
    George McArthur, as Committee, Resp’t, v. Henry Gordon et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 27, 1891.)
    
    Will—Trust—Declaration of trust.
    Where a farm is conveyed to a grantee, -who binds himself to support, the grantor or some other person then living upon the farm out of the income of the farm, and such support is made a lien upon the farm, the support must be furnished and taken upon the farm, and if the grantee offers and is ready and willing to support the beneficiary upon the farm in a proper and suitable manner, an action cannot be maintained against such grantee for the support of such beneficiary elsewhere.
    (Ruqer, Oh. J., O’Brien and Finch, JJ., dissenting.)
    Appeal from judgment of the supreme court, general term, third department, modifying and affirming judgment in favor of plaintiff.
    
      A. D. Wait, for app’lts; Matthew Male, for resp’t.
    
      
       Reversing 21 N. Y. State Rep., 659.
    
   Earl, J.

I have no doubt that a valid trust was created by the defendant Gordon by the instrument of April 19,1876. The trust was declared by deed in writing, as required by the Revised Statutes, 2 R. S., 134, §§ 6 and 7. It was not necessary that the deed should be based upon any consideration, or that it should be delivered. Fisher v. Fields, 10 Johns., 495; Wright v. Douglass, 7 N. Y., 564; Cook v. Barr, 44 id., 156; Van Cott v. Prentice, 104 id., 45; 5 N. Y. State Rep., 654; Montague v. Hayes, 10 Gray, 609; Urann v. Coates, 109 Mass., 581; Adams v. Adams, 21 Wall, 185; 1 Perry on Trusts, § 82.

This trust must be treated as originating with Gordon. It was declared by him, and there is no evidence of any trust declared or created by Miss McDonal. The deed from her, however, may be considered for the purpose of showing the inducement of the declaration of trust by Gordon, and as one of the circumstances bearing upon the construction of that declaration.

The trust was not only properly created, but it is an express, active trust authorized by and specified in § 55, 1 R. S., 728.

On the part of the plaintiff it is contended that Larmouth was not bound to take his support upon the farm which, by the declaration of trust, is charged with such support, and so the courts below held, and in this, I think, they erred.

We are dealing with a situation contemplated and provided for in the trust deed. Gordon has sold the farm, and hence the proper maintenance of Larmouth in board and clothing is charged thereon and made the first lien during his life, and so long as the defendants were willing to support Larmouth in a comfortable and suitable manner upon the farm, he had no right to demand it elsewhere. There is no fixed rule for the construction of such a trust as this. The intention of the creator of the trust, as it can be gathered from the instrument declaring it, and the surrounding circumstances, must control. This trust was voluntarily created by Gordon, and the sole question for our determination is, what did he mean when he voluntarily bound himself to appropriate the net rents of the farm for the comfortable support of Larmouth, or if he sold the farm that Larmouth’s proper maintenance in board and clothing should be the first lien upon the same? Larmouth had always lived upon this farm, and it was his home at the time the trust was declared. It is not reasonable to suppose that Gordon meant to assume the obligation to take the net proceeds of this farm and apply them for the support of Larmouth wherever he might choose to take such support. He was an incompetent person, incapable ■of taking care of himself, and it must have been the intention of Gordon that he should remain upon the farm where he could look after and watch over and provide for him in the manner in which he had been provided for before, and such probably was the expectation of Larmouth’s mother when she executed the deed to Gordon. It is quite true that covenants for the support generally of a person of full age, and competent to take care of himself, require such support to be furnished where the person to be supported wishes to take it, and that the party bound to furnish the support cannot insist that the person to be supported shall live in his family or at any particular place. That is the rule in reference to capable adults, not members of the obligor’s family; but in cases of minors and persons incompetent to take care of themselves the courts have given a different construction to such ^covenants.

