Hogg v. Clemmons

The opinion of the Court was delivered by

The only question in this case is: Is the following deed a trust deed? ■ ■

“Whereas, having constituted and appointed Judson Briggs trustee of his children, John Briggs and Addie Briggs, and those who may be born after them:

“Now, know all men by these presents, that I, Sarah Hogg (widow), of the State and County aforesaid, in consideration of the natural love and affection, and the further consideration of ten dollars to me in hand paid at and before the sealing of these presents by said .Judson Briggs, have granted, bargained, sold and released, unto the said Judson Briggs, Trustee as aforesaid, to and for the following trusts, uses, interest and purposes and no other. That is to say, in trust to’ the said Judson Briggs, to be managed and controlled by him during his life, and in such a manner as to him shall seem fit and proper, and at his death the said real estate hereinafter described shall descend and be equally divided among and vest in his said children free from and in no way subject to, or liable for, the debt or contracts of the said Judson.

“That is to say, all that tract and parcel of land situated in the County of Barnwell, containing one hundred acres, *478 more or less, bounded east by lads of W. W. Davis; west by lands of Eliza Dong; north by lands of Stephen Sanders; south by lands of Charles Still, tO' be used and controlled by him to and for the use and purposes, as aforesaid, and I do . hereby bind myself and my heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said Judson Briggs, Trustee, against myself and my heirs and all other persons whomsoever, lawfully claiming or to claim the same or any part thereof.

“Witness my hand and seal this 19th day of July, A. D. 1892.

her “Sarah x Hogg, mark.

“Witness:

“G. M. Shepheard.

“H. M. Meyers.”

. Det the report of the Master and the Circuit decree be re¡ported.

I. The appellants claim that the deed conveyed to Judson Briggs merely a life estate and that at his death the land reverted to the estate of Sarah Hogg and is distributable among her heirs. It is difficult to see the foundation for such a position. We know of no rule •by which the remaindermen could be divested of the remainder created by the deed.

II. Appellants claim that, as there was nothing for the Trustee to do, the Statute executed the use. If that be true, the Statute executes the use in the cestui que trust and not in the Trustee. This deed gives to Judson Briggs the right to manage and control the property.. There is no rule by which a Court can assume that a beneficial interest was intended to be given to the Trustee. There is no word in the deed that intimates such an intention. ■ The preamble recites it as a -fact that the grantor had constituted and appointed Judson Briggs trustee of his children. *479 The property, therefore, conveyed to Judson Briggs, Trustee, was conveyed to him as trustee for his children.

It is entirely clear that the deed was a trust deed, and words of inheritance are not necessary.

The decree appealed from is affirmed.

(concurring) : The appeal in this case involves the construction of a deed executed by Sarah Hogg, formerly Sarah Briggs, to her son, Judson Briggs, dated July 19, 1892.

Preliminary to a consideration of the.deed referred to, it may be helpful to understand the somewhat complicated family relations of the parties involved.

In the year 1855, Jonathan H. Briggs and Sarah Briggs (afterwards Hogg), were husband and wife, with two children, Judson and Jonathan H., Jr. The latter child died in infancy, and his interest passes out of the case. Jonathan H. Briggs, Sr., went into the Confederate army and never returned. After the war, his widow, Sarah Briggs, unlawfully cohabited with one George M. Hogg, and bore him four children; she-subsequently intermarried with him, and died October 23, 1898. Judson Briggs, her only legitimate child, by Jonathan H. Briggs, died in 1917, leaving a widow and ten children, among them the two mentioned in the deed of July 19, 1892, hereinafter considered.

The previous history of events, leading up to the deed of July 19, 1892, from Sarah ''Hogg, formerly Sarah Briggs, to Judson Briggs, her son, is as follows: On August 18, 1855, one William Cave conveyed the premises in question to Jonathan H. Briggs as trustee for the sole and separate use, behoof, and benefit of the latter’s two sons, Judson Briggs and Jonathan H. Briggs,-Jr., and such other children'as might be born to him and his wife, Sarah Briggs. They had no other children, and Jonathan H. Briggs, Jr., having died in infancy as stated, Judson Briggs *480 became the sole beneficiary. After the presumed death of his father (Jonathan H. Briggs) on July 3, 1875, Judson Briggs conveyed the premises to his mother, Sarah Briggs, and on July 19, 1892, Sarah Briggs (then Sarah Hogg), executed the deed which is now under consideration.

