire, whether it is not, as to the fifteen hundred dollars, testamentary, and may not have operation as a will.

In considering whether the provision in question is testamentary, it must be observed, that the instrument certainly conveyed a present title, operative inter vivos, to the slave Philip, and was, quoad hoc, a deed. It was said in Thompson v. Johnson, (19 Ala. 59,) that it might be collected from a variety of cases, that one and the same instrument cannot be both a will and a deed. This remark may be correct in reference to the instrument which was then before the court; but it' cannot be true, as the authorities show, in reference to an instrument which employs variant and distinct terms in reference to different articles, clearly indicating the intent to give the one a testamentary, and the other a present operation. — Robinson v. Schly & Cooper, 6 Geo. 515; Dawson v. Dawson, 2 Strob. Eq. 34; 1 Jar. on Wills, 12, n. 1. While the provision as to the slave affords a strong argument against the position that the provision is testamentary; yet the argument is by no means conclusive. If it were, itwould follow, that it would be impossible to couch distinct provisions of the samé instrument, touching distinct property, in such language that the one would, and the other would not, be testamentary; and that a man could not write both a deed and a will upon the same paper, and over the same signature. A proposition leading to such a result, is unreasonable, and cannot command our approval. ■

'The judicial mind is required by an established principle to enter upon the inquiry, as to the character of the provision for the payment of fifteen hundred dollars, with a strong inclination to regard 'it as testamentary; for it can otherwise have no effect. The mere fact, that it can only have effect in a testamentary character, is suffic’eint to solve the difficulties of a doubtful case, and procure for it the construction which gives it validity. — Thompson v. Johnson, 19 Ala. 59; Dunn v. Bank, 2 Ala. 152; 1 Jaron Wills, 19.

Certainly, the instrument is in the form of a deed, and words of immediate transfer — “do give and grant” — are used. But that is not necessaril}’- a controlling consideration ; for the courts will pronounce an instrument to be a will, no matter what its form may be, if it is designed to make a posthumous disposition of property, and is really to take effect at death. — Hester v. Young; 2 Nelly, 50; 1 Jar. on Wills, 11-12-13.

The -words of preseut grant, in their application to the fifteen hundred dollars, are subjected to a qualification. That qualification is not fastened upon the transfer of the slave; and in that particular, as well as in its capacity to have an immediate effect, the provision as to the slave differs from that as to the fifteen hundred dollars. The qualification is, that the payment of the fifteen hundred dollars was to be made at the death of the maker of the instrument, out of his estate. There is no transfer of any designated or subsisting funds, the right to the actual use and enjoyment of which is postponed to the maker’s death; and that peculiarity makes this question totally unlike those questions which were decided in Elmore v. Mustin, (28 Ala. 309,) Golding v. Golding, (24 Ala. 122;) Wilks v. Greer, (14 Ala. 437,) Adams v. Broughton, (13 Ala. 731,) Summerlin v. Gibson, (15 Ala. 406,) and Simmons v. Augustine, (3 Porter, 69.)

There is a class of cases reported in the books, relating to instruments in which the maker promised to pay after his death, or covenanted that his representatives should pay after bis death, or in some way transferred an-unqualified right to payment by his representatives. — Shields v. Irwin & Reed, 3 Yeates, 389; Alexander v Brame, 35 Eng. Law &Eq. 336; Hunt v. Hunt, 4 N. H. 434; Jackson v. Jackson, 6 Dana, 457. The decisions in reference to such cases are conflicting, and we -shall not examine them. For inclining (as we must) to regard the provision in question as testamentary, we are authorized to take a view of it which distinguishes this from all those cases. The maker of the instrument before us does not promise to pay at his death, nor does he covenant that his representative shall pay at his death, nor.does he transfer an unqualified, right to have payment at his death from his representative. The right of payment at his death is clogged with this qualification, that it is to be made out of the estate of the maker. We understand “ the estate,” out of which the payment is to be made, to be the estate of which he might be the owner at his death. The executor or administrator could have access to no other for the purpose of payment. As the payment was to be made out of the estate which might be left at the death of the maker of the instrument, it remained under his control until his death. By disposing of his property before his death, and leaving nothing, he could entirely defeat the disposition. Alonzo B. Kinuebrew, the beneficiary, could not as a creditor avoid his voluntary dispositions of his property, nor file a bill for the protection of an interest by way of charge in remainder upon his estate. If there had been a conveyance of all the prop'erty which the maker of the instrument might at his death leave, it would have been clearly testamentary. Watkins v. Dean, 10 Yerger, 321. The character of the instrument cannot be changed, because it is a charge upon all the property, instead of a conveyance of the property itself.

The construction which we have adopted, if not in itself manifestly correct, is certainly permissible, under the rule which obliges us to incline to regard it as testamentary. Under that construction, the provision as to the payment of fifteen hundred dollars "was revocable, like a will; and being payable out of the estate left, by the executor or administrator, is, in every feature, identical with a legacy bequeathed by will. ¥e decide, therefore, that the instrument in question, so far as it transfers a claim to the payment of fifteen hundred dollars, was testamentary.

[4.] As the instrument, in its testamentary character, conveys only a pecuniary legacy, it cannot be recognized as valid in any forum, until it has been admitted to probate. — Shepherd v. Nabors, 6 Ala. 631; 1 Jar. on Wills, 213-214-215, n. 6; Fuller, Ex parte, 2 Story’s C. C. R. 327.

[5.] There was no error in the allowance of voucher No. 8.

For the error in the allowance of voucher No. 5, the decree of the court below must be reversed, and the cause remanded.