Conner v. Hull , 36 Miss. 424 ( 1858 )

HARRIS, J.,

delivered the opinion of the court.

This bill is filed by the complainant, Ann L. Conner, as the heir at law of Burwell Trawick, to recover of tbe defendants the possession of the negro man Ned, in controversy, under regular admi- ■ nistration and distribution to her as such heir.

The defendants claim title to said slave Ned, under an instrument in writing, making a declaration of trust in favor of defendant, Isabella Porter (now Isabella Hull), as follows:—

“ For divers good causes and considerations me hereunto moving, I have this day given and conveyed to my granddaughter, Isabella Porter, my boy Ned; also, one feather bed, and all the furniture thereunto belonging; saving to myself the use and benefits arising from all of said property during my natural life. And I hereby appoint E. M. Wells, Esq., my trustee and guardian, to manage and control the abovementioned property, until the abovementioned Isabella becomes of age, or marries; giving unto said negro, at the end of each year, the sum of five dollars, from the proceeds of his labor. April 25th, 1851.

(Signed) “ B. • Thawtce.

“ I have this day witnessed the delivery of the negroes mentioned above. April 25th, 1851.

“William Holland,

“JohN T.' Holland.”

The negro Ned was in the possession of said Trawick at his death, and upon distribution went into the possession of complainants, who, on demand, delivered him to the said E. M. Wells, the trustee under the said instrument or declaration of trust, who delivered him to the cestui que trust and remainderman, the said Isabella Hull.

The only point we will consider in this case is, whether the evidence shows a delivery of the negro man Ned, in the lifetime of the said Trawick, so as to vest the title in the said Isabella, or in the said trustee, Wells; or rather, so as to divest the legal title to said boy Ned, out of the said Trawick, in favor of the beneficiary of his bounty.

That there was a delivery to the said E. M. Wells, as trustee, is proven by two witnesses, who were present, and witnessed both the instrument creating the trust and the delivery of the negro man Ned at the same time. By this delivery, the title passed to the trustee, tbe trust became executed; and, although the trustee may have immediately parted -with all dominion or control over the property, neither his negligence nor bad faith, nor any act or omission of the trustee, can ever affect or impair the interest of the cestui que trust. The very instant after delivery, it was beyond the power of the trustee or donor, or both, by any act or agreement of theirs, to defeat the trust; for it is a principle of equity, that a trust shall never fail for want of a trustee to execute it: the court will consider itself a trustee, and appoint a person to execute the trust.

By the terms of the instrument declaring the trust, it was to be “ managed and controlled” by the trustee, until the defendant, Isabella, became of age or married, reserving to the donor the “ use and benefits of the property during his life.”

Here was a change of possession, and a use declared, and an agreement by the trustee, in effect, to stand seised to the uses thus created: to “ manage and control” the property thus formally delivered to his possession, so that the donor should have the use and benefits thereof, under his (the trustee’s) management and control, during the life of the donor, and after his death, until the said Isabella became of age or married. The power of the trustee over the estate vested in him, exists only for the benefit of the cestui que trust; and hence no act of his, whether of commission or omission, could prejudice, defeat, or in any manner affect the validity of the title thus vested in' him. If parting -with the possession and dominion of the property, in other' cases, and between other parties, where no such fiduciary relation existed, would operate in law to defeat the gift, as it is insisted in argument, then such act in the trustee was illegal and void, and his bad faith, or negligence, or ignorance of duty, are alone chargeable upon him, and could, under no circumstances, revest the title in the donor, who was not only cognizant of, but a party to such wrongful and illegal act.

Considering the case solely with reference to the fact of actual delivery of the property to the trustee, we are of opinion that there was such delivery, and that the decree should, therefore, be affirmed.

Decree affirmed.