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hesitated to compel a reconveyance. Under these circumstances such reconveyance will be presumed in equity and at law as well. In Lade v. Holford et al., Buller's Nisi Prius, 110, Lord Mansfield said that when trustees ought to convey to the beneficial owner he would leave it to the jury to presume, where such presumption might reasonably be made, that they had conveyed accordingly “in order to prevent a just title from being defeated by a matter of form.” This case was approved, and the doctrine applied by Lord Kenyon in England v. Slade, 4 Term, 682. Three things must concur to warrant the presumption: (1) It must have been the duty of the trustee to convey. (2) There must be sufficient reason for the presumption. (3) The object of the presumption must be the support of a just title. Hill on Trustees, by Bispnam, 394. The case must be clearly such that a court of equity, if called upon, would decree a reconveyance. The present case is within these categories. The trustees being bound to reconvey, it is to be presumed they discharged that duty rather than that they violated it by continuing to hold on to the title. The trust was executory. When its execution became impossible, common honesty, their duty and the law required that they should at once give back to the donor the legal title which he had given to them. It is not necessary that the presumption should rest upon a basis of proof or conviction that the conveyance had in fact been executed. It is made because right and justice require it. It never arises where the actual conveyance would involve a breach of duty by the trustee or wrong to others. Like the doctrine of relation it is applied only to promote the ends of justice, never to defeat them. Hillary v. Waller, 12 Ves., 252; Best on Presumptions, 112. The rule is firmly established in the English law. Langley v. Sneyd, 1 Sim. & Stu., 55; Hillary v. Waller, supra; Goodson v. Ellison, 3 Russ., 588; Doe v. Sy bourn, 7 Term, 3; Angier v. Stanard, 3 Mylne & K., 571; Carteret v. Paschal, 3 P. Will., 198. It is equally well settled ir. American jurisprudence. Doe v. Campbell, 10 Johns., 475; Jackson v. Moore, 13 id., 513; Moore v. Jackson, 4 Wend., 62; Aiken v. Smith, 1 Sneed, 304; Washburn on Real Property, 415, and note. Properly guarded in its application, the principle is a salutary one. vents circuity of action, with its delays and expense, quiets possessions, and gives repose and security to titles. Sir William Grant said: "Otherwise titles must forever remain imperfect, and in many respects unavailable, when, from length of time, it has become impossible to discover in whom the legal estate, if outstanding, is actually vested.

What ought to have been done should be presumed to have been done. When the purpose is answered for which the legal estate is conveyed, it ought to be reconveyed.” Hillary r. Waller, 12 Ves., supra. If it had been one of the facts found by the court below that the title was still in the trustees, the case would have presented a different aspect. Goodtitle v. Jones, 7 Term, 43; Roe v. Read, 8 id., 122; Matthews v. Wood, 10 Gill & J., 456. It is stated only as a conclusion of law, arising upon the facts found. Such findings of facts are regarded in this court in the light of special verdicts. “If a special verdict, on a mixed question of fact and law, find facts from which the court can draw clear conclusions, it is no objection to the verdict that the jury themselves have not drawn such conclusions, and stated them as facts in the case.” Monkhouse v. Hay, 8 Price, 256. The presumption of the reconveyance arises here, with the same effect upon the specific findings, as if it had been expressly set forth as one of the facts found.

The conclusion of law that the title was still in the trustees was, therefore,

It prea manifest error. On the contrary, it should have been presumed that Martin and Edwards had reconveyed, and that the title had thus become re-invested in the plaintiff, and the court should have adjudged accordingly. Judgment rerersed and the case remanded with directions to proceed in conformity to this opinion.

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$ 101. Interpretation - Construction.- Where land is conveyed "in trust,” but no beneficiary is described, parol evidence is admissible to show the cestui que trust intended. Railroad Co. v. Durant,* 5 Otto, 576.

S 102. Land was conveyed to persons in trust to sell and convey in fee-simple absolute, and to pay the proceeds to the United States, and after a certain sum was paid to reconvey the balance to the grantor. Held, that the conveyance was not in any sense a purchase by the United States, but vested in the trustees a legal estate commensurate with that which they were to convey. Neilson v. Lagow,* 12 How., 98.

$ 103. One of the trusts of an assignment was to pay “$8,490 on custom-house bonds, on which M. is surety,” M. being one of the assignees; he was surety on bonds to a less amount, but the debtor in fact owed bonds to the custom-house to the amount of $8,257. It was held that no bonds were included in the trust but those on which M. was surety. United States v. Langton, 5 Mason, 280.

