
    Charles T. Hildreth et ux. versus Ephraim L. Eliot et al.
    
    A voluntary settlement fairly made and without a power of revocation reserved in the deed of settlement, cannot be set aside upon the application of the settler.
    A feme sole, about to be married, conveys real and personal estate to her father, his heirs and assigns, to be held in trust by him, and by any other trustee to be appointed by the judge of probate, for her separate use, without being liable to the debts or cora'rol.of any husband she may have during the trust; the income to be paid her during her life, and the residue and remainder to be conveyed to such child or children, his or their heirs and assigns, as she shall leave. She marries, and her husband dying, she takes a second husband, by whom she has i««ue living. Her father dies leaving several children. The judge of probate refuses to appoint a new trustee. Upon a bill in equity by the husband ami u ife to set aside the settlement, it was held, that the trust estate did not merge in the legal, the equitable estate being only for her life, and she having the legal estate in a portion only of the property as tenant in common with the other children of the trustee ; and it was decreed that a new trustee should be appointed.
    Bill In equity. The plaintiffs allege, that by indentures doled ¡September 30, 1817, between Elizabeth F. Hildreth, one of the plaintiffs, then sole, of the one part, and her father, Ephraim Eliot, now deceased, of the other part, it was recited, that she was the owner of certain real and personal estate and was desirous of securing the same, in the event of her marriage (which, as the plaintiffs aver, was then about to take place and afterward did take place with Daniel Dunton, who has since died), to her sole use and benefit: That for that purpose it was agreed, that the property “ should be, and the same was thereby, granted unto said Ephraim to be held in trust by him, his heirs and assigns forever, for the separate use and benefit of -«id Elizabeth and her heirs, notwithstanding the coverture ; that is to say, that the same should be so held by said Ephraim and by any other trustee who might be appointed in the manner therein provided, without being liable to the debts, incumbrances or control of any husband she might have during the" existence of the trust; with powers of leasing and investing, &c. and that he should pay over all rents and income and also such portion of the principal as he, said Ephraim, should judge necessary for her convenience and support, unto said Elizabeth or to such person as she should in writing, without the intervention of any husband, appoint, for and during her natural life, that is to say, during the term for which said trust should continue, &c. ; and after the decease of said Elizabeth, the residue and remainder &c. to convey unto such child or children, his and their heirs and assigns forever, as she should leave ; and happening the death of said Ephraim, his heirs &c. should as soon as practicable make conveyances to transfer the real and personal estate unto such person as should be appointed trustee by the judge of probate for Suffolk county for the time being who was in that event authorized by the indentures to make the appointment : That Ephraim, the trustee, took possession of the property and continued to manage the same until his death : That after the death of Dunton, the plaintiffs intermarried, viz. on August 4, 1824, and have issue, one son : That Ephraim, the trustee, died and left nine children, who are the plaintiff Elizabeth, and the defendants : That he made a will and appointed Ephraim L. executor, who, as well as the other defendants, declines making an assignment of the trust property until a trustee shall be appointed, and that notwithstanding the power given by the indenture to the judge of probate to nominate a trustee, he has declined so to do : That the indentures were executed at th ¡ instance and intreaty of Ephraim the trustee, to guard against Dunton’s intermeddling with or wasting the property, and that all the purposes for which the trust was created have been satisfied, and that the trust ought to be revoked and the property ought to be restored to Elizabeth in her absolute right, to be held by her and her heirs.
    The bill prays that the defendants may be decreed to convey and deliver over the property to Elizabeth ; or if the trust ought to be continued during her natural life, it asks for the appointment of a trustee.
    The defendants, in their answer, state, that soon after the death of Ephraim the trustee, the executor presented a petition to the judge of probate, praying him to appoint a new trustee, in pursuance of the provisions of the indenture, but that the judge refused, on the ground that he had no jurisdiction in the matter. They insist that the trust is to continue during the natural life of Elizabeth, and they say that it is expressly provided in the indenture, that any trustee who shall be appointed, shall give bonds with sufficient sureties to the judge of probate for the faithful execution of the trust. They offer to convey and pay over the trust property, and they pray the Court to preserve the trust, and to appoint a new trustee, and to order that he give bonds in the mode provided in the indenturs.
    Jlylwin, for the plaintiffs,
    said the object of the trust was to secure the property from being wasted by the first husband ; that a new trustee would be obliged to give bonds, and would demand a compensation for his services ; and he contended, that as the legal interest in one ninth part of the estate had descended to the cestui que trust, the equitable title was merged in the legal. Wade v. Paget, 1 Bro. C. C. 363; Goodwright v. Wells, 2 Doug. 771. The Court will set aside a voluntary settlement, upon the application of the party by whom it was made. Ward v. Lant, Pree, in Ch. 182; Ellison v. Ellison, 6 Ves. 662; Colman v. Sarrell, 1 Ves. jun. 50; Otley v. Manning, 9 East, 59. The Court will not intern re to support a trust, the object of which has failed. Croft v. Slee, 4 Ves. 65; Bold v. Corbett, Free, in Ch. 84. The trust was temporary and confidential, as appears by the provision that Ephraim Eliot should at his discretion pay over a portion of the principal. Since the trust cannot be carried into effect in the manner intended by the cestui que trust, the judge of probate refusing to appoint a trustee, the Court will not deny her the control over her own property.
    