The premises of that deed are:

“Whereas, having constituted and appointed Judson Briggs trustee of his children, John Briggs and Addie Briggs, and those who may be born after them.”

The granting clause is :

“Have granted * * * unto the said Judson Briggs, Trustee as aforesaid, to and for the following trusts, uses, interest and purposes and no other, that is to say, in trust to the said Judson Briggs, to be managed and controlled by him during his life and in such manner as to him shall seem fit and proper, and at his death the said real estate hereinafter described shall descend and be equally divided among and vest in his said children, free from and in no way subject to, or liable for, the debts or contracts of the said Judson [description] to be used and controlled by him to and for the use and purposes as aforesaid [warranty] unto the said Judson Briggs, Trustee, * * *”

After the death of Judson Briggs in 1917, to wit, in May, 1918, five of his. children (eight having been born after the execution of the deed) brought a suit for partition, to which the other five children were made parties, and under it the premises were sold by the Master and purchased by the defendant, J. W. Walker, who complied and received the Master’s deed. Subsequently he conveyed the premises to the defendant, T. C. Clemmons, who gave him a mortgage to secure the purchase price.

The present suit was instituted on October 1, 1920, by the plaintiffs, the children of Sarah (Briggs) Hogg, by George M. Hogg, against T. C. Clemmons, grantee of J. W. Walker, the purchaser at Master’s sale, J. W. Walker, who claims to hold a mortgage upon the premises, and Lizzie *481 Davis, an heir at law, who was not made a plaintiff, claiming the land as heirs at law of said Sarah (Briggs) Hogg, and as tenants in common with Clemmons and Bizzie Davis.

The case was referred to the Master, who reported in favor of the claim of the plaintiffs and recommended a sale for partition and distribution. Exceptions were filed by the defendants, Clemmons and Walker, to the Master’s report, and the matter came on for trial before Hon. C. J. Ramage, Special Judge, at Barnwell, June term, 1922. On November 25, 1922, Judge Ramage filed a decree -reversing the report of the Master and finding that the deed created an .active trust in Judson Briggs for his life; that on his death the trust became executed, vesting the fee simple title in the children of Judson Briggs, and dismissing the complaint. From -this decree the plaintiffs have appealed, practically upon the single ground that the deed conveyed a life estate to Judson Briggs; that it conveyed nothing to the children of Judson Briggs; and that upon the death cf Judson Briggs the land became subject to partition among the heirs at law of ,Sarah (Briggs) Hogg, who were the four illegitimate children by Geo. M. Hogg, and the children of Judson Briggs.

That a trust was intended to be created by Sarah Hogg sufficiently appears from the preamble of the deed, from the conveyance to Judson Briggs as Trustee, and from the statement of the terms of the trust. Even if the deed does not in terms create a trust, it is sufficient evidence in writing of the creation of the trust. It is not essential that the trust be created in writing under the Statute, Civil Code 1922, § 5453; it is sufficient if it be “manifested and proved” thereby. Elliott v. Mackorell, 19 S. C., 238. Rutledge v. Smith, 1 McCord, Eq., 119. Brown v. Brown, 1 Strob., Eq., 363. Massey v. McIlwain, 2 Hill, Eq., 421. Reid v. Reid, 12 Rich., Eq., 213. Price v. Brown, 4 S. C., 144. Barrett v. Cochran, 11 S. C., 29. Kennedy v. Grambling, 33 S. C., 367; 11 S. E., 1081; 26 Am. St. Rep., 676.

*482 It is clear that if the deed created an active trust in Judson Briggs, Trustee, one not executed by the Statute, the children took an equitable fee simple estate in remainder, upon the death of Judson Briggs.

