Donalds v. Plumb , 8 Conn. 447 ( 1831 )

Williams, J.

Sundry objections have been made, by the plaintiffs in error, to the decree of the county court; some of which go to the foundation of the plaintiffs' claim, and some to the forms of proceeding to establish it. Of the former description is the objection that there is no trust created by this will; or, at least, that there is no legal estate in Donalds.

The plaintiffs in error claim, that no estate is given to Donalds, so that he could maintain ejectment for it; and so there is no trust created.

Trusts may be created, by express words, or by words shewing such an intent. 2 Swift’s Dig. 107. And wills by which trusts are created,—and indeed all wills,—must be construed according to the intent of the devisor. No form of words is necessary; the intent is to be collected from the whole instrument. In the case of Trent & al. v. Hanning & al. 7 East 97. 99., after giving sundry legacies, the devisor appointed A. B. “trustee of inheritance for the execution thereof;" and a question arose, whether A. B. could dispose of the inheritance. Lord Ellenborough said: “The trustee must take an estate commensurate with his duties” In this case, the testator’s object clearly was, to provide for the support of his daughter, not intending that her husband or his creditors should controul it. He therefore gives his estate to his grand-children, after the death of their mother, and the use and improvement for the support of his daughter and her children; and appointed: Donalds one of the trustees, and his daughter Abigail the other, to carry the provisions of the will into effect, He here explicitly states his object, viz. that this estate, during his daughter’s life, should be appropriated for the support of her family. Now, if he had done no more, a court of chancery would never have suffered his intent to be rendered ineffectual for want of a trustee. Rather than a trust shall fail, the court will appoint a trustee, or the heir shall be a trustee. Philips v. Brydges, 3 Ves. jun. 127. But the devisor does hot stop there. He goes on and constitutes Ezra Donalds one of the trustees, and Abigail S. Kingsbury the other, to carry the provisions of his will into effect. He has made no disposition of this property, during the life of his daughter, unless to these trustees, or one of them; but he has explicitly appropriated property, and as explicitly appointed trustees to carry that appropriation into effect. I have no doubt, therefore, that a trust was created by this will.

It was further claimed, that as Abigail S. Kingsbury, for whom in part this trust was created, was also a trustee, the equitable estate was merged in the legal As a general rule, it is true, that the equitable and legal estate cannot subsist together. But to this rule there are exceptions.

First, the legal and equitable estates must be co extensive and commensurate, or there must be the same estate in law as in equiy. Philips v. Brydges, 3 Ves. jun. 126.

Again, a court of equity will always prevent a merger, to preserve any beneficial interest of the party, to promote the purposes of justice or to effect the intent of the donor. Starr v. Ellis, 6 Johns. Ch. Rep. 395, 6. Philips v. Brydges, 3 Ves. jun. 126. Forbes v. Moffatt, 18 Ves. jun. 384. James v. Morey, 2 Cowen 318. Now, the legal and equitable estates are not co-extensive and commensurate. The legal estate is in Donalds and Mrs. Kingsbury; the equitable, in her and her children. Again, the intent of the devisor would be entirely subverted, and the interest of Mrs. Kingsbury disregarded, by such a construction. With the master of the rolls, therefore, I have no difficulty in saying “that the common sense, stripped of all technical and artificial reasons, is, that the equitable estate is a mere creature of this court, and subsists in idea only as to any legal consequences that might result from the possession of it, but totally distinct from the legal estate.”—“Such equitable estates are to be held perfectly distinct and separate from the legal estate.” 3 Ves. jun. 126, 7.

It is said again, that however it may be in England, this is not a trust, because since the case of Bacon v. Taylor, Kirb. 368. there cannot be a trust estate in Connecticut. As to the case cited, it was an action at law; the trustee and cestui que trust contending for the possession of the trust property. Three judges out of five of the superior court held, that the trustee could not recover; and the two dissenting judges were Sherman and Ellsworth. Without stopping to enquire whether trusts are as beneficial as Sir William Blackstone considers them, or as necessary to meet the wants of refined society as Chancellor Kent intimates, it is enough for me to remark, that we are not now at liberty to question whether a trust estate can exist in Connecticut. Too much property is held upon conveyances in trust, and too many decisions have been made recognizing them, to permit me, at this time, to question their validity. And indeed, when I consider that their duration is limited in the same manner as all other estates, by the construction of the statute to prevent perpetuities, I do not apprehend, that any important evils will result from their admission. Should experience evince, that this opinion is incorrect, the legislature will doubtless adopt the proper remedy.