S 104. Property was conveyed in trust to be divided among "such of” M.'s “children ” as M. should by will appoint, and “for want of such appointment then in trust for the use of such of said children as shall be living at the death of said M., and the issue of such of said children as may then be dead.” Held, that M. might by will appoint a share of the property to grandchildren who were the children of a deceased child of M. Ingraham v. Mead, * 3 Wall. Jr., 32.

$ 105. A person devised all his property to his wife except his outstanding debts, which he directed her to collect and pay to three persons whom he should afterwards name; his wife was also named as executrix. No persons were ever named. The wife collected the debts, and it was held that she did not take as trustee by implication, but held the property simply as executrix, and that it belonged to the testator's heirs. Wisner v. Ogden,* 4 Wash., 631.

$ 106. H., being in prison for debt, conveyed his farm to S. for a small consideration, and then took the poor debtors' oath and was discharged. A., however, continued to occupy the farm for twenty years. S. afterwards mortgaged the premises to B., and H. leased the premises of B., paying him interest as rent. Suit against H. to foreclose the mortgage was brought, when H. procured D. and G. to redeem the mortgage, giving them a quitclaim deed of the land. Held, that in view of other circumstances giving color to the transaction there was a trust resulting to H. in the transaction with S., but that it was void, as being in fraud of H.'s creditors, and that although this trust was void, yet the transaction with B. and D. and G. afterwards created a valid trust in favor of H. Hunter v. Town of Marlboro,* 2 Woodb. & M., 168.

$ 107. J., who was unable to complete a purchase of land for want of funds, released all his title to E., who completed the purchase and advanced certain sums of money for the benefit of J., agreeing to convey the lands to J. when he should be repaid his advances and interest. Held, that this created a trust in favor of J. which was not within the statute of frauds, especially as E. at the time of the transfer agreed to execute a declaration of trust and leave it among his private papers for the benefit of J. in case of accident. Jenkins v. Eldridge,* 3 Story, 181.

$ 108. A will executed in 1777, which devised certain lands in Maine to trustees and their heirs to the use of R. (the testator's son) for life, remainder for his life in case of forfeiture to the trustees to preserve the contingent remainders; remainder to the sons of R., if any, as tenants in common in tail, with cross-remainders; remainder to R.'s daughter, E., for life; remainder to trustees to preserve contingent remainders during her life; remainder to the sons of E. in tail, did not vest the legal title in fee-simple in the trustees. The life estate of R., and the contingent remainders limited thereon, were legal estates. Webster v. Cooper, 14 How., 488.

$ 109. A bank being forbidden by law to hold real estate for the purpose of securing a debt due to it, and which was a lien on certain land, procured F. to purchase the land and take the title in his name for its benefit. The bank furnished the money, for which he gave it his note, and it agreed to save him harmless. F. conveyed the land to a trustee of the bank, nominally to secure the payment of his note, and directed the surplus, if any, to be paid to the trustees of the bank. Held, that F. held the title as a naked trustee without interest, and that no interest in the land descended to his heirs. Zantingers v. Gunton, * 19 Wall., 32.

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$ 110. An acknowledgment in writing of the receipt of the sum of $119,000 in bonds of the C. Railroad Company,” and “$50,405 of coupons or interest warrants, etc., amounting in the aggregate to the sum of $169,405, which said sum I promise to expend in the purchase of lands from A., B. and C., trustees of the said railroad company, at or near the average price of $5 per acre,” establishes a trust to buy land with the bonds and coupons at $5 per acre, and not with the proceeds of them; and a sale of the bonds at a nominal price is a fraudulent breach of trust, and a purchaser from the trustee under such circumstances, with notice of the purpose for which the bonds were held, cannot hold them as against the cestui que trust. Kitchen v. Bedford, 13 Wall., 413.

$ 111. Where a testatrix empowered a trustee to sell lands for purposes of re-investment, “ when the major part of my children shall recommend and advise the same," it was held that the consent of the major part of those liviog at the time when the sale was made was sufficient. Sohier v. Williams, 1 Curt., 479.

$ 112. Where, under a devise to an ecclesiastical society, the possession, management and control of the property devised is given.exclusively to trustees, with power to perpetuate their authority indefinitely, the society as beneficiary only receiving the rents and profits, the legal estate in the property devised vests in the trustees and not in the society. Stanley v. Colt, 5 Wall., 119.