In determining the question whether or not the trust is executed by the Statute, it is important to determine first what beneficial interest, if any, Judson Briggs took under the deed. For it is manifest that, if he took a life estate, the provisions that he shall manage, control, and use the property during his life are referable to his enjoyment, personally, of that life estate, and imposed no duties upon him as Trustee, and that, therefore, the Statute executed the trust, vesting in him a life estate, and in the children the remainder in fee. On the other hand, if he took no beneficial interest under the deed, it is equally manifest that he was simply a trustee for the children, with the imposed duties of managing and controlling the property as long as he lived, in which event the trust would be active, and not executed by the Statute.

In the first place the preamble of the deed declares that he had been appointed “trustee of his children,” not of himself and the children, and the grant is “to Judson Briggs, Trustee as aforesaid.” In order to construe the provisions that follow, in reference to the use, management, and control of the property during his life, as conferring a beneficial interest upon him personally, it should appear that those provisions are inconsistent with the interests of the persons for whom he has been appointed trustee. I do not think that they are. In fact, they are entirely consistent with those interests. The beneficiaries were small children and others expectant; some one in the nature of the case must have been charged with the control and management of the property; and nothing was more natural than that the father should be charged with.that duty.

In Holder v. Melvin, 106 S. C., 245; 91 S.E., 97, the deed was to James M. Holder in trust for his wife and *483 children, and to him was given the use, control, and cultivation of the land for the use of his wife and children. The Trustee, of course, had no beneficial interest in the property under that trust. Just so in the case at bar the deed was to Judson Briggs in trust for his children/ the use, control and management of the property being committed to him as Trustee “for the uses and purposes as aforesaid,” which was the same as if it had been stated “for the use of his children.” It follows that Judson Briggs was simply a trustee for his children, charged with the duty of controlling and managing the property as long as he lived, and that the trust was an active one which was not executed by the Statute.

I think it is equally clear that Mrs. Hogg intended to part with her entire interest in the property, and that to carry out that purpose it is essential that the children should take the fee upon the death of the Trustee, although there are no words of inheritance contained in the provision for the remaindermen. The receipt of $10.00 consideration, and the provision- that the property should “vest” in the children, sustained this view under the case of Holder v. Melvin, supra, and cases cited therein.

It is not strictly accurate to say that upon the death of Judson Briggs the Statute executed the trust and vested the fee in the children. Rather, that upon the death of Judson Briggs the trust terminated, and the limitation of the deed went into effect:

“At his death the said real estate hereinafter described shall descend and be equally divided among and vest in his said children.”

Construing the deed as creating an active trust, not executed by the Statute, the objection of the appellant that the deed lacks the necessary words of inheritance to carry the fee to the children, is plainly untenable. McMichael v. Med Michael, 51 S. C., 555; 29 S. E., 403. Bratton v. Massey, 15 S. C., 284. Poster v. Glover, 46 S. C., 538; 24 S. E,, *484 370. Hunt V. Nolen, 46 S. C., 356; 24 S. E., 543. Fuller v. Missroon, 35 S. C., 314; 14 S. E., 714. Rembert v. Evans, 86 S. C., 445; 68 S. E., 659., Holder v. Melvin, 106 S. C., 245; 91 S. E., 97.

In any event, the judgment dismissing the complaint was right upon this, if upon no other, ground: The appellants practically concede that the children of Judson Briggs took life estates under the deed, and, if so, the present proceeding is premature.

A serious question might be presented if it should be held that Judson Briggs took a life estate under the deed with remainder to the children. In that event, there being no duties imposed upon him as Trustee, the Statute would execute the trust, giving to him immediately a legal life estate, and to the children a legal fee in the remainder. Under these circumstances would words of inheritance be necessary to carry the fee to the remaindermen? I have not considered this phase of the case for the reason that, having concluded that the trust was not executed, the question suggested becomes academic.

For these reasons, more in amplification, than otherwise, of the conclusion of Mr. Justice Fraser, I concur in affirming the decree. ^