
    Nancy Broadrup et al. v. Thomas Woodman et al.
    5. conveyed a tract of land to W. by a deed absolute in form. Subsequently a creditor of S. brought suit against him and W. to subject the land to the payment of his claim. W. answered in writing that he held the' land in trust for the payment of certain specified debts of S. and for the support of his wife and child so far as necessary, and the creditor failed in his suit. S. died, and W. paid the specified debts of S. and supported his wife until her second marriage, and the child until he arrived at majority. W. died seized of the land, and the late wife and child of S. ask for an account and a decree compelling the devisees of W. to convey to them the land. Held:
    
    1. The answer of W. in a former suit, relating to the same land and deed in controversy in this case, signed by him, is admissible to prove that the deed was a deed of trust.
    2. The answer shows that the deed of S. to W., though absolute in form, was a deed of trust, and not a purchase for the sole use of the grantee.
    B. Under the terms and conditions of the trust stated in the answer, the use of the wife is limited to her support while she remained unmarried, and that of the child to his support during his minority,
    d. Neither the grantee nor the wife is entitled to the residue of the trust property remaining after the trust has been executed.
    
      ■6. Such residue in excess of the use declared, results to the use of the child, as the heir of the deceased grantor, subject to any dower right the wife may have therein.
    6. The heir is entitled to an account, and a decree against the devisees of the grantee in the deed, for the residue of the trust property in their hands.
    Error to the Superior Court of Montgomery county
    The original action was brought to establish a trust in land. The ease is this: Nancy Woodman married Gran-ville Shelby. They had one child, John Shelby. Granville having enlisted in the army, and expecting to be absent five years, on the 28th day of June, 1848, joined with his wife and deeded sixty-six and a half acres of land, of which he was seized, in Montgomery county, to Samuel Woodman, the father of his wife. The deed, on its face, was an abso lute deed in fee, and the consideration named in the deed was two thousand dollars. The -wife and child went back to her father’s house; and in November following she filed a petition for divorce, which was granted in May, 1849, for the adultery of her husband. Pending the divorce case, in April, 1849, Granville, her husband, confessed judgment in favor of one Forsythe, for $2,100. As Granville had no property to satisfy execution on the judgment, Forsythe brought suit against him and Samuel Woodman to subject the land, deeded as before stated, to the satisfaction of the judgment. On the 8th day of August, 1849, Woodman filed an answer, signed and sworn to by him. In the answer he admits the execution of the deed to him by Gran-ville Shelby and his wife, for the nominal consideration of two thousand dollars, but says the real consideration and circumstances under which the deed was made were as follows :
    “ Granville Shelby had married his daughter, by whom he had one child, a male infant about eleven months old at the execution of said deed. The said Granville Shelby had some time before enlisted as a soldier in the army of the United States, for the period of five years ; and expecting shortly to be ordered away on service, he applied to this defendant to purchase the said tract of land, and proposed the following terms: That this defendant should pay him one hundred dollars as follows : to deduct therefrom sixty dollars, which Granville Shelby then owed this defendant, for which he held his two notes — one for forty-five dollars, the other for fifteen dollars — given by him to this defendant foragood consideration, and then due and unpaid in whole or in part; that this defendant should satisfy and discharge a judgment on the docket of Esq. Watson of one Sellers, against him, for sixteen dollars, and should also satisfy and discharge a claim of Israel Olinger on the said Granville Shelby on which his mother, Sarah Shelby, was security for him — amounting to about twenty-seven dollars, which the said Granville Shelby declared were all the debts he then owed, and that the remainder of the one hundred dollars should be paid by this defendant to him — and also, on the further consideration, that this defendant should take home-his "wife and child, take care of them, and provide for them necessaries and comforts; and if he should sell the said lands, to appropriate the proceeds, or so much thereof as was necessary for the support and maintenance of his wife- and for the support, maintenance, and education of his child.
    “ This defendant being satisfied that the said Granville' Shelby, from his character and habits, would squander this, property, and leave his wife and child utterly destitute and dependent, did, on the importunity of the said Granville Shelby, accept his proposition, and he accordingly, with his wife, executed and delivered the deed to this defendant;, and he has paid not only the sum of one hundred dollars, in the mode and manner proposed, but the further sum of fifty-five dollars.
    ^ '-k
    
