DeRoy v. Richards , 8 Pa. Super. 119 ( 1898 )

Opinion by

Smith, J.,

Specifications 1, 2, 3, 4, 5, 6, 7 and 9, are not in accordance with our rules of court. The first raises an objection to alleged secondary evidence, and to the inadequacy of the preliminary proofs to warrant its admission. Even if error to the introductory and the secondary evidence could properly be assigned in one specification, the testimony referred to nowhere appears in the assignment, nor is the name of a witness who testified on the subject or the page of the paper-book given. The second and third specifications are also defective in this respect; not giving the testimony objected to, the names of the witnesses or the page of the paper-book. The 4,5,6,7 and 9 specifications allege error in the admission of testimony not contained in the assignment, nor is its whereabouts otherwise designated. These specifications are in disregard of the specific requirements of Rules XV and XVII of this court. These rules are exactly similar to Rules XXII and XXIV of the Supreme Court and receive a like construction. Where they are not complied with, the specifications will not be considered: Hawes v. O’Reilly, 126 Pa. 440; Battles v. Sliney, 126 Pa. 460; Sticker v. Overpeck, 127 Pa. 446; Title Co. v. Gray, 150 Pa. 255; Reynolds v. Cridge, 131 Pa. 189; Rodovinsky v. Knitting Co., 5 Pa. Superior Ct. 636; Taylor v. Sattler, 6 Pa. Superior Ct. 229.

Whether the promissory note for which the judgment against E. DeRoy, Tr., was obtained was accommodation paper or given in the business of the trust, became pertinent under the issue of fraud in the trust raised by the defendant. So far as it served to throw light on that subject it was admissible to show the nature of the paper. This allegation of fraud became the principal question at issue. There is no doubt that the note held by the Bank of North America was a personal obligation of E. DeRoy. The addition of Tr. to his name was not of itself sufficient to qualify his personal liability. The rule is that the name of the principal intended to be charged must appear on the paper. If it be intended to charge- a maker or indorser, in a representative capacity, this must be indicated with reasonable certainty, so that subsequent purchasers and indorsers may be informed of the fact: Roberts v. Austin, 5 Wharton, 313; Tassey v. Church, 4 W. & S. 346; Sharpe v. Bellis, 61 Pa. 69; Seyfert v. McManus, 7 W. N. C. 39. This rule does not preclude proof that the note was given by an agent or trustee in the business of the agency or of the trust estate when the action remains between the parties to the contract: Wanner v. Emanuel’s Church, 174 Pa. 466. It is designed for the protection of innocent purchasers and indorsers.

It is not contended, in the present case, that the letters “ Tr.” after the name of DeRoy have any more force in the judgment than in the note upon which it is founded. This view has been abandoned and rejected by the defendant, as being without legal signification in either case.

The controvers}*- as presented, therefore,, is resolved into the question whether the trust set up by the plaintiffs was valid and conducted in a lawful, manner. That a trust may be established for the purposes mentioned in the present deed is not now to be doubted: Holdship v. Patterson, 7 Watts, 547; Mathews v. Stephenson, 6 Pa. 496; Gillespie v. Miller, 37 Pa. 247. But it is claimed that the present differs essentially from the trusts sustained in the cases cited, because in those cases the business was to be transacted in the names of persons other than the debtor, while here the defendant was authorized by the deed to act as trustee and conduct the business. Granting that DeRoy had exclusive possession and dominion over the property levied on, will this fact defeat the operation of the trust, in the absence of fraud, or of a claim of personal ownership or of a denial of the title of the cestui qui trustent? While it is the duty of a married woman, claiming against her husband’s creditors, to show that her claim is bona fide, and for a consideration growing out of her separate estate, this doctrine is not applicable where she claims under a trust; in such case she can. only be held to proof of the trust and good faith in its creation and execution: Evans v. Kilgore, 147 Pa. 19. The fact that the husband was totally insolvent did not disqualify him from acting as trustee nor did his creditors acquire any rights thereby as against the cestui que trustent: Shryock v. Waggoner, 28 Pa. 430. It has been repeatedly held that where a husband takes title to the wife’s real estate in his own name, under circumstances raising a resulting trust in her favor, she may show her title by parol, against her husband and against his creditors : Miller v. Baker, 166 Pa. 414; Sayers v. Phillips, 5 Pa. Superior Ct. 343.

