Fellows v. Fellows , 69 N.H. 339 ( 1898 )

March 31, 1870, Stevens Fellows and wife conveyed to James Fellows, their son, real and personal property exceeding $4,000 in value, and James executed and delivered to Stevens a bond for the support of Stevens and wife and to "pay as soon as convenient after their decease" to Susan Hardy and Betsey Scribner, or their heirs, the sum of $600. Susan and Betsey, the remaining children of Stevens, were informed of this provision. This bond was secured by a real estate mortgage from James and wife to Stevens. Stevens and wife are both dead, and the material question in the case is whether a release of the condition of James' bond by which he covenanted to pay the $600 to Betsey and Susan, given James by Stevens in June, 1877, is valid and effectual against the claim for that sum now made by the assignee of Betsey and Susan.

The only ground urged against the validity of Stevens' release is that by the transaction of March, 1870, a trust was created irrevocable by Stevens. If a trust is perfectly created and nothing is required of the court but to give effect to the trust as an executed trust, it will be carried into effect, though without consideration. If the settlor, by a clear and explicit declaration duly executed and intended to be final and binding upon him, makes himself a trustee, courts of equity will enforce the trust. If the donor or settlor does not propose to make himself a trustee, the trust is not perfectly created. So an intention merely to make a testamentary disposition cannot be carried into effect unless the instrument evidencing the same is capable of proof as a will. 1 Per. Tr., ss. 96-98. Where the trust clearly proved, the results which follow therefrom are beyond question. But whether in a particular case the intention of the settlor is established, and whether he has effectuated that intention by parting with all control and dominion over the subject of the trust, — that is, whether the trust is perfectly created, — are often questions of great difficulty. Whether the trust is perfectly created or not is a question of fact in each case. 1 Per. Tr., s. 99. These questions have most frequently in recent times arisen in connection with deposits in banks in the name of the depositor as trustee for another, or in the name of another directly. This case is determined by the adjudications in this court in that class of cases. In determining the relations between James and Stevens and Betsey and Susan, the whole transaction must be taken together. Considering only the bond given by James with the mortgage, if the same were without consideration it might properly be said that James was the creator of a voluntary trust, perfectly created, which he could not revoke, and which Stevens, as the holder of the legal title, a mere naked trustee, could not release. Jones v. Jones, 66 N.H. 198. The mortgage is the only portion of the transaction considered in McPherson v. Rollins,107 N. Y. 316, which is cited as a case exactly in point. But James' mortgage and bond were upon a valuable consideration moving from Stevens, and he was in no sense the creator of a trust, except as every mortgagor by the giving of a mortgage creates a trust in the security bound for the performance of the condition. He can no more be regarded as the creator of the trust than a savings bank which receives a deposit in the name of A, in trust for C. The obligations of both rest in contract and they cannot release themselves.

The consideration of James' bond and mortgage was the conveyance of real and personal property to him. Stevens' conveyance to James was absolute and contained no declaration of trust. If it was upon James' agreement to pay $4,000 to Stevens, or $3,400 to Stevens, or to support him for life and pay $600 to Betsey and Susan, no trust attached to the land upon failure of James to perform his agreement. G.S., c. 121, s. 13; Farrington v. Barr,36 N.H. 86. Whether a portion of the property was a gift to James or not is immaterial. The agreement to support and to pay $600 was the consideration to which both parties assented. The parties understood at the time that the agreement to support was not a sufficient consideration. Stevens required and James agreed to pay a further consideration of $600, payable at the termination of the agreement to support and after its fulfillment. If the matter rested here, Stevens could at any time, upon terms satisfactory to himself, have released James from the payment. The question is, whether by accepting from James, as part of the consideration, his covenant to pay Betsey and Susan $600, in place of a note or agreement payable to himself, Stevens deprived himself of all power and dominion over the $600 so that he could not afterward appropriate it to his own uses. What the reasons were, satisfactory to him, for which he executed the release to James are immaterial. If he could release him upon payment to him of the $600 or its present worth, he could for a less sum. Having received the amount, he could give it to James, or could make him a present of a release.