$ 113. W. K. in his will made the following devise: “In case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to W. K. (the appellant), son of my brother, J. K., on condition of his marrying a daughter of W. T., and my niece, R., his wife, in trust for the eldest son or issue of said marriage, and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said W. and R. T., that will marry a child of my brother J. K., or of sister E. M., wife of J. M., and their issue." Upon the construction of the terms of this clause, it was decided by the supreme court in 3 Pet., 346, that W. K., the devisee, took the estate upon a condition subsequent, and that it vested in him (so far as not otherwise expressly disposed of by the will) immediately upon the death of the testator. W. T. having died without ever having had any daughter born of his wife, R., the coudition became impossible. All the children of W. T. and R., his wife, and of J. K., and E. M., are married to other persons; and there has been no marriage between any of them, by which the devise over, upon the default of marriage of W. K. (the devisee) with a daughter of W. T., would take effect. The case was again brought before the court on an appeal by W. K., in whom it had been decided the estate devised was vested in trust; and the court held that W. K. did not take a beneficial estate in fee in the p emises, but a resulting trust for the heirs at law of the testator. There is no doubt that the words “in trust,” in a will, may be construed to create a use if the intention of the testator, or the nature of the devise, requires it. But the ordinary sense of the term is descriptive of a fiduciary estate or technical trust; and this sense ought to be retained until the other sense is clearly established to be that intended by the testator. In the present case there are strong reasons for construing the words to be a technical trust. The devise looked to the issue of a person not then in being, and of course, if such issue should come in esse, a long minority must follow. During this period it was an object with the testator to uphold the estate in the father for the benefit of his issue; and this could be better accomplished by him as a trustee than as a guardian. If the estate to the issue were a use, it would vest the legal estate in them as soon as they came in esse, and if the first-born children should be daughters, it would vest in them, subject to being divested by the subsequent birth of a son. A trust estate would far better provide for first contingencies than a legal estate. There is then no Te ison for deflecting the words from their ordinary meaning. King v. Mitchell, 8 Pet., 326.

supplemental instruments.- Where a valid trust is created by a deed and it is explained by a supplemental instrument that names the beneficiaries, both instruments are to be construed together. Heermans v. Schmaltz, 7 Fed. R., 566.

§ 115. Validity of.-A clause in a will which vests property in a trustee for the use and benefit of each of testator's children during his or her life, to descend upon the death of any of such children to his or her heirs, without any power or right on the part of any of said children to incumber any portion of said property, or anticipate the rents thereof, said rents to be collected by the trustee and paid to the devisees in person, is valid and operative, and not opposed to public policy. Spindle v. Shreve, 9 Biss., 199; 4 Fed. R., 136; 10 Rep'r, 481.

$ 116. Whenever a trusi is created a legal estate sufficient for the execution thereof shall, if possible, be implied. Stanley 2. Colt, 5 Wall., 119.

$ 117. Gifts after marriage, by third persons, may be expressly made for the sole and separate use of a wife, and if the husband consents to her receiving them, he and his creditors are bound by the trust. In re Grant, 2 Story, 312. $ 118. A devise of a fee to trustees and their heirs, with authority to sell, is consistent

$ 114,

with an executory bequest of the fee to others after a life estate. Ward v. Arnory, 1 Curt., 419.

$ 119. A trust for the benefit of the children of the grantor's niece, W., is not, by reason of the omission of the names of the beneficiaries, invalid under a statute requiring all express trusts to be “fully expressed, and clearly defined upon the face of the instrument creating it.” Heermans v. Schmaltz, 7 Fed. R., 566.

S 120. Members of a religious society having acquired property by their common labor entered into articles of agreement among themselves by which they relinquished their individual rights in such property, both for themselves and their heirs, for a common interest in all the property of the cominunity. They gave up all claim to the results of their individual labor, and provided for the support and maintenance of each at the expense of all, and provided for the admission of new members upon the same arrangement. Held, that such articles of agreement are not a grant, but are a declaration of a trust, and being in writing are valid; and that such contract is not void as creating a perpetuity, for new members could only come in by entering into a new contract, and depends on such contract rather than on the principles of the original articles of agreement. Goesele v. Bimeler, 5 McL., 225.

$ 121. A condition in a trust deed executed by a husband for the benefit of his wife, and in view of separation, that she should enjoy the separate estate secured to her by the trust deed although sbe should subsequently become reconciled to her husband and cohabit with him, is valid. Walker v. Walker, 9. Wall., 743. $ 122.

consideration.- A covenant by the husband for the maintenance of the wife, contained in a deed of separation between them, through the medium of trustees, where the consideration is apparent, is valid, and will be enforced in equity, if it appears that the deed was not made in contemplation of a future possible separation, but in respect to one which was to occur immediately, or for the continuance of one that had already taken place. Ibid.

$ 123. In consideration of $800 advanced by wife from her separate estate, the husband conveyed certain property in trust for his wife to A., after which he assigned all his property to A. for the benefit of creditors. On bill filed by the wife against the representative of A, to enforce the trust, held, that even if the husband and wife knew that the value of the property conveyed exceeded $800, which excess ought to have gone to the creditors, it could not, therefore, be presumed that the conveyance to the trustee, absolute on its face, was intended as a mortgage. Huot v. Danforth, * 12 Law Rep. (N. S.), 74.