I will now consider the objections made to the proceedings on the trial.

It was objected, that the plaintiff must fail, because he had not proved his debt at law. The cases cited from Johns. Chan. Rep., I think, do not reach this case. They only prove, that a creditor, before judgment, could not have an injunction to prevent a debtor’s disposing of his property in fraud of such creditor; in other words, that he has no more a lien upon the property, before judgment, in equity than at law. The case of East-Sudbury v. Belknap & al. 1 Pick. 512. 520. only shews, that a judgment was obtained before a bill in chancery was brought, but does not decide that it was necessary. The court do indeed cite the cases from New-York with approbation, but do not go at all into this question.

But how are these cases applicable to the case before us? Trusts are the peculiar subjects of chancery jurisdiction. When property is given, as it often is, for the sole and separate use of a feme covert, and she contracts debts for her support; can that fund be resorted to, by a creditor, who has furnished her with necessaries; and if so, as it certainly may be, does any case shew, that he must first resort to a court of law? Can this be done? Against whom is he to bring suit? Against the wife? The law considers her incapable of contracting. Shall the trustee be sued? It was not his debt: he never authorized it. Shall the husband be sued, when perhaps the estate was settled upon the wife, for the very purpose of furnishing her an ample support, independent of him, and when he never authorized the contract? Is any case to be found, where a court of equity has refused to interfere until the creditor had done what he never ought to be permitted to do,—obtained a judgment against some person who was under no moral obligation to pay it? And if the creditor has no debt, that he could establish at law, there is no doubt that a court of equity will permit him to resort to this fund. In Kane v. Bloodgood, 7 Johns. Chan. Rep. 90. 116. Chancellor Kent says: Where a wife had conveyed her estate in trust for her separate use, and borrowed money on a bond, though the bond was held void at law, the master of the rolls held her separate estate liable for the payment of her debts. Norton v. Turville, 2 P. Wins. 144. And that eminent jurist, in the case referred to, says: “I take it for granted, as the assumed doctrine, in all these cases, that an action at law will not lie in the case of a mere charge upon land, where there is no personal undertaking.” 7 Johns Chan Rep. 116.

In this case, the trustee Donalds did not personally undertake; nor did William Kingsbury; nor did any one but a married woman; and the credit was given to no individual, but to the trust fund. It would seem, therefore, to be the precise case spoken of, by the Chancellor, and the claim one to be supported only in a court of chancery.

It was said, that here was no person to authorize the delivery of the goods. If that were true, it would furnish an additional argument to prove, that no one could be liable at law. But surely, Mrs Kingsbury, upon the credit of a fund given to support herself and her children, will, in a court of equity, be considered as authorized to procure, by means of it, sufficient assistance to prevent them from suffering for want of food or medical advice.

Another objection is, that the declarations of Mrs. Kingsbury were improperly admitted in evidence. That the declarations of a wife cannot be given in evidence, unless she acts by his permission or in pursuance of his authority, when he has an interest in the cause, is doubtless true. Turner & ux. v. Coe & al. 5 Conn. Rep. 93. But what interest the husband has in this cause I do not see, or how he is to be injured by the event. The object of the bill is, not to charge him or his estate, but a trust fund in which he has no interest, and over which he can exercise no controul; from a participation in which he has been sedulously excluded. He is a nominal party on the record; she, and the funds she represents, the real party; and it would be a strange perversion of principle, that the declarations of the real party should not be admitted in evidence, because another person, who has really no interest, is, by the rules of proceeding, made a nominal party. The declarations of the wife were, therefore, admissible, and very proper evidence of the facts, to prove which they were introduced.