If the taking of the bond to him was an appropriation of the fund owed by James, in trust for Betsey and Susan, Stevens was both the creator of the trust and the trustee. If James failed to perform according to his mortgage, Stevens upon foreclosure would hold the land. If the acceptance of James' agreement created a valid trust which Stevens could not revoke, then the foreclosure would not revoke it, and the land would stand in Stevens' hands as trustee, charged with the payment of the $600 at his decease; because if neither James nor Stevens could cancel James' agreement to pay that sum, the security appropriated by James for its payment would be held in trust for that purpose, and performance could be enforced by a suit in the name of Stevens' administrator (Holmes v. Fisher, 13 N.H. 1; Northy v. Northy, 45 N.H. 141), or by the appointment of a trustee if necessary. Perkins v. Perkins, 60 N.H. 373. Did Stevens intend a present gift to Betsey and Susan, or a testamentary disposition of such of his estate as he understood would remain at his decease? In order that the money, whether a deposit in a savings bank or a right to money in the hands of another, should pass as a present gift or trust, it must appear that a gift or trust was intended, and parol evidence is admissible to prove such intent. Smith v. Bank, 64 N.H. 228; Marcy v. Amazeen, 61 N.H. 131; Towle v. Wood,60 N.H. 434; Bartlett v. Remington 59 N.H. 364; Blasdel v. Locke,52 N.H. 238. As to what constitutes sufficient evidence of an intention to make a gift or declare a trust, the authorities are not agreed. See64 N.H. 228, 232; 1 Per. Tr., s. 99. In Martin v. Funk, 75 N.Y. 134, relied upon in support of McPherson v. Rollins, 107 N.Y. 316, before cited, it was held that the mere deposit in the name of the depositor in trust for another constituted an effectual trust. In Beaver v. Beaver,117 N. Y. 421, in commenting upon Martin v. Funk, it is said: "The court applied the doctrine that the owner of a fund may, by an unequivocal declaration of trust, impress it with a trust character, and thereby convert his absolute legal title into a title as trustee for the person in whose favor the trust is declared. . . . To constitute a trust, there must be either an explicit declaration of trust, or circumstances which show beyond a reasonable doubt that a trust was intended to be created." In this case it was held that the mere deposit by the father of money in a bank in the name of his son was insufficient alone to establish a trust or a gift. In Cunningham v. Davenport, 147 N.Y. 43, the plaintiff deposited his own money in a bank in his own name, in trust for his brother. His brother died, and his administrator claimed the money. The depositor denied that he intended to give the money to his brother. The administrator relied upon Martin v. Funk and cases, following it in New York. Willis v. Smyth,91 N.Y. 297; Mabie v. Bailey, 95 N.Y. 206. In Cunningham v. Davenport, the court say: "The doctrine laid down by this court in the previous cases amounts to this, that the act of a depositor in opening an account in a savings bank in trust for a third party, the depositor retaining possession of the bank-book and failing to notify the beneficiary, creates a trust if the depositor dies before the beneficiary, leaving the trust account open and unexplained." As thus modified, Martin v. Funk does not seem to us an authority for the proposition to which it is cited in McPherson v. Rollins. In Cunningham v. Davenport it was held that no trust was created, as none was intended, — a fact which appears to be found on the plaintiff's statement of his intention.

In Kelsey v. Cooley, 11 N.Y. Supp. 745, it appearing that property was conveyed and a mortgage taken conditioned for the payment of certain sums after the death of the mortgagee, for the purpose of making a testamentary disposition of the estate, the subsequent discharge of the mortgage by the mortgagee was upheld. The court say: "The alleged purpose shows that he intended that his grandnephews, after his death, should receive certain portions of his property, but it never occurred to him that he was creating a present interest or trust in their favor which would prevent him from exercising dominion over it, or changing his mind during his lifetime. His subsequent discharge of the mortgage shows that such were his views. See Jones v. Lock, L.R. 1 Ch. 25."

In the present case there was no express declaration of trust; the legal title to the mortgage and the bond remained in Stevens. He retained the dominion and control over the property. For failure by James to perform his covenant to support, Stevens could have foreclosed and taken possession. If the trust had been established which Stevens could not revoke, the result would then be that Stevens would hold the land charged with a trust for the payment of $600 to Betsey and Susan. But the main object of the transaction, as disclosed, was to provide for Stevens and wife during life and to dispose of the remnant of his property at his decease. It cannot be inferred that Stevens' intent was to deprive himself of the use of a portion of his property for his support if the default of James or other reasons required him to use it. At least, a provision that this remnant should be paid to Susan and Betsey when he had no further use for it is not sufficient evidence to establish such an intent. The trust claimed cannot be established on the evidence. It was a mere testamentary provision.

The case of Barber v. Thompson, 49 Vt. 213, is distinguishable in that the payment was not contingent upon the death of the mortgagees, but was to be made within six months of the date of the transaction, and the proceedings were in no sense testamentary. The court find in the case an intent to make an irrevocable gift. Barber v. Thompson was followed in Sargent v. Baldwin, 60 Vt. 26, under circumstances more nearly resembling the present. The court recognize the fact that the original grantor would regain his title in case the mortgagor failed to fulfill the contract for support, upon which the one for payment is necessarily dependent, but do not consider whether the dominion and control thereby retained over the property by the creator of the trust affect its creation.