In McKillip v. McKillip, 8 Barb., 552, the facts are very similar to those we have here. There Archibald McKillip conveyed to his son John McKillip real estate, and in consideration thereof John executed- to his father a bond, the condition of which was. that if he, his heirs, executors or administrators, “ shall and do at all times hereafter maintain, support and clothe the said Archibald McKillip and his son James, who is now ill and deprived of his reason, during their natural lives, and during the natural life of the longest liver of them, and furnish good and sufficient nursing and medical attendance, washing and lodging, both in sickness and health, for each of them during the term aforesaid, then this obligation to be void and of no effect, otherwise to remain in full force and virtue.” The defendants in the action were the widow and heirs at law of John McKillip, the obligor. The plaintiff was the administrator of Archibald, one of the obligees, and also the committee of the lunatic James. It appeared in the evidence that. John McKillip, the obligor, had from the time of the execution of the bond, and up to his death, maintained his father and brother at the homestead upon the premises conveyed as the consideration of the bond, and that after his death the defendants, as his widow and heirs at law, offered to continue such maintenance according to the condition of the bond at their residence; but Archibald declined the offer, and went to live with the plaintiff, and was supported by him. This was done without the consent or approval of the defendants. The action was brought by the plaintiff to recover for the maintenance and support furnished by him to Archibald and James, and he prayed judgment that payment might be decreed to be made for the amount which the plaintiff was justly entitled to demand and receive on account of the indebtness set forth in the complaint, and, in default of payment, that the real estate referred to in the bond might be sold, and an equitable lien thereon be decreed for the support and maintenance of Archibald and James. The court held that the obligor by his bond was bound only to maintain and support the obligee and his son at his own dwelling-house, provided it could be done there in a suitable manner, and that after the decease of the obligor, the family residence, so long as it was maintained, was the place of support. Hubbard, J., writing the opinion, said: “Looking at the situation of the parties and the-relations existing, it is manifest that the intent of the bond was that Archibald and James should become and remain inmates of the family of John, the obligor, and that he was to support and provide" for them at his own house. After his decease, the family residence, so long as it was maintained, was obviously intended as the place of future support The plaintiff has plainly misconceived the real object and intent of this family arrangement, and has erroneously regarded this as a money bond, and that the residence of Archibald and James was a matter discretionary with them, or subject to the interference of any third person.” The opinion of Judge Hubbard was concurred in by Judges Gridley and Allen, and the case has been frequently cited and, so far as I can discover, never questioned.

In Pool v. Pool, 1 Hill., 580, the plaintiff, a man of advanced age, transferred a house and some other property to the defendant and another, his two sons, they covenanting to pay his debts and to support him during life'j also to keep and maintain his two younger children, one of them then eleven years old, until they should arrive at the age of twenty-one, “in a manner suitable for the said Pool to provide for them in case he should live and had not conveyed away his property.” The youngest child having remained with the defendant six years under this arrangement, left him and did not return; and it was held that the plaintiff could not recover for his board or clothing after he had thus left, the covenant, in effect, only binding the defendant and his brother to provide for him as a member of the family. Bronson, J., writing the opinion of this court, said : “ If we look at the contract in connection with the facts as they existed at the time, there can be no great difficulty in understanding what the parties meant by this family arrangement. The plaintiff, being then about sixty-eight years old, transferred his little property to his two sons, Abraham and John, on their undertaking to pay his debts and provide for him for life, and on their further agreeing to provide for the plaintiff’s two younger children, Jeremiah and Dorothy, until they should respectively attain the age of twenty-one years. The two sons were of course to have possession of the house and other property and I think it quite evident that the plaintiff was to live with them. Such also must, I think, have been the intention in relation to the two younger children. Abraham and John were to “ keep and maintain,” or as it is afterwards expressed “ keep and provide for them; " and it was to be done “in a manner suitable for the said John Pool (the father) to proyide for them in case he should live and have not conveyed away his property.” In short the intention seems to have been that Abraham and John should become the head of the family and should stand in loco parentis to the two younger children. The property which the two sons received aid not exceed $450 in value after the payment of debts and it is impossible to suppose that they were to provide for the two children in any other way than as members of their family.”