    “ This defendant further answers, that he now holds the-said premises in trust for the use and benefit of his said daughter and her child, and the proceeds thereof, if he-should sell the same, for the same purpose, and to reimburse himself for the money advanced by him to GranvilleShelby.”
    Forsythe’s petition was dismissed.
    In 1853, Granville Shelby died. In 1854, Nancy, his divorced wife, married William Broadrup, and then left her father’s and lived with her husband. In 1860, Samuel Woodman, her father, also died. John Shelby, her son, continued to live with his grandfather, Woodman, until his-death, and afterward lived in his family until he arrived at the age of majority.
    On the 10th day of November, 1865, Nancy Broadrup and. her husband filed their petition in the Superior Court of Montgomery county, against Thomas Woodman and others, heirs and devisees of Samuel Woodman, deceased, charging that the deed of Granville Shelby to Samuel Woodman, though absolute on its face, was in truth a deed in trust, after paying certain claims, for the benefit of Nancy Broadrup and her son, John Shelby, who was made defendant The facts upon which the alleged trust is based, as stated in the petition, are nearly the same as those stated in the answer of Woodman to the bill of Eorsythe against him in 1849. The petition charges that Woodman and his devisees have enjoyed the l’ents and profits of the land, which are said to be more than sufficient to pay all the debts of Shelby ■and the expense of supporting the above-named beneficiaries of the trust. The petition prays for an account, and that the land may be decreed to Nancy Broadrup and her son John Shelby.
    John Shelby, by his guardian, answered, admitting the allegations of the petition, but denied that Nancy Broadrup is entitled to any further benefit of the trust, and prayed for an account, and that a conveyance of the land may be •decreed to him alone.
    The other defendants answered denying the trust alleged in the petition, and aver that no written instrument exists establishing the trust, or binding their ancestor to reconvey the land to Nancy Broadrup. They further aver that the consideration for which the land was conveyed to tbeir ancestor, as stated in the petition, was fully paid and performed by him and the defendants. They also further aver :
    “ That although it was no part of the contract or consideration, in the purchase or conveyance of said land, yet that it was the intention of said Woodman, declared before his decease, to devise said land to his grandson, John Shelby, ■or bequeath him a sum of money equivalent in value to the •same; and that in pursuance of said intention, he did bequeath to said John Shelby the sum of twenty-five hundred dollars, payable on his arrival at majority.”
    
      The plaintiffs replied that Samuel Woodman, in the Forsythe case, answered, under oath in writing, that he held the land in trust for the uses mentioned in the petition; and deny that the legacy to John Shelby was intended to be in lieu of the land.
    The answer of Samuel Woodman and the record in the Forsythe ease, were given in evidence on the trial; also, in-addition to the facts already stated, a written memorandum, made at the request of Samuel Woodman (who could not write) about the year 1854, was given in evidence by the defendants (except John Shelby). The memorandum is as follows :
    “ On the 28th day of June, a. d. 1848, I received from Granville H. Shelby and Nancy, his wife, a conveyance of a tract of land, situated in section 10, town 3, range 5 east, Montgomery county, Ohio, containing 66J acres, more or less. The consideration mentioned in the deed is nominal. The real consideration is as follows : That I was to take his-■wife and son John home with me, and provide for them in every way, as if they never had left my house, to educate the hoy in a proper manner, and to pay certain debts of the-said Granville Shelby. Under this agreement I received the conveyance, and took my daughter, Mrs. Shelby, and her son borne with me, where they both remained until the marriage of my daughter, she having been divorced from Granville Shelby in--.
    “ It is my intention to devise the above tract of land to-my grandson, John Shelby, or bequeath to him a sum of money equivalent in value to said tract.
    “ The following is an account of the monies I have paid upon matters growing out of the above transaction, for taxes, etc.:
    “ Taxes of 1848.............................................$ 5 37
    “ “ 1849............................................. 9 86
    “ “ 1850............................................. 10 20
    “ “ 1851........................... 12 24
    “ “ 1852............................................. 13 26
    “ « 1853............................................. 16 57
    Fees of Crane & Davies for attending to Chancery.
    
