Windolph v. Girard Trust Co.

Opinion by

Mr. Justice Mestbezat,

This is a bill in equity filed by a surviving husband to have declared null and void as to him a voluntary deed of trust of personal property made by his wife, and for a decree that the property embraced in the deed continued to be her property and at her death formed part of the assets of her estate. The defendants in the bill are a substituted trustee under the deed, the administrator of the original trustee, and the persons named as beneficiaries in the deed. The case was heard on bill, answers, replication and proof by a referee who recommended the dismissal of the bill. Exceptions were filed by the plain: tiff to the referee’s report which were overruled by the court,.and a final decree entered dismissing the bill. The plaintiff has taken this appeal.

The deed of trust is dated July 16,1909, and names as trustee the mother of the settlor, with a provision for the substitution of the Girard Trust Company, in case of her death, unless the settlor should appoint another successor. It conveys a part of the settlor’s separate personal estate to the trustee in trust to collect the income and pay it to the settlor for life, and after her death to pay an annuity to her husband so long as he remains unmarried, an annuity to a niece, the balance of the income to the trustee herself, and after her death the balance of the income equally to two brothers of the settlor, on their death to their issue and a part to charity, and if no minor issue of the brothers shall survive them, then the entire estate to charity.

The deed gives the trustee power to change investments, but not to invest in other than legal securities except during the life of the settlor without her consent in writing, and relieves the trustee of liability from loss on investments thus made. The trustee’s compensation is fixed at three per cent. The settlor reserved the right at any time during her life, in her discretion, to rescind, revoke or annul the instrument and the trust in whole or in part, and to change or amend its terms and provisions, which action should be evidenced by an instrument in writing.

The bill avers that the deed was executed and delivered, not in good faith, but with the intent, purpose and object of defrauding the husband, in case he should survive his wife, of his marital rights in the personal property conveyed, that it was testamentary in character and did not constitute a valid gift; that, therefore, the personal property included in the deed formed part of the estate of the wife at the time of her death and should be turned over to her personal representative; that after the execution and delivery of the deed the wife acted as the sole and absolute owner of the property and exercised complete dominion over it; and the trustee, who was the wife’s mother, and the brothers and niece of the wife all participated with the wife in a scheme whereby the husband would be defrauded of his marital rights, and the deed was executed by the wife without his knowledge, consent or approval, his first knowledge thereof being obtained after her death.

The two brothers and the niece deny, in their answers and their testimony, the averments as to the alleged collusion in a fraudulent, scheme. No evidence of it was produced at the trial and hence it is eliminated from the case. All the defendants deny the averment that after delivery of the deed the settlor exercised absolute dominion over the property, and aver on the contrary that immediately upon the execution and delivery of the deed she parted with the legal title and the physical possession of the entire corpus of the trust fund and thereafter exercised no dominion or control whatever over the trust estate other than as specifically provided in the deed itself.

From the report of the learned referee it appears that the plaintiff and Annie Windolph, the settlor in the trust deed, were married in 1903, and resided together continuously and amicably until her death on September 28, 1911. Elizabeth Gravell, the mother of the wife, and the trustee named in the deed, was seventy-eight years old at the date of the deed and died September 3,1911. She is described by one of the witnesses as “a very shrewd, able and capable business woman.” She duly accepted the trust. The referee found that the securities and other personal property enumerated in the schedule were part of the separate estate of Annie Windolph, and at the time of the execution of the deed and as part and parcel of the transaction were absolutely and in good faith transferred and delivered by her to the trustee for the uses and purposes declared in the trust deed; that the deed and the transfer and delivery of the securities under it to the trustee were not made by the settlor in contemplation of death nor was it intended by her to take effect after her death, and that it was intended by her to take effect and become absolute on the instant of delivery. He further found: “There was no evidence before the referee that would justify a finding that the deed of trust in this case was gotten up as a mere subterfuge to permit Annie Windolph in her lifetime to possess and control her estate and at the same time to be free of the post mortem claims of her husband. She fully intended to and actually did assign and deliver to the trustee the property in question for the purposes set forth in the deed and under the advice of counsel she endeavored to effectuate her intention by fully complying with the requirements of law.” In conclusion the referee held that the deed of trust is valid and that the trustee holds title to the securities and other property embraced within the trust for the purpose of the trust and not subject to any claim of the plaintiff as the surviving husband of Annie Windolph. The findings of the referee were approved by the learned court below.

