
    BLOODGOOD v. TERRY.
    Contracts — Trusts—Life Estate — Income.
    An. instrument selling and agreeing to transfer certain bank stock and other property on the following condition, viz., “that I am to have the income of said stocks” and other property “during my natural life, and after my decease the said stocks” and other property, “and all income arising therefrom, are to be the property of ” the assignee, did not convey or'agree to convey the income of the property.
    Appeal from Monroe; Chester, J., presiding.
    Submitted May 14, 1903.
    (Docket No. 77.)
    Decided September 15, 1903.
    Bill by Lynott Bloodgood, individually and as administrator of the estate of Eliza T. Bloodgood, deceased, Louise Bloodgood, and Ruth D. Bloodgood, against Milton G. Terry, individually and as executor of the last will and testament of Louisa P. Terry, deceased, to establish a trust and for an accounting. From a decree for complainants, defendant appeals.
    Reversed.
    
      George M. Landon (Fred A. Baker, of counsel), for complainants.
    
      C. A. Golden and E. B. Gilday, for defendant.
   Moore, J.

The bill was filed to establish a trust and for an accounting. Louisa P. Terry, deceased, was the mother of appellant and grandmother of complainants, the children of Eliza T. Bloodgood, deceased, who was the only sister of appellant. The circuit judge held that, by virtue of two instruments (which will be referred to later), Louisa P. Terry became and was a trustee of Eliza T. Bloodgood and her heirs, and held the légal title to all the property in said instruments described and mentioned, and of all the income and accumulations thereof not expended by her in her lifetime, in trust for the use and benefit of said Eliza T. Bloodgood and her heirs, to be delivered and paid to them on her decease, and that her executor should be compelled to account therefor. From that decree the defendant has appealed.

The record discloses that Mr. Harvey Terry, the husband of Louisa P. Terry, was a resident of Connecticut; that he died prior to 1858, leaving a will, by which he gave to bis wife five acres of land and a life interest in the home lot, containing about seven acres. He also gave to her absolutely the household furniture and other personal property, including 11 shares of stock in one bank, and 9 shares of stock in another. He gave to his only daughter, Eliza, who, prior to October, 1858, became Mrs. Blood-good, the privilege of a home in the homestead as long as she remained unmarried, his melodeon, and 10 shares of bank stock. He gave all the rest of his estate to his son, Milton G-. Terry, the defendant.

In October, 1858, Mrs. Terry executed and delivered to her daughter an instrument reading as follows:

“ In consideration of natural affection, and of one dollar to me paid, which I hereby acknowledge paid, I, Louisa P. Terry, of Enfield, Conn., do hereby sell, -assign, and agree to transfer to my daughter, Eliza, the wife of Rev. A. L. Bloodgood, of the same place, the following described stocks, and all my right, title, and interest to and in the same, subject, however, to the condition hereinafter specified, to wit: Eleven shares of the capital stock of the John Hancock Bank of Springfield, Massachusetts, amounting to eleven hundred dollars, the certificate thereof being No. 497, bearing date of July 14th, 1858, made to Louisa Terry (which should have been written Louisa P. Terry), of Enfield, Conn., and signed by J. W. Thompson, president, and E. D. Chapin, cashier.
“Also nine shares of the capital stock of the Western Bank of Springfield, Massachusetts, in two certificates, one of seven shares, of number 341, bearing date of January 1st, 1857, made to H. Terry, of Enfield, Conn., and signed by C. Rice, president, and Gr. P. Bissell, cashier, and one certificate of two shares, of number 462, bearing date of October 9th, 1851, made to Harvey Terry, of En-field, Conn., and signed by C. Rice, president, and Gr. P. Bissell, cashier.
“And also, in consideration of affection, and of one dollar to me paid, which I hereby acknowledge paid, do I hereby sell, assign, and agree to transfer to my daughter, Eliza, the wife of said Rev. A. L. Bloodgood, all of my right, title, and interest in the estate left by my father,. Elisha Parsons, deceased, subject to the use of my mother, Louisa Parsons, during her natural life, and whatever shall be coming to mé from my said father’s estate at the death of my mother.
“ The condition alluded to above is this, to wit: That I am to have the income of said stocks mentioned above, and also the income accruing from my said father’s estate to me upon the death of my mother, during my natural life. And after my decease, the said stocks, and all of my interests in the estate of my father, Elisha Parsons, both by will as well as purchase made of my sister, Mrs. Amelia Chapin, since my father’s death, and all income arising therefrom, are to be the property of my said daughter, Eliza, her heirs and assigns, forever.
“ Witness my hand and seal this seventh day of October, 1858.
“Louisa P. Terry.”

