LIMA v. COOK

Deed. Trust. Uses, Statute of. Practice, Civil, Verdict, Money paid into court. Claimant.

A woman of advanced age and physically weak, with two daughters, one of whom neglected her and the other of whom lived with her and nursed and cared for her, having previously made a power of attorney irrevocable for five years to an agent with whom she and her faithful daughter had had many disagreements about her business, desiring to be relieved from the care and worry involved in the management of her property which consisted principally of rentable real estate, made a quitclaim deed of all her property to her faithful daughter, her heirs and assigns "in trust for myself during the term of my natural life and upon and after my death in trust for the benefit of said grantee and her heirs and assigns forever." Held, that although a possible construction of the words of the deed was that the use was executed by the statute of uses and that the grantor obtained a legal estate for life with a remainder in fee to the grantee and her heirs, yet, under the circumstances mentioned above, the more natural and the true construction was that the grant was upon a trust or a use upon a use which remained unexecuted, and that the grantee took the estate in fee in trust for the benefit of the grantor during her life.

In an action, by the trustee under a deed made by a woman of advanced age and physically weak conveying all her property to the plaintiff in trust for the benefit of the grantor during her life, against a person previously appointed by the grantor as her agent, to recover rents collected by him from the real estate of such grantor and not paid over, where the defendant has paid into court the money collected by him and has caused the beneficiary to be made a party as claimant, and the presiding judge has ordered a verdict for the claimant, such verdict will not be set aside upon a decision by this court that the plaintiff is entitled to the money, as all that the plaintiff could do with the money, if paid to him, would be to pass it over to the claimant, an idle ceremony which the law does not require.

BRALEY, J.

The deed in its terms being sufficient to transfer the title, and give effect to the intention of the parties, any further consideration of the form of the conveyance, although without covenants either of seisin, or of the right to convey, or of warranty, becomes unnecessary. Hunt v. Hunt, 14 Pick. 374. Kyle v. Kavanagh, 103 Mass. 356. Sawyer v. Cook, 188 Mass. 163, 165. In limitation of the habendum, the grantor uses this language, "in trust for myself during the term of my natural life and upon and after my death in trust for the benefit of the said grantee and her heirs and assigns forever." A possible construction of this clause would be, that the use was executed by the statute of uses, and the grantor obtained a legal estate for life, with a remainder in fee to the grantee and her heirs. Richardson v. Stodder, 100 Mass. 528, 529. Carr v. Richardson, 157 Mass. 576, 577. But while the question is one of some nicety, by reason of the great subtilty in the distinctions which have arisen under the statute, the more natural construction under the circumstances attendant upon her advanced age, her family relations, and business differences with the co-defendant, is, that the grant was upon a trust, or a use upon a use, which remained unexecuted. The plaintiff accordingly took the estate in fee, and in trust for the benefit of the grantor during her life. Packard v. Old Colony Railroad, 168 Mass. 92, 96. Dakin v. Savage, 172 Mass. 23, 27. It does not, however, follow that the verdict for the defendant was wrongly ordered. The equitable life tenant's share in the rents which had been collected had been deposited in court pending the litigation, and was subject to its order, and all that remained was to direct the payment of the fund to the beneficiary to whom alone it belonged. There being no active duty devolving upon the trustee during the life of the agreement with Cook, this payment properly could be made without her intervention. Under these conditions to direct the payment to be made to the plaintiff, who at once must pass the money over to the equitable owner would be an idle ceremony, which the law does not require. Underwood v. Boston Five Cents Savings Bank, 141 Mass. 305, 306.

Judgment for the claimant on the verdict.