$ 124. Where an agreement or trust is executed, or is evidenced by a writing sealed, a consideration will usually be presumed. Tufts v. Tufts, 3 Woodb. & M., 456.

$ 125. A trust to hold property for a woman separated from her husband, she having relinquished alimony and dower in consideration of the benefits of such trust, is a valid trust, and will be upheld in equity, the indenture creating the trust not being based solely on the separation. Walker v. Beal, 3 Cliff., 155.

$ 126, under statutes of Wisconsin.- The creation of an express trust to rent and sell lands for the benefit of the grantor during his life, and of other persons after his death, in the manner indicated or to be indicated in a writing supplementary to the deed of trust and to be subsequently executed, is authorized by the fifth subdivision of section 2081 of the Revised Statutes of Wisconsin, which provides that express trusts may be created “for the beneficial interests of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it.” Heermans v. Schmaltz, 7 Fed. R., 566.

IV. Uses.


For sole use of married woman, § 127; death of husband; trust becomes passive,

$ 128.

$ 127. A trust which would otherwise, under the statute of uses and trusts, vest the legal title in fee in the cestui que trust, if made for the benefit of a married woman, for the purpose of giving her the separate use and control of lands free from the control of her husband, will be sustained. Bowen v. Chase, SS 129–132.

$ 128. Lands were conveyed in trust, either to collect the rents and profits and pay them over to the cestui que trust, a married woman, or to permit her to use, occupy and possess the premises and collect the rents and profits to her separate use, and in either case to convey as she might direct, or to her heirs in case of no direction. Held, that under the laws of New York on the death of her husband it would seem that the trust became a mere passive one. Ibid. [NOTES. — See SS 133–145.]


(4 Otto, 813–824. 1876.)


APPEAL from U. S. Circuit Court, Southern District of New York.

STATEMENT OF Facts.— The principal objects of the bill in this case, which was filed in the court below by the appellees, Nelson Chase, Eliza Jumel Pery and Paul R. G. Pery, her husband, and William I. Chase, were to establish their title to certain lands in the city of New York, known as the Stephen Jumel property, and to enjoin George W. Bowen, the appellant, from prosecuting certain actions of ejectment, one brought by him to recover the property above named, and the others to recover certain lands in Saratoga, belong. ing to the late Madame Jumel, widow of Stephen Jumel, and claimed by the appellees by way of satisfaction for certain charges against her estate, as well as by conveyance from her supposed heirs, children of a deceased sister.

Stephen Jumel was the owner of a lot at the corner of Broadway and Liberty streets, and of several tracts of land on Harlem Heights, in the upper part of New York city. In 1827 and 1828, by certain mesne conveyances, the greater portion of this property was conveyed to one Michael Werckmeister upon the following trusts, namely:

"In trust that the said party of the second part (Werckmeister) and his heirs collect and receive the rents, issues and profits of the said above-described and hereby-conveyed premises, and every part and parcel thereof, and pay over the same unto Eliza Brown Jumel (the wife of Stephen Jumel, late of the city of New York, now of Paris, in France), or, at her election, suffer or permit her to use, occupy and possess the said premises, and to have, take, collect, receive and enjoy the rents and profits thereof, to and for her own separate use and benefit, and to and for such other uses and purposes as the said Eliza Brown Jumel shall please and think fit, at her own free will and pleasure, and not subject to the control or interference of her present or any future husband, and the receipt and receipts of her, the said Eliza Brown Jumel, shall at all times be good and sufficient discharges for such payments, and for such rents and profits to him, the said party of the second part, his heirs, executors and administrators, and to the person or persons who are or shall be liable to pay the same; and upon this further trust, that the said party of the second part or his heirs lease, demise, let, convey, assure and dispose of all and singuiar the said above-described premises, with their and every of their appurtenances, to such person or persons, for such term or terms, on such rent or rents, for such price or prices, at such time or times, to such uses, intents or purposes, and in such manner and form as she, the said Eliza Brown Jumel, notwithstanding her present or any future coverture, as if she were a feme sole, shall, by any instrument in writing, executed in the presence of any two credible witnesses, order, direct, limit or appoint; and in case of an absolute sale of said premises, or of any part thereof, to pay orer the purchase money to the said Eliza Brown Jumel, or invest the same as she shall order and direct; and upon this further trust, upon the decease of the said Eliza Brown Jumel, to convey the said above-described premises, or such parts thereof as shall not have been previously conveyed by the said party of the second part, or his heirs, and with respect to which no direction or appointment shall be made by the said Eliza Brown Jumel in her life-time, to the heirs of said Eliza Brown Jumel in fee-simple; and pay over to the heirs of the said Eliza Brown

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