In Loomis v. Loomis, 35 Barb., 624, the facts were as follows: Hezekiah Loomis by an ante-nuptial agreement executed by him and his intended wife bound himself, his administrators and executors, to give her “ a good and sufficient maintenance during her natural life; ” and it was held that after the death of the husband his widow had a right to choose her place of residence and that her husband’s executor had no right to control her choice or to refuse to provide for her support unless she would reside at his own house and with his own family or at another house specified by him. In that case, prior to the commencement of the action, the plaintiff applied to the defendant as executor and demanded of him that he should provide and pay for her support and maintenance under and in pursuance of the ante-nuptial agreement. The defendant offered to support the plaintiff at his own house with his own family, but refused to provide or pay for her support or maintenance at any other place. She refused to live with him and so notified him and claimed the right to elect ,where she should reside; and the court looking at the ante-nuptial agreement and the surrounding circumstances held that they did not indicate that the plaintiff was to be maintained at any particular place after the death of her husband. Balcom, P. J., writing the opinion, referred to the case of McKillip v. McKillip, and in distinguishing it from the case he was then deciding laid stress upon the fact that the person to be supported was deprived of his reason and was not competent to select where or how he would be supported or kept.

Not only do the surrounding circumstances here indicate an intention that Larmouth should have his maintenance upon the farm, but the same inference follows from the language of the deed of trust. His support is made a lien upon the farm, and it must be the general rule that where a farm is conveyed to a grantee who binds himself to support the grantor, or some other person, then living upon the farm out of the income of the farm, and such support is made a lien upon the farm, the support must be furnished and taken upon the farm. Such I think would be the common understanding of such language so used, and such should be the construction thereof unless the circumstances of the case require or justify a different construction. ■

My conclusion therefore is that if the defendants offered, and were ready and willing to support Larmouth upon the farm in a proper and suitable manner, the action cannot be maintained against them. The action was not commenced or tried on behalf of the plaintiff, or decided, upon the theory that Larmouth had been refused proper support upon the farm, and there was no "proof justifying any judgment against them upon that theory.

I have not been careful to .distinguish between the two defendants and have deemed it sufficiently accurate for the purposes now in hand to spealc of them jointly or generally. Their obligations to each other, or their separate obligations to Larmouth are not, in the view I take, of any present consequence.

The judgment of the general and of the special terms should be reversed and a new trial granted, costs to abide event.

O’Brien, J. (dissenting.)

The facts found by the trial court in this case are not without evidence to sustain them. It is true that some of them are not established by the testimony of witnesses, but they could have been and were legitimately inferred from the conduct of the parties, their relations to each other, the contents of the various papers introduced and the circumstances surrounding the transaction. We must deal with the case upon the facts as they come to us from the special and general terms. The plaintiff is the committee of the person and estate of one Ebenezer Larmouth, a person of unsound mind, and as such he brings this action for the purpose of enforcing a trust and procuring an accounting from the trustee. Larmouth’s mother was for many years before her death the owner of a. farm of about forty-five acres of land in Washington county, and he was her only child and heir. On the 21st day of May, 1873, she executed a will containing these provisions:

Second. Desiring to give my son Ebenezer Larmouth a good and sufficient support for and during his natural life, I do hereby give, bequeath and devise to my executor hereinafter named, and his successors, all my property which I shall own at the time of my decease, both real and personal, of every name and nature, in trust nevertheless, to receive the rents and profits thereof and apply them to the use of my said son Ebenezer Larmouth, during his natural life. Third. And further, I bequeath and devise to my pastor, Rev. Henry Gordon, all my property, both in personal and real estate, after the death of my said son Ebenezer Larmouth. Said property being the same as above bequeathed to my executor hereinafter named.”