There is no evidence that DeRoy was permitted to hold himself out as sole owner of the property, that he obtained credit upon representations that he was the sole owner, or that he had ever claimed to be such owner, as in Callender v. Robinson, 96 Pa. 454. Nor does it affirmatively appear in this case that the bank was at all influenced by his possession of the goods. The jury have found, under adequate instructions, that DeRoy held the property in question as trustee of his wife and children, under a trust created in good faith for that purpose, and honestly conducted in accordance with the terms of the deed. There is no evidence that the trust was in fact ever used to defraud any person. We are therefore asked to declare that this trust is a fraud in law while the evidence and the verdict prove it was not so in fact. This we are not prepared to do. True, we have held that one in whom the legal estate has vested cannot hold a separate equitable estate to his own use, as the two estates, uniting in the same person, coalesce, the equitable merging in the legal estate: Patrick v. Bingaman, 2 Pa. Superior Ct. 113. But the deed of trust in the present case does not vest the legal and equitable estate in DeRoy; the primary object of the trust, i. e. the relief and support of his family, remains, according to the terms of the deed, as fully and effectually as when it was created. In this case, as in Holdship v. Patterson, 7 Watts, 547, the deed expressly provided that “When said, capital shall have been entirely redeemed and refunded as provided above, the proceeds and the stock remaining shall accrue to the benefit and use of the. family of said Emanual DeRoy, he being hereby, in such event, appointed the guardian and trustee of the same for their use as long as he shall live, and for the equitable and fair distribution' to his widow and children after his demise.” The deed in the present case is silent as to how the business shall be conducted after the capital has thus been refunded, but the evidence shows that thereafter it was managed under the name of “ Emanual DeRoy, Tr.” Similar unexecuted trusts and trusts under which the business has been carried on in the name of the trustees, who were defendants in the executions, have been held valid against executions for personal debts contracted prior to the trust: Ashhurst v. Given, 5 W. & S. 323; Brown v.. Williamson, 36 Pa. 338; Overman’s Appeal, 88 Pa. 276. In Rees v. Livingston, 41 Pa. 113, friends of one Scaife, agreed to contribute $4,000 to start him in business under a trust created by deed in which Livingston was named as trustee for Scaife’s family. Scaife obtained possession of the premises formerly occupied by the insolvent firm of which he had been a member, and carried on the same business in his own name. An execution by a creditor of the firm was levied on the goods in his possession and a feigned issue was thereupon formed between the trustee and this creditor. It was admitted that the business was carried on in the name of Scaife, but it was shown by parol that it was conducted under the trust, and that Scaife had no means of his own employed therein. ’Under instructions touching the creation of the trust and the actual ownership of the property, a verdict was rendered for the trustee, which was sustained by the Supreme Court. The material facts of that case and of the present one are alike except that the debt in Rees v. Livingston was incurred before the creation of the trust, and could not have been the result of a credit obtained by reason of possession of the trust property. But the controlling principle would seem to rule the present controversy. Iii this case the jury have, by their verdict, eliminated all question of fraud, and the sole basis for recovery is the legal implication of credit arising from possession. This is at most a rebuttable presumption, and the inquiry becomes one of ownership, to be determined by evidence in the ordinary way. So far as the wife’s claim is concerned she has affirmatively shown the creation of a trust in favor of herself and children by third persons with their money, wholly independent of her husband. As in Gillespie v. Miller, supra, the deed of trust was duly recorded, and the fund was employed in accordtmce with its provisions. Notice of her claim and that of her children under the trust was duly given before the sale by the sheriff, and as we have said no fraud appeared and none was alleged other than the husband’s possession. Under proper instructions the jury have found the facts in favor of .the plaintiffs aiid we are not disposed to disturb their verdict. There was no fraud in law in the transaction, and the jury have found there was none in fact: Wall v. Wall, 17 W. N. C. 218. The right of the beneficiaries of the trust to bring the action in their own names is a point not presented.

Judgment affirmed.