      and Law suits, in relation to said land, brought
    by Shelby & E. J. Eorsythe against me.......... 275 00 ”
    The will of Samuel Woodman, made shortly before his -death, was given in evidence. The testator states in his will that he had given Nancy Broadrup, by way of advancement, twenty-five hundred dollars. He bequeaths to John Shelby twenty-five hundred dollars, at the age of twenty-one years, to be taken out of the share bequeathed to his mother, who, after accounting for the advancement made to her, is to share nearly equally with the testator’s ■other children.
    The following facts were agreed upon by the parties:
    “ Samuel Woodman, deceased, did during his lifetime pay the sums of money set forth in this answer in the case of Forsythe v. Woodman, Shelby et al; that he did take to his house and care for said plaintiff, Nancy, then wife of Granville Shelby, until she voluntarily, by her subsequent marriage, withdrew from such care and support; said plaintiffs, however, by this admission not affecting her ■claim as alleged, the plaintiff not admitting in the above that her claim, as set forth in her petition, is not correct; but that Samuel Woodman had performed his part of the contract with Granville Shelby; that he did take to his house said John Shelby, son of said Granville Shelby, and care for, board, clothe and school, and otherwise provide for him during the life of said Woodman, and that the widow, hems, and executors of said Woodman have been willing to make ‘and have made provisions for his support during the rest of his minoi’ity.”
    Judgment was rendered against the plaintiffs and John Shelby, who thereupon filed a motion for a new trial, on the ground that the judgment was against the law and the evidence. The motion was overruled, and a bill of exceptions was taken, embodying all the evidence.
    To reverse this judgment, Nancy Broadrup and husband and John Shelby filed a petition in error in the Supreme ■Court.
    
      
      Houk $• McMahon, for plaintiffs in error,
    contended that the answer in Chancery, though subsequent to the deed, was competent and sufficient evidence of the existence of the trust — Hill on Trustees, 61; McCubben v. Cromwell, 7 Gill & John. 157; 18 N. Y. 448; 2 Duvall (Ky.), 571—and submitted the division of the interest, as between mother and sou, to the court for settlement according to the equities of the case.
    
      Connover $ Craighead for defendants in error.
   Day, J.

For the purposes of the present case, it is unnecessary to distinguish between the modes of proving express and implied trusts; for, in this state, the former, as well as the latter, may be proved by. parol. Matthews v. Leaman, 24 Ohio St. 615. Moreover, in the case before us, all the evidence upon which it is sought to establish a trust is in writing, and the principal document is, signed by the party sought to be charged.

The first question to be determined is, whether the deed in controversy, though absolute in form, was a trust deed.

The grantee, under whom the defendants claim, in a suit controverting his title, declared in his written answer, signed and sworn to by him, that the deed was a trust deed, and stated the real consideration of the deed, and the terms and conditions of the trust. In Hutchinson v. Tindall, 2 Green Ch. 357, it was held, that where a bill claims a deed to be a deed in trust, and the answrer admits it, the answer will be good evidence of the trust, and a sufficient writing to support it. To the same effect was the holding in Hampton v. Spencer, 2 Vern. 287. In Cripps v. Jee, Brown Ch. 472, the principle was extended to other written evidence. See also, Leman v. Whitley, 4 Russ. 423.

It is true the answer relied upon as evidence of the trust was not made in this case; but it related to the deed in question, and is none the less clear, certain, and conclusive as evidence of the trust. It not only expressly declares the deed to be a deed of trust, but sets forth and admits a state of fact constituting a trust.

The phraseology of the deed matters little, since it is made to appear clearly that it was made only for the purpose of paying the debts of the grantor, and to furnish necessaries for his wife and child, and that the proceeds, if the lands should be sold, should be appropriated, “ so much thereof as was necessary,” to their maintenance and to the education of the child.

The conduct of-the grantee, as manifested by the memorandum given in evidence, exhibits him as acting in the character of a trustee. He keeps an account of taxes paid on the land, and of moneys expended in establishing and defending the trust. Had he been a purchaser of the land, this was unnecessary; nor would he have been required to appropriate the proceeds of the sale of the land to the support of the grantor’s wife and child, if he had personally assumed their support, as a consideration for the absolute purchase of the land. Such provision for the appropriation of the property is consistent only with the idea of a trust, and not with that of a purchase. Moreover, the circumstances surrounding the conveyance, in the absence of any specific undertaking of the grantee to pay the debts of the grantor and support his wife and child, indicate confidence placed in the grantee in relation to the land and the objects prompting the conveyance, rather than any idea of an absolute sale. Though the deed was absolute in form, we think it entirely clear that it was a deed of trust.