She died on the 3rd of March, 1876, and the will was admitted to probate on the 11th of that month. While this instrument tends to show the intentions of the testator in regard to her son, it is of very little importance in this controversy in other respects, as the mother, before it became operative by her death, had recourse to another method of executing her purpose. This small farm seems to have constituted substantially her entire property, and on the 16th of October, 1874, about a year and a half before her death, she conveyed it to Gordon by warranty deed. It is stated in this conveyance that it was made “ in consideration of one dollar and other valuable considerations, to her duly paid,” but her purpose in making it is not otherwise expressed upon the face of the instrument. On the 19th of April, 1876, shortly after the death of Larmouth’s mother, the grantor in the conveyance, Gordon, the grantee, executed under seal, acknowledged and procured to be recorded in the clerk’s office of the county the following instrument :

“ Know all men by these presents: That because of certain real estate conveyed to me by Ellis McDonal, late of"the town of Jackson, Washington county, Hew York, I, Henry Gordon, of Coila, Washington county, Hew York, do of my own free will and accord hereby consider myself, heirs, executors or administrators, holden and firmly bound to appropriate or cause to be appropriated for the comfortable support of Ebenezer Larmouth, during his life, all the rents, after deducting necessary expenses, of said, real estate, or if said real estate should be sold the proper maintenance m board and clothing should be first lien upon said real estate during the life of said Ebenezer Larmouth, the subscriber to this bond distinctly asserts that its obligations on him are limited to the rents of said real estate, or to the interest on the purchase money, should said real estate be sold.”

The proper construction and legal effect of this instrument upon Gordon’s title to the land conveyed to him are the principal questions involved in this appeal. It furnished, as we think, the evidence of a trust in the land for the use of Larmouth during his life, and while the title was vested in Gordon, the trustee, the beneficiary of the trust could enforce its performance in equity, 1 R. S., 729, § 60, and that is the purpose of the present action. The statute provides that “no trust shall be hereafter created, granted or declared unless by act or operation of the law, or by deed or conveyance in writing subscribed by the party creating or declaring the same.” 2 R. S., 134, § 6. But the next succeeding section, as amended by chap. 322 of the Laws of 1860, provides that § 6 shall not be construed to prevent “ any declaration of trust from being proved by any writing subscribed by the party declaring the same.” The conclusion of the courts below that there was a trust created by this instrument for the benefit of Larmouth, during his life, and that the trustee was bound during that period to appropriate the net rents or income of the land to the support of the beneficiary, was justified by the language of the paper and the provisions of the statute, as well as the authority of the adjudged cases. Wright v. Douglass, 7 N. Y., 564; Cook v. Barr, 44 id., 156; Van Cott v. Prentice, 104 id., 45; 5 N. Y. State Rep., 654.

The legal title, as already observed, was in the trustee, and he had power to convey the same, but as the declaration of trust was recorded his grantee was chargeable with notice of the trust, as the recording a¿ts embrace every instrument in writing by which the title to real estate may be affected in law or equity. 1 R. S., 762, § 88. On the 22d of January, 1877, Gordon and wife conveyed the farm to the defendant Davis. The consideration expressed in the deed is $500, and “ the covenants and conditions hereinafter contained.” It was stipulated in this conveyance that it was made subject to the conditions that Davis, the grantee, should provide and furnish Larmouth suitable clothing, food and necessary lodging, medical attendance and medicine, during his natural life, which conditions the grantee covenanted with the grantor to discharge and perform, and both parties to the conveyance mutually covenanted for themselves, their heirs, executors and administrators, that the support and maintenance of Larmouth should constitute and remain an “ indefeasible lien ” upon the land thus conveyed during his natural life. Thus the defendant Davis had actual as well as constructive notice that the land was bound by the trust to support Larmouth while he lived. It was claimed by Davis on the trial that his deed did not express the actual conditions upon which he took the conveyance. That the agreement between himself and Gordon when the deed was made was that he should support Larmouth on the premises and not elsewhere, and he asked in his answer that the deed in that respect be made to conform to the actual agreement of the parties to the same. This relief was refused by the trial court. Without examining the evidence for the purpose of ascertaining whether this claim was conclusively established as matter of fact, it is sufficient to observe that the trust upon which Gordon took the farm was not limited to the support of Larmouth on the premises, or at any other particular place, but to appropriate or cause to he appropriated, the net rents or income of the farm, or the interest on the purchase money in case of a sale, for his support generally.