It was claimed, that Donalds and the children ought to have been admitted as witnesses. Now, it is very certain, that the fact, that Donalds was a trustee, or that he was a defendant in the bill, was not a sufficient ground of objection to him as a witness. But the trustee and the children of Mrs. Kingsbury certainly may have an interest in the event of this suit. And upon examination of this record, it appears, that the county court, have found that very fact: of course, there is no question of law open, upon this point, for examination in this Court.

Another objection was, that the court did not find what sums were due for the assistance of each of those who required it—i. e. how much was for the use of the wife, and how much for each of the children. As this fund was for the ben efit of this daughter of the deceased and her children, during her life, as the family might need it, and not for equal distribution among them; I think, all that was incumbent on the plaintiffs to prove, or for the court to find, was, that the services were for the family, without going into the enquiry how much was for each. But however that may be, the children are not made parties to this bill; and therefore, could not be bound, by any such finding, had it been made. Of course, the enquiry would have imposed upon the court a task, which would have been tedious, and the result of which would have been of no importance. The plaintiffs had no interest in that question; and as it could not have settled the amount as between Mrs. Kingsbury and her children, if a question should ever afterwards arise between them, I see no possible benefit resulting from it.

This brings me to the consideration of another objection, viz. that these children of Mrs. Kingsbury were not made parties to the bill. That thay have an interest in this trust fund and the disposition of it, and that a court of chancery is anxious that all those who have an interest in the subject of litigation, shall be brought before it, is certainly true. But it would be a matter of regret, if a party having gone through a tedious and expensive litigation, should he obliged to commence anew, upon such an objection. Here have been two committees appointed and two reports made; and then a hearing before the court upon each of those reports; and amidst the numerous objections which have been made, this was omitted. Now,, this rule that all shall be parties who have an interest, is not inflexible. It is a rule of convenience, adopted by a court of chancery to shorten litigation, and introduced to prevent doing business by halves; but it may be dispensed with, when impracticable or very inconvenient. Wiser v. Blackly & al. 1 Johns. Chan. Rep. 437. And it has been holden too late to make the objection after the master's report comes in. 2 Madd. Chan. 142. It follows of course, therefore, that it is too late after two reports, and final judgment of the court, which had original jurisdiction of the cause, to permit a defendant to avail himself of such an objection. To allow it would be to make a practice introduced to restrain litigation, the mere instrument of its extension.

The last objection to the judgment obtained by the plaintiffs in the bill, was, that there is a decree for a certain sum, to be paid, with interest, by a time fixed, and that unless it be paid, execution issue against the defendants personally. At law, the issuing of execution is perhaps no part of the judgment; but here it forms part of the decree of the court, that on their failure to pay, execution shall issue against the defendants and against their goods and estate. This is incorrect; because the execution is to issue-upon a contingency—if they do not pay. It leaves a question for the clerk to settle, when he is called upon for execution, which is not within the jurisdiction of a ministerial officer, viz. whether payment has been made. This is an authority which the court cannot delegate, and which he cannot exercise.

Besides, these individuals and their estate are made personally liable for a charge upon the trust fund. They can be liable only as executors and administrators are liable, in their representative character: and yet execution is directed to issue against them personally. This cannot be allowed.

But I should regret, that upon a point of this kind, after ascertaining that the merits of the cause were with the defendants in error, and that so many of the formal objections ought to be overruled, the cause should be opened upon a point like this. Perfect justice will be done to the parties, if the judgment should be reversed only so far as it is found erroneous; and the court below should be directed to conform their judgment to that opinion. Such is the practice in the supreme court of the United States; and such was the practice adopted by this Court, in Judson v. Blanchard, 3 Conn. Rep. 587. I would, therefore, advise the superior court, that as regards that part of the judgment relative to the issuing of execution only, there is error in the proceedings; and that the cause be remanded to the county court, for that court to conform their judgment to this opinion.

The other Judges were of the same opinion, except Peters, J. who was absent.

Judgment reversed in part, And cause remanded.