      June 24th. 1828
    
    
      Minot, contra,
    
    referred, on the question of merger, to a Bl. Com. 172, Christian’s note ; Silvester v. Wilson, 2 T. R. 444; 1 Eq. Ca. Abr. 382; and to show that the Court will not set aside a voluntary settlement, unless it was fraudulert or to the injury of creditors, Cruise, tit. 32, Deed, c. 22, § 45; 1 Mad. Ch. Pr. (1st ed.) 222; Tillers v. Beaumont, Vern. 100; Boughton v. Boughton, 1 Atk. 625; Atberley’s Law of Marriage, 94, 127.
    At this term the opinion of the Court was delivered by
   Wilde J.

The principal question raised by the bill and ' answer is, whether a voluntary settlement fairly made, and without power of revocation reserved in the deed of settlement, can be set aside by the settler, or by a court of equity on ^*s application.

The affirmative is maintained in Lord Ormond’s case, cited in 1 Vern. 101, but all the subsequent authorities are the other way. In the case of Villers v. Beaumont et al. 1 Vern. 100, the chancellor says, “ If a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, this court will not loose the fetters he hath put upon himself, but he must lie down under his own folly; for if you would relieve in such a case, you must consequently establish the proposition, viz. that a man can make no voluntary disposition of his estate, but by his will only, which would be absurd.” In the case of Boughton v. Boughton, l Atk. 625, the same doctrine is laid down So also in the case of Clavering v. Clavering, 2 Vern. 475; where it was said, that if a prior deed could be discharged because voluntary, by a subsequent deed voluntary also, then there would not be any necessity of inserting powers of revocation, according to the established mode of conveyancing.

In the case of Worrall v. Jacob, 3 Meriv. 270, where the cases are reviewed, it was decided, that a voluntary deed or settlement, once perfected, could not be revoked at pleasure, even though the maker had retained it in his own possession. And the same decision was made in the case of Clavering v. Clavering, before cited, and in the case of Brookbank v. Brookbank, 1 Eq. Ca. Abr. 168 ; and the same doctrine has been frequently recognised in other cases. And Sir Joseph Tekyl was so cl ?or in the opinion, that a voluntary deed once perfected could not be revoked at pleasure, that he established the copy or counterpart of the first deed, though the original had been destroyed by the maker.

Indeed courts have gone so far as to refuse to relieve against a voluntary settlement, under such strong circumstances as where the settlement was made upon a mere stranger and the settler afterwards married and had children, and' thereupon made a new settlement on himself, his wife and their issue. Allen v. Arme, 1 Vern. 365; Myddleton v. Kenyon, 2 Ves. jun. 391.

The cases cited by the plaintiffs’ counsel are not incónsist

ent with these decisions, and fail entirely to maintain the principle they contend for. All those cases refer to voluntary covenants or agreements, and not to settlements actually made; or to cases where settlements had been left incomplete, so as not to be binding in law. In all such cases courts of equity refuse to interferí and grant relief to mere volunteers. So courts of equity will set aside voluntary settlements, where any undue influence has been used ; and such influence may be presumed from the subsisting relation between the parties ; as in case of a voluntary settlement or gift by a ward in favor of his guardian, or by a child in favor of his parent But in the latter case a settlement is not to be set aside, merely from the circumstance that it was made under parental influence. To authorize a court of equity thus to interfere, something unfair or unreasonable must be made to appear, in the terms and effects of the settlement. Thus if a child, possessed of an estate in fee, should, by the persuasion and influence of his father, make a settlement reducing himself to a mere tenant for life, with remainder to his children, the settlement would be valid. Atherley’s Law of Marriage, 363. In Brown v. Carter, 5 Ves. 862, Lord Moanley asks, “ What is there unreasonable in the settler tying himself up to an estate for life, and leaving it to his children ? Perhaps,” he adds, “ under the circumstances of the case it would be better for him

In the case under consideration, there is certainly no color for the suggestion, that any undue influence was used by the father. No benefit was secured to him. The settlement was a reasonable and prudent provision for the security of the daughter and her children ; and in urging the measure, the father only performed his duty as a careful and provident parent.

We are therefore of opinion, that the settlement is valid, and that on no principle are we authorized to set it aside.

As to the supposed merger of the equitable estate in the legal, we think it cannot be maintained by the facts admitted.

By the terms of the indenture, the wife has only an estate for life in the equity; the legal estate vested in the trustee, and was intended to be preserved during the life of the wife, for the benefit of her children. Besides, she has only a poi t'on ^le leSal estate in common with the defendants, so that her legal and equitable estates are not commensurate and cannot coalesce. But if there were a merger of the equitable in the legal estate, then the aid of this Courf as a court of equity would not be necessary, and the '. al should be dismissed.

Thinking, however, as we do, that there is no merger of the equitable interest, we are bound to preserve the trust for the benefit of the children ; and for that purpose a new trustee must be appointed, to whom a conveyance of the trust property will be decreed according to the prayer of the bill. And that part of the bill which prays for the setting aside of the settlement is dismissed.  