The plaintiff, who is the appellant, contends: (a) that the deed of trust is void as to him because it was in fraud of his marital rights; (b) that it is testamentary; and (c) that the evidence established that the instrument operated as a mere nominal transfer of the personal property embraced therein and did not constitute a perfected gift inter vivos valid and binding upon him.

We have examined with care the testimony in the case and are not convinced that the learned referee is in error as to his findings of facts. The principal testimony as to the purpose of the settlor in declaring the trust is that of the two attorneys whom she consulted in regard to the matter. They both testify at length as to what occurred at the several interviews between them and their client and, if believed, there can be no reasonable doubt that the deed was executed by her, not in contemplation of death nor intended to take effect after her death, but to take effect immediately on its execution and for the uses and purposes named in it. The deed was delivered and transfer of the possession of the entire trust estate was made to the trustee. She, or her agents, made the investments and collected the income with the exception of three interest payments on a mortgage made by check to Mrs. Windolph. The referee distinctly finds that there was no undue or dominating influence exercised by Mrs. Windolph or anyone else over the trustee who consulted her counsel and agents as well as her daughter in relation to the investments.

We do not agree with the appellant that the deed was a fraud upon his marital rights. It is the settled law in this State, as was the common law, that during his life a man may dispose of his personal estate by voluntary gift or otherwise as he pleases, and it is not a fraud upon the rights of his widow or children: Ellmaker v. Ellmaker, 4 Watts 89; Pringle v. Pringle, 59 Pa. 281; Dickerson’s App., 115 Pa. 198. This power arises from the fact that he is the absolute owner and hence may make a gift, declare a trust, or otherwise dispose of his personal property at his pleasure. During his life his wife and children have no vested interest in his personal estate, and hence they cannot complain of any disposition he sees fit to make of it. Their right to his property attaches only at his death. “It is scarcely necessary to add,” says Sterrett, J., in Dickerson’s Appeal, supra, “that such gifts, made in good faith as these were, cannot be impeached on the ground that they are a fraud upon the rights of the widow. Nothing is better settled than the power of a husband to dispose of his personal property in good faith, by gift or otherwise, during coverture, free from all post mortem claims thereon by his widow.” The indispensable foundation for any limitation on his control is a fraudulent intent to defeat his wife’s statutory rights as widow: Young’s Est., 202 Pa. 431. If the gift is absolute and accompanied by a transfer of pos*session with, intent to divest the donor of his ownership, although the obvious effect is to defeat the wife’s or children’s succession to the property at the donor’s death, it is not fraudulent and therefore invalid. “In our law,” says Shaeswood, J., in Pringle v. Pringle, supra, “no such gift otherwise valid can be impeached as a fraud on a man’s wife or children. They have no legal right to any part of his goods, and therefore no fraud can be predicated of any act of the husband or parent to deprive them of the succession ” In Lines v. Lines, 142 Pa. 149, we held that the “good faith” required of the donor or settlor in making a valid disposition of his property during life does not refer to the purpose to affect his wife but to the intent to divest himself of the ownership of the property. It is, therefore, apparent, that the fraudulent intent which will defeat a gift inter vivos cannot be predicated of the husband’s intent to deprive the wife of her distributive share in his estate as widow.