The obligations of the trustee were discharged only when the net rent or income of the land or the interest on the purchase money was actually paid to the beneficiary, or for his benefit, and he could not make this obligation conditional upon the residence of Larmoutk upon the farm. He had no power to control his movements or dictate the place of his abode. The nature of the trust and the extent of the trustee’s powers were matters of which it must be assumed Davis had notice, and he could not discharge the burden and lien with which the land was charged by requiring the beneficiary of the trust to live with his tenants or in some other place that might be convenient or advantageous to him, but not agreeable or beneficial to the person in whose interests the trust was created. The trustee and his grantee could not by agreement between themselves, and without the consent of the beneficiary, fix the place of his abode, and relieve themselves and the land from the burden of his support unless he accepted it at such place, in such manner and upon such terms as they thought proper to prescribe. The defendants did not present any account of the actual receipts or income from the use of the farm, and it seems that they .left none. Under these circumstances the claim in favor of the beneficiary could not be determined in any other way. except by proof of the value of the net rents or income of the land. Much testimony bearing upon this question was given at the trial. As usual in such cases it is quite conflicting. The trial court found that the net receipts or income from the use of the farm was $175 per year. This would seem to be quite a large rental for so small a farm, but that was a question of fact for the trial court to determine upon all the proofs before it, and we are bound by the finding. The total net income at this rate per year, with interest thereon, was computed from March 3, 1876, when Larmouth’s mother died, to the date of the decision by the special term, and the whole sum, with interest, adjudged to be a lien upon the land, for the payment and satisfaction of which a sale thereof was directed, subject to the future application of the net annual income for Larmouth’s benefit during his life. In case the whole amount of the judgment was not realized from a sale of the land upon these conditions, the defendants, Gordon and Davis, were adjudged to pay the deficiency.

One of the defenses interposed by the defendants was that the action was- barred by the statute of limitations, and that point is still urged upon this appeal. The statute is not available to the defendants, as it does not begin to run in favor of a trustee against a beneficiary of the trust until the trustee has openly, to the knowledge of the beneficiary, renounced, disclaimed or repudiated the trust. Lammer v. Stoddard, 103 N. Y., 672; 1 N. Y. State Rep., 225; 1 Perry on Trustees, § 863; Kane v. Bloodgood, 7 Johns. Ch., 90; Angell on Limitations, § 166.

The only right that the beneficiary had was to enforce the per-' formance of the trust in equity, and an action for that purpose could be commenced under the provisions of § 388 of the Code of Civil Procedure at any time within ten years from default on' thes part of the trustee, and that period had not expired at the time this action was commenced. That portion of the judgment which subjects the net income of the farm in the future, during the life of Larmouth, to his support follows necessarily from the nature and character of the trust impressed upon it by the owner. The charge upon the land is not necessarily measured by the sum which upon the proofs in this case was found to be the annual" value of the net income! It may be more or less, and can be determined only by an accurate account kept of the rental or receipts of the farm, less the necessary expenses incurred. When Gordon conveyed the land to Davis he took from the grantee a bond and mortgage for $400. Both of these instruments contain substantially a recital that they were given as security for the support and maintenance by Davis, his heirs, executors and administrators, of Larmouth during his life, according to the conditions and covenants contained in the deed from Gordon. The interest on this mortgage, amounting to twenty-four dollars, was paid annually by Davis to Gordon, and this seems to be all the income that came to the hands of the trustee. By his act, however, other parties were put in possession of the land, who were permitted by him to appropriate the income to their own use without any attempt on his part, so far as appears, to collect or appropriate it to the purpose contemplated by the trust, and in his answer he denies and repudiates the trust entirely. Having accepted the trust, he could not divest himself of its duties and obligations without the permission of the court Brennan v. Willson, 71 N. Y., 502.