August 10, 1859, Mrs. Terry delivered to her daughter an instrument. The parts material to this controversy read as follows:

“ The last will and testament of L. P. Terry.
“I, Louisa P. Terry, of the town of Enfield, county of Hartford, State of Connecticut, being of sound mind and memory, but mindful of the uncertainty of all human events, do ordain this, my last will and testament, in the following words, to wit: My late deceased husband, prior to his death, and myself, having given in a will to our son, Milton G. Terry, his full and entire share of all our properties owned or. coming to üs, and not having given our daughter, Eliza, her just and equal share, but having been requested by my husband so to do after his decease, do therefore, in order to- make such just distribution, give, devise, and bequeath to my said and only daughter, Eliza, the wife of the Rev. A. L. Bloodgood, of Enfield, Connecticut, and to her heirs and assigns, forever, the following described stocks, and all my right, title, and interest to and in the same, to wit.”

Then follows a description of the bank stock mentioned in the instrument of October 7, 1858.

“And I also give, devise, and bequeath to my said daughter, Eliza, the wife of the said Rev. A. L. Blood-good, all of my right, title, and interest in the estate left by my father, Elisha Parsons, deceased, subject to the use of my mother, Louisa Parsons, during her natural life, and whatever shall be coming to me from my said father’s estate at the death of my mother, Louisa Parsons, including, also, whatever shall come to me of the purchase of my sister Amelia Chapin’s portion, made since my father’s death; intending to make my daughter, Eliza, my sole legatee after my death.
“Louisa P. Terry. [Seal.]”

Attached to this instrument was the following:

“ Having received all that should justly come to me of my father’s or mother’s property, I certify to the above as justly due to my sister, Eliza, now Mrs. A. L. Bloodgood, and therefore renounce all interest, right, or title whatever in the same, forever.
“Milton G. Terry.
“August 10, 1859.”

Mrs. Bloodgood, the daughter, died in October, 1888, leaving complainants her only heirs at law. It was the two instruments mentioned above which the circuit judge held constituted a trust.

A further statement seems necessary to an understanding of the case. It is the claim of defendant, and there is testimony tending to sustain it, that, after the death of Harvey Terry, defendant and his mother continued to live on the homestead in Connecticut for eight years; that he improved the farm, greatly increasing its value; and that, from the income from the farm and the $1,100 stock in the John Hancock Bank, his mother bought from $1,500 to $2,000 worth of United States bonds. It is his claim that in 1865 the defendant and his mother sold the real estate in Connecticut for the sum of $8,000; that of the real estate so sold the defendant owned 27 acres, and the fee to the home subject to the mother’s life estate, and the mother owned, in addition to her life estate in the home lot, 5 acres of land in fee; that the defendant and his mother then moved to the city of Monroe, Mich., and invested between $6,400 and $6,700 in a home in said city, the title to which was taken in the mother’s name; that the balance of the $8,000 was given to the mother, who kept it invested till the time of her death.

Mrs. Terry died in December, 1901, at the age of 93 years and 5 months. At the time of her death her estate inventoried $8,225. During her lifetime she assigned to defendant mortgages aggregating $2,000. On August 10, 1889, she made her last will, by the terms of which she gave to complainants ‘ ‘ eleven shares of the capital stock of the John Hancock National Bank of Springfield, Mass., with all interest and dividends thereon that may be unpaid at the time of my decease;” and, further:

“I give and bequeath [to complainants] the sum of nineteen hundred dollars, to be divided between them, share and share alike, and to be paid to them within one year after my decease, with interest from and after my decease until so paid. The nineteen hundred dollars so above bequeathed is the full amount and sum I received and realized from the nine shares of the stock of the Western Bank, Springfield, Mass., and from my father’s estate, and from the purchase from my sister, Amelia Chapin, and this, with the eleven shares of the bank stock of the John Hancock National Bank, is in compliance with and discharge of the agreement heretofore made with my daughter, Eliza Bloodgoo'd, now deceased, the mother of my said grandchildren, the beneficiaries above named,-”

It also gave to the complainants the wearing apparel and personal ornaments, silver and china ware, etc., of the deceased. This will was duly admitted to probate.

On the part of defendant it is claimed that the paper of October 7, 1858, was not a transfer of property, but at most was but an agreement to transfer at some future time, and was without" consideration, and revocable; that the parties so construed it when Mrs. Terry made the will in 1859. In our view of the case, we do not deem it necessary to decide this contention. Giving the instrument of October 7, 1858, the fullest effect, we think it-conveys to Mrs. Bloodgood and her heirs the property described therein, reserving to Mrs. Terry the income therefrom as long as she lived. There is no ambiguity in the language used. This, too, was the construction put upon it by the parties. Mrs. Terry lived nearly 44 years after the delivery of the paper of October, 1858. During that time no one asked her for the unexpended portion of the income. Thirty-one years after making the paper she gave her understanding of the transaction by the making of the will which was admitted to probate. We think the circuit judge erred in the construction he gave to the language employed by Mrs. Terry. It is not questioned that the will which was admitted to probate accounts for the proceeds of all the property mentioned in the paper of October, 1858, exclusive of the income therefrom during the life of Mrs. Terry. It follows that there was no occasion for filing the bill of complaint.

The decree is reversed, and one will be entered here dismissing the bill of complaint, with costs of both courts to the defendant.

The other Justices concurred.  