We think there can be no doubt that, under the present legislation in this State, a wife has the same power of disposal of her personal estate during coverture that her husband has of his personal property, and that she can create a valid trust of her separate personal estate without the joinder or consent of her husband. Of course, at common law this could not be. done as her estate, on the marriage, went to her husband. Our legislation, however, has changed her status as to her separate property and she now has the same right and power as an unmarried person to acquire, own, control, sell or otherwise dispose of her property, and may exercise the right and power in the same manner and to the same extent as an unmarried person. The only exceptions are that she may not become an accommodation endorser, maker, guarantor or surety for another, or mortgage or convey her real estate without the joinder of her husband. With these exceptions, a married woman occupies the same relation to her property as an unmarried person or, as her husband to his property. In other words, saving the disabilities specified in the statute, her control over, and power of disposal of, her separate estate are the same as if she were a- feme sole. She may, therefore, dispose of her personal estate during coverture as she pleases. Her husband has no vested interest in her personal property during her lifetime, if done in good faith and with the intention to divest herself of the ownership, she may sell her personal property, give it away, or make any other disposition of it she desires during her life and he cannot complain, for the all-sufficient reason that he has no interest in the property. She is the owner and has absolute control over it, and hence in disposing of it during life she infringes no property or other right of her husband. He does not sustain the relation of creditor to his wife. If she does not die vested of it, he can never acquire any interest in the property. It is manifest, therefore, that having no right or interest in or to the property as husband, there are no marital rights of which he can be defrauded by his wife’s disposal of the property during life by gift or otherwise. To hold that a wife cannot declare a trust or make a valid gift inter vivos of her personal property would in effect, be repealing the statute which frees her from the common law restrictions and limitations imposed upon her and declares her ownership to be that of a feme sole. In Saake v. Dorner, 167 Pa. 301, we held that the Married Person’s Property . Act of June 3, 1887, P. L. 332, was ample to enable a married woman to create a trust of her separate estate. That act was repealed by the Act of June 8, 1893, P. L. 344, the present law on the subject, which extends and enlarges a married woman’s control over her separate estate and confers upon her the same right and power as an unmarried person to acquire, control and dispose of her property and to make any contract in the exercise or enjoyment of such right and power, requiring however the joinder of the husband in mortgaging or conveying her real estate and prohibiting her from becoming an accommodation endorser, maker, guarantor or surety for another.

The wife’s motive for declaring the trust in the present case was not to defraud her husband, nor did she resort to the deed for the purpose of defeating his marital rights. She did desire to make a legal disposition of the part of her separate personal estate embraced in the deed, and hence she consulted her counsel with that purpose in view. She was advised that she could dispose of it by a proper declaration of trust, and the deed in question was made in pursuance of that advice. It was duly executed and delivered by her to the trustee, and the property embraced in it was transferred to and taken possession of by the trustee. This, as found by the learned referee, was done in good faith and for the purposes set forth in the conveyance.

We do not regard as material whether the plaintiff acquired his knowledge of the declaration of the trust before or after the death of his wife. She was the owner of the property, had the absolute control and power of disposal over it, and hence she was not required to consult or notify her husband of her intention to dispose of it. If she had the power of disposal by deed of trust, notice to her husband of her intention to exercise it would1 have served no purpose so far as he was concerned. It was equally unimportant that he should have notice if she could not dispose of the property without his consent. In either case his rights were not affected by his ignorance of the trust during her lifetime.

The present case is not a secret voluntary conveyance of her property by a party in contemplation of marriage without the consent of her intended husband, and hence the numerous authorities cited by counsel holding that such disposition of her property is void have no application here. That was declared to be a fraud upon the marital rights of the other party and, of course, avoided the transfer of the property as to him. The reason of the rule forbidding such antenuptial transfers is well stated by Lowrie, C. J., in Duncan’s Appeal, 43 Pa. 67, 69, where it is said: “Common candour forbids that so important a change in his intended wife’s circumstances, and in her power over her estate, should be made without his consent, and equity sternly condemns it as a fraud upon his just expectations. This principle of equity has stood the test of experience too long to be open to dispute now.......The plaintiff had a right to suppose that he was marrying her with all her legal power over her estate, whereas by this arrangement it was secretly slipped into the hands of trustees, and out of her control, just before the marriage was consummated. This is not just or equitable treatment of the husband. A fraud no greater than this would avoid any other contract than that of marriage; but as this cannot be avoided, equity avoids the contracts that are in fraud of it.” The distinction between a voluntary disposition of property in contemplation of marriage, and a gift or declaration of trust of personal estate by a husband or wife during coverture is recognized in the decisions. In the recent case of Hall v. Hall, 109 Va. 117, where it is held that a voluntary deed by a man of his personal estate cannot be set aside by his wife as a fraud upon her rights, the distinction is adverted to, Mr. Justice Whittle saying: “The fact that the precise question involved in this case has been twice decided by this court, renders unnecessary a discussion of the power of the husband to disappoint his widow by divesting himself of title to his personal estate in his lifetime. Of course, the doctrine is not to be confounded with the principles applicable to the dispositions of property made in contemplation of marriage.”