The terms and conditions of the trust are next to be considered. We think they are indicated with sufficient clearness by the written answer of the grantee of the deed, when read in the light of the surrounding circumstances. Certain specified debts of the gx-antor were to be paid, and, so far as necessary, the remainder was to be applied to the support of his wife and child, and to the education of his child.

It is conceded, that the grantee of the deed did care for and support the wife of the grantor until her divorce from him and subsequent marriage, when she withdrew from such support; and that like support was furnished to the son, by the grantee and those claiming under him, until.he arrived at the age of majority. Thus it would seem that the conditions of the trust have been 'fully performed; for it can not be presumed that the support provided for by the trust extended to a period beyond that contemplated by the ordinary parental relation. This is clearly indicated by both the answer and memorandum in evidence ; for it appears by them that the wife and child were . to be taken home by the grantee and cared for as if in their father’s house.

■"Whether the full performance of the trust would exhaust’ the trust property, we have no means of knowing; but from the fact that the property has not been disposed of, nor is claimed to have been spent in discharge of the trust, it may be presumed that it has not. Nor can this fact he ascertained until an account has been taken showing the true-state of the case as between the trustee and the cestuis quetrust.

Assuming that there would remain a surplus in the hands-of the trustees, the question arises, to whom does it belong ?'

It can not, we think, be inferred from the evidence that-the grantor intended it to go to the grantee. It is quite-clear that the grantee had no such idea. His object was to-save the wife and child from destitution. Eor this purpose, and to pay the grantor’s debts, the property was placed in the hands and under the control of the grantee. Moreover,, where the trust character of a deed is established, and a particular use is declared, “ the residue of the use results to the grantor; for the presumption, that the grantor meant to part with the whole use, is thereby repelled,” unless the-contrary be shown by the deed, 2 Story’s Eq. sec. 1199. The-use of the grantee in his trust, as shown by the deed, has a, limited extent, and does not embrace the residue after performing the trusts. Nor does the uses of the wife and child, of the grantor, as shown by the evidence, extend to any residue beyond their necessary support and the education •of the child, for such support and education was the limit ■of their use.

"Where certain trusts are created by a deed, which are fully executed, and yet leave an unexhausted residuum, •“there will arise a resulting trust to the party creating the ,itrust, or to his heirs and legal representatives, as the case may require.” 2 Story’s Eq. sec. 1196a. From this principle it follows, that Granville Shelby, the grantor, being dead, ¡his son, John Shelby, as’his heir, is entitled to the residuum.

Nor can his rights as such heir be affected by the will of-the trustee, made shortly before his death, unless there be .■something of which we are not advised, that may put him •to his election to take either the residuum or under the will.

What, if any, right Mrs. Broadrup may have by way of •dower in the residue, if any there be, we are not called upon to determine. It is only necessary to say that we think there was no error in dismissing her petition to have any part -of the property decreed to her as a beneficiary under the deed of trust. The same must he said as to her co-plaintiff in error, John Shelby. • But he has, though' imperfectly, through his guardian, set up a claim to the entire estate ..after the trust is executed, by way of cross petition or claim.' We think he was entitled, as the heir of the grantor of the •deed in question, to an account, and to a decree for any residue in the hands of the defendants as trustees of the prop•erty held under the deed, by way of a resulting use, subject to any dower right his mother may have therein.

It follows that the judgment of the court below, so far ras it relates to the plaintiff, Nancy Broadrup, might prop•erly be affirmed; but to save to her- all embarrassment as to any right she may have in the property, other than that ■■claimed in her petition, and, as the judgment must be reversed as t'o her co-plaintiff, John Shelby, the judgment may be reversed generally, and the cause remanded for further proceedings.

Scott, Chief Judge, and Wright, J., concurred.

Johnson and Ashburn, JJ., dissented.  