The cases which hold that the conveyance of property in consideration of an agreement to support and for the payment of money to a third person constitutes it trust irrevocable by the original grantor, lose sight of the fact that a trust cannot be created unless such is intended, and confuse the trust imposed in every case upon security mortgaged — that it be applied to the performance of the condition for which it is held, a trust upon consideration which is irrevocable by the mortgagor — with the trust supposed to be voluntarily created by the original grantor, by the terms of the bond or agreement accepted by him as a consideration for his conveyance. So far as the question of the right of discharge by the mortgagee or obligee is concerned, the taking of the mortgage is evidence that a right of revocation is retained. Had Stevens had an intention to create an irrevocable trust in the land for Betsey and Susan, he could have expressed that intention by an express declaration of trust in himself, or by requiring of James a declaration that he held the lands in trust for the support of Stevens and wife and the payment to Betsey and Susan. In this case, if James failed to perform the trust, Stevens' only remedy would have been through proceedings in equity to secure the application of the trust property to the purposes of the trust, and James would have had no liability beyond the trust property. But Stevens preferred to take James' agreement in place of a declaration of trust, — an agreement which he could enforce at law by suit on the bond or foreclosure on the property. In place of an instrument declaring absolutely an intention to create an irrevocable trust, he took one which does not clearly declare such an intention, and in the absence of evidence and a finding that such was his intention, it cannot be held an irrevocable trust was intended. Stevens might have taken a note from James, payable to Betsey and Susan at his death, and delivered it to them, from which evidence a present gift could be found; but that he adopted none of these courses to produce the result claimed, is not evidence that he intended such a result.

The case is exactly as if he had deposited $600 in a savings bank in his own name, payable upon his death to Betsey and Susan, retaining the book with the right, in case an agreed annual interest was not paid him, to withdraw the money. Upon the New Hampshire cases cited, the money would not pass to Betsey and Susan as a gift or trust without a finding that such was intended. The law is not different because the deposit was land and chattels instead of cash, with an individual rather than a bank, or because Stevens' right to reclaim was dependent upon James' performance of an agreement to furnish support rather than to pay interest.

So far as the cases in Vermont are in conflict with these views, we are unable to follow them.

The evidence of Stevens' declarations that he intended to discharge the bond so far as it related to Susan and Betsey was competent on the question whether he did execute the discharge, which was one of the questions at the trial. Wiggin v. Scammon, 27 N.H. 360, 365. Whether these declarations and the fact of the discharge are competent on the question of Stevens' intention, it is not necessary to consider. See Smith v. Bank, 64 N.H. 228; Cunningham v. Davenport, 147 N.Y. 43; Kelsey v. Cooley, 11 N. Y. Supp. 745.

The plaintiffs in the first case claim to have made a valid tender to the defendant Amelia Fellows, May 5, 1895, of the amount due upon the Childs mortgage, and April 6, 1896, paid into court $1,120.83.

It is not necessary to consider whether the facts found would otherwise constitute a legal tender, because the amount tendered was clearly insufficient. Amelia paid in the years 1891 to 1894, as interest on this mortgage, $240, and March 13, 1895, paid principal and interest, $1,060, making the sum of her payments, without interest, $1,300. If she had not made the interest payments as due, this sum at least would have been due upon the mortgage at the time of the tender, and to obtain the discharge from Childs, if Amelia had not interfered, the plaintiffs would have been obliged to pay that sum. To obtain the discharge of the mortgage in Amelia's hands, the plaintiffs must pay the same sum, unless in making interest payments Amelia was discharging a duty she owed. But she was not the tenant of the life estate. She had an interest in the life estate to the extent of her homestead right in her husband's estate, which she had the right to protect. But she was under no obligation to keep down the incumbrances upon the balance of the estate, or to contribute thereto except in the proportion of the value of her interest to the balance of the estate charged with that duty. As upon any view that can be taken of this question the amount tendered was insufficient, the necessary result is the dismissal of the bill as brought. But as the plaintiffs have secured the allowance of an amendment making the proceeding a bill to redeem from the Childs mortgage, the question is, what sum must be paid for that purpose. This sum is the sum of the payments made by Amelia on account of the mortgage, less the sum which her interest in the estate required her to contribute for its protection. How much of the interest paid by her was in fact for the protection of the estate of the remainder-men, and how much for the protection of her own estate, cannot be determined upon the facts found. It depends upon the relative value of her homestead of $500 in her husband's estate to the whole estate of the remainder-men. She is bound to contribute her proportionate share. That proportion is not found in the case and can be determined at the trial term. The $44 loaned James was not paid to protect the estate from the mortgage, but to enable James to discharge a debt incurred by him in the performance of his duty as life tenant, and cannot be recovered by Amelia as part of the mortgage debt. Neither would James' representation, that the $163 furnished by Amelia for his maintenance would be a lien upon the farm, authorize its addition to the amount of the Childs mortgage, or entitle her to hold the farm until it was paid, under any view that can be taken of James' title under Jane's will. The exception to the admission of the plaintiffs in the first suit to testify generally cannot be sustained. Chase v. Chase,66 N.H. 588, 592.

The second suit is dismissed. The amount due on the Childs mortgage will be determined upon the facts already found and such additional hearing at the trial term as may be necessary. upon the relative value of Amelia's homestead interest in James' life estate.

Case discharged.

BLODGETT and CHASE, JJ., did not sit: the others concurred.