The plaintiff further contends that the instrument of July 16,1909, is not a deed of trust, but is testamentary in its nature. If this be true, it would not, of course, deprive the husband of his interest in the property embraced in the deed, as the wife would die possessed of the property and hence his statutory interest therein would be unquestionable. It is contended that the instrument bears upon its face evidence that it was not intended to take effect in the lifetime of Annie Windolph. These evidences of its testamentary character, it is claimed, are that the settlor reserved to herself the entire income from the trust property during her life, that the estates of the remaining cestui que trustent were not to take effect in possession or enjoyment until after her death, and that there was a power of revocation reserved in the instrument. We think, however, these reasons are not sufficient to avoid the deed as a valid declaration of trust and to show that it was intended as a disposition of property to take effect after death. The referee found, on sufficient evidence, that the deed was delivered to the trustee at the time of its execution together with a transfer of the possession of the property, that the settlor parted with her title to the property at that time and vested it in the trustee for the purposes specified in the deed, and that she at no time intended that the deed of trust should be construed as a will or that it was executed as ,a subterfuge to enable her to obtain the control of her property and at the same time make it effective to defeat her husband’s marital rights in her estate. The intention of the settlor at the delivery of the deed was to part with the legal title and the reservation to herself of a life interest and the enjoyment of the estate until her death did not invalidate the trust as to the beneficiaries named in the deed: Lines v. Lines, 142 Pa. 149; Nolan v. Nolan, 218 Pa. 135; Wilson v. Anderson, 186 Pa. 531; Robertson v. Robertson, 147 Ala. 311. In the Wilson- Case we said, inter alia, (p. 539): “The general rule is that if the intention of the grantor at the time he delivered the deed was to part with the legal title, the trust will be enforced in favor of the beneficiaries, even though their enjoyment of the estate is postponed until the death of their benefactor.” It is equally well settled that a reserved right of revocation is not inconsistent with the creation of a valid trust: Dickerson’s App., 115 Pa. 198; Smith’s Est., 144 Pa. 428; Stone v. Hackett, 78 Mass. 227. In the latter- case it is said: “A power of revocation is perfectly consistent with the creation of a valid trust.......If this right is never exercised according to the terms in which it is reserved, as in the case at bar, until after the death of the donor, it can have no effect on the validity of the trusts or the right of the trustee to hold the property.” Nor do we think the evidence, as claimed by plaintiff, discloses that the instrument was executed with testamentary intent. The settlor was distinctly told by her counsel prior to the execution of the deed that in order to make it effective as a deed of trust, she would have to give up her property and lose all control over it. She clearly understood that to make the deed effective she must deliver it and the property to the trustee. There is nothing subsequent to the execution and delivery of the deed that indicates that this was not done. The evidence which it is claimed shows that the settlor continued to exercise her right as owner over the property was carefully examined by the learned referee and he found that it did not sustain the plaintiff’s contention. Our examination of the evidence has not convinced us that he was wrong. We think that the essential requisites of a valid trust are disclosed in this case, and that the instrument of July 16, 1909, was not a will.

What has been said disposes of the plaintiff’s contention that the evidence established that the deed operated as a mere nominal transfer of the property and did not constitute a valid and perfected gift inter vivos. In determining this question the learned referee considered not only the deed but all the other evidence bearing upon the subject and his conclusion was adverse to the plaintiff’s contention. The findings of the referee were approved by the court below which said: “We have carefully gone over the testimony and have noted the exceptions of plaintiff to the same. There appears to be no substantial error in the referee’s findings of fact.” These findings are conclusive upon us in the absence of manifest error of which we are not convinced.

The decree is affirmed.