Dresser v. Dresser , 46 Me. 48 ( 1858 )

The opinion of the Court was delivered by

Davis, J.

Asa Dresser, the father of the complainants, a few weeks before his death, delivered to the respondents a writing of which the following is a copy: —

“$10,000. “Saco, January 21, 1854.

“ Having confidence'in my brother John and his son J. W. Dresser, that they will take charge of a certain amount of property for safe keeping, consisting of city bonds or scrips, for the benefit of my children, when my youngest child is thirty years old, the amount may, with all the interest, be paid over to them in equal amounts. Said sum is now ten thousand. My brother John and his son J. W. Dresser, shall be the trustees for the present. Daniel Dresser, of Saco, to be added when he thinks it consistent with his other responsibilities. “Asa Dresser.”

At the time this writing was delivered to the respondents, Asa Dresser said to them, that he wished them to do with the property as they would with their own; and he thereupon delivered it to them. They were enjoined from divulging the fact to his children, until the time when the whole amount should be paid over to them according to his written declaration aforesaid.

The complainants, having discovered the transaction, though the time for the distribution has not yet arrived, now seek to recover the property, on the ground that such disposition of it was illegal and invalid. And it is argued that it was not a gift inter vivos, to the trustees; nor valid as a gift causa mortis, because made in trust.

This last proposition has been ably discussed; and the counsel for the complainants has commented at some length upon the case of Blount v. Barrow, 4 Brown, C. C., 75, and subsequent cases in which it has been cited. The argument is, that in none of these cases has a gift causa mortis, in trust, been held to be valid. But if this is so, it does not sustain the proposition of the complainants. It simply results that the question is still unsettled. For we do not know of any case where such a gift has been held to be invalid.

The law has never been so strict in regard to the disposition of personal property as of real estate, in expectation of death. Infants could make testaments of chattels, though not of lands. 2 Blacks. Com., 497. And, at common law, it was not necessary for such testaments to be in writing. 4 Kent’s Com. 516. Gifts causa mortis are a sort of off-shoot of this principle, surviving the statute prohibition of verbal wills. And though once looked upon with disfavor, and still carefully scrutinized by the Courts, when they are found to have been made in good faith, they should be upheld.

Gifts inter vivos, and gifts causa mortis, differ in nothing, except that the latter are made in expectation of death, become effectual only upon the death of the donor, and may be revoked. Otherwise the same principles apply to each. And as the former may be made in trust, we can see no reason why the latter may not. The learned counsel has not shown us where such a gift infringes on any decided case, or on any established principle of law. Nor is it objectionable from considerations of public policy. The danger of fraud and deception is certainly less than in the case of a gift to the donee in his own right. If the gift is in trust, the donee has little, if any, personal interest in sustaining it. And when such a gift is proved to have been made in good faith, and the trust is definite, so as to be enforced in a Court of Equity, we are unable to perceive why it may not be upheld.

In the case of Dole v. Lincoln, 31 Maine, 422, the gift was held invalid, not on the ground that it was in trust, but because, if it was a gift, which was doubtful from the testimony, it was for a trust so indefinite and uncertain that it could not be executed.

But we do not think it is necessary to a determination of this case that we should come to the conclusion that a gift causa mortis, in trust, may be valid. For, if the transfer in this case was a gift, it was a gift inter vivos. The donor was sick, probably with no hope of recovery. This clearly was the reason why he made this disposition of a part of his property, after having made his will a week previous. Assuming it to have been a gift, it was made in anticipation of death, — but it was not conditioned upon that event. There is no intimation, either in the writing, or in the oral testimony, in regard to the transfer, of any expectation or right on his part to reclaim the property, under any contingency. Nor is such a gift, to children, accompanied by delivery, revocable. Smith v. Smith, 7 C. & P. 401.

And, though no words of gift are in the writing, it is to be construed according to the intention of the donor. And, giving to the language its natural meaning, under all the surrounding circumstances of the case, we cannot doubt that it was a gift, in trust, for the benefit of his children. The res gestee corroborate this construction. The donees are called “trustees.” The property was delivered to them, so that they had entire dominion over it. They were instructed to do with it as they would with their own, until the time of final distribution. The trustees, and the cestuis que trust, are all named in the writing, which is signed by the donor; the objects are definite; and the time and manner of the final disposition of the fund is fixed with certainty. We therefore think the trust should be upheld according to its terms. It violates no rule of law or of public policy; and the final distribution will be made at the same time, and on the same principles, as it would be by the administrator, under the will, if we should grant the prayer of the complainants.

But we think that the safety of the complainants requires that the trustees should furnish a bond to the cestuis que trust, for the’ performance of the trust, as they offer to do. We also think that it was the duty of the trustees, using the property as their own, to invest the accruing interest from year to year; and, so far as they have neglected to do it, after a reasonable time, they should be held personally responsible. A decree may therefore be made, that the funds may remain in the hands of the respondents until further order of Court, upon their filing a bond as trustees, with sureties to be approved by some one of the Justices of the Court, with the condition that they shall faithfully execute the trust, invest tlie interest annually as it shall be paid, and account for the use of any that they have neglected to invest, and finally pay over the whole, principal and interest, according to the terms of the trust, subject to such compensation as may be allowed them by this Court for their services. And, under the peculiar circumstances of this case, we order that neither party shall recover costs.

Tenney, C. J., and Rice, Appleton, and Goodenow, J. J., concurred.