The paper which Gordon executed and recorded was not only a sufficient declaration of the trust within the statute, and an election on his part to assume its duties and obligations, but the deposit of it in the clerk’s office was a sufficient delivery to entitle the plaintiff, as the committee of Barmouth’s person and estate, to claim the benefits of its provisions in his behalf. Davis, upon the execution of the deed by Gordon to him, took possession of the farm, rented the house and a part of the land upon an agreement with the tenant that he should support Larmouth on the premises in conformity, as is alleged, with the agreement between the parties to the deed, but which was not expressed therein. This provision for a person in his condition of mind was not such as was contemplated by the trust for his benefit. Being a person of unsound mind, he conceived himself to be the owner of the farm, and refused to live upon it with Davis, or his tenant, and wandering away was supported mainly by the charity of friends and kindred. This conduct on the part of the beneficiary did not discharge the land from the trust or the trustee from his duties and obligations.

It is now claimed by the defendants that in any event they were ■ not chargeable with the income of the farm during the year following the death of Barmouth’s mother, as he had the benefit of the farm that year. It is a sufficient answer to that point to say that there is no finding in the record upon which to base this con-, tention, nor did the defendants, or either of them, request the trial court to make any finding in regard to the use of the farm during that year. It was not suggested at the trial by any request or exception that the liability of the defendants for the use of the farm during that year stood upon any different ground than their liability for all the years following it. Under these circumstances this court has no right to resort to an examination of the evidence to discover a ground to exempt the defendants from liability for a particular year; and, even if it had, the evidence on that point is conflicting, as Larmouth swore that he had received little or no assistance from the defendants or any one else during that year, and it is conceded that the farm was occupied and worked by others who had the benefit of what it produced. I cannot assent to the construction sought to be put upon the declaration of trust that it binds the trustee and his assigns to support the beneficiary on the farm, and not elsewhere. It plainly provides that the trustee will appropriate, or cause to be appropriated for the benefit of the beneficiary the net rents of the farm during his life and in case of a sale then the interest of the purchase money. This obligation remained always the same whether Larmouth was in the poor house, in an asylum or in charge of his friends and kindred. The refusal of Larmouth to live on the farm with the tenant of Davis furnishes no excuse to the defendants for failing to appropriate the rents for his benefit nor is it any obstacle to the right to maintain this action. The trial court has found upon evidence without conflict that on April 1, 1877, Davis with his tenant Plunkett took possession of the farm, removed Larmouth’s goods and furniture from the house, but the said Davis, through his tenant Plunkett, offered said Ebenezer board and lodging in the family and at the table of said Plunkett on said farm.” To say that the failure of Larmouth to accept this offer discharged the obligations of the defendants to appropriate the rents of the farm for his support and the lien upon the land would be, in my opinion, to place a most unwarrantable construction upon the instrument creating the trust. Moreover, it must be remembered that Larmouth was then a person of unsound mind. On the 28th of February, 1877, and before this offer was made to him by Plunkett, a jury duly summoned to inquire into his condition found that “the said Ebenezer Larmouth is of unsound mind and so far deprived of his reason and understanding as to be altogether unfit and unable to govern himself or to manage his affairs and has been in that state for at least seven years.” On the 20th of March, 1877, this finding was confirmed by the county court. It thus appears that at the very time that Plunkett offered to board him he was prima facie incapable of binding himself by any contract or other act. To hold that the conduct of this beneficiary at the time this offer was made, or at any time within seven years before, is any embarrassment to the right to maintain this action, is to sanction a rule unnecessarily harsh and unjust to an unfortunate person who is entitled to the special protection of the court.

For these reasons I am constrained to dissent from the prevailing opinion and am in favor of affirming the judgment, with costs.

Judgment of general and special terms reversed and new trial granted, costs to abide event.

Andrews, Peckham and Gray, JJ., concur; O’Brien, J., reads for affirmance, with whom Euger, Gh. J., and Finch, J., concur.  