§ 104. But if the voluntary trust is once perfectly created, and the relation of trustee and cestui que trust is once established, it will be enforced, though the settlor has destroyed the deed,1 or has attempted to revoke it by making a second voluntary settlement of the same property,2 or if the estate,

1 Tolar v. Tolar, 1 Dev. Eq. 456; Dawson v. Dawson, ib. 93, 396; In re Way's Trust, 10 Jur. 837; 2 De G., J. & Sm. 365; Ritter's App. 59 Pa. St. 9.

2 Newton v. Askew, 11 Beav. 145; Rycroft v. Christy, 3 Beav. 238; Boughton v. Boughton, 1 Atk. 625; Brackenbury v. Brackenbury, 2 J. & W. 391; Clavering v. Clavering, 2 Vern. 473; Roberts v. Roberts, Daniel, 143; Cook v. Fountain, 3 Swans. 565; Young v. Peachy, 2 Atk. 254; Cecil v. Butcher, 2 J. & W. 565; Souverbye v. Arden, 1 Johns. Ch. 240; Kekewich v. Manning, 1 De G., M. & G. 176; In re Way's Trust, 2 De G., J. & S. 365; Hildreth v. Eliot, 8 Pick. 293; Stone v. Hackett, 12 Gray, 227; Falk v. Turner, 101 Mass. 494; Bunn v. Winthrop, 1 Johns. Ch. 329; Dennison v. Goehring, 7 Barr, 175; Viney v. Abbott, 109 Mass. 302; Sewall v. Roberts, 115 Mass. 272; Meigs v. Meigs, 22 Hun (N. Y.), 453. It must be observed, however, that the absence of a power to revoke a voluntary settlement or trust is viewed by courts of equity as a circumstance of suspicion, and very slight evidence of mistake, misapprehension, or misunderstanding on the part of the settlor will be laid hold of to set aside the deed. The following opinion by the Chancellor (Runyon) in a late case in New Jersey, Garnsey v. Mundy, 24 N. J. Eq. 243, reprinted in 13 Am. Law Reg. (N. s.) 345, with a learned note by Mr. Bispham, gives a very clear view of the law applicable to voluntary settlements without a power of revocation made under circumstances which may lead to the conclusion that the settlor did not intend to put the property entirely beyond his control, or that he acted unadvisedly or improvidently:

"On the 4th of July, 1861, the complainant, Sarah M. Garnsey, who was then a single woman (her maiden name being Sarah M. Mundy), and of the age of about twenty-one years, was seized in her own right, in fee, in possession, through inheritance from her father, James Mundy, deceased, of a parcel of unimproved farming land of about seven acres in Middlesex County in this State, and was also the owner of an undivided third of the remainder, in fee, of two other lots there, -one a wood-lot of about two acres, and the other the house-lot, containing about nine and a half acres, which had been set off to her mother, Elizabeth Mundy, in dower. She had no other property, real or personal. By a deed of that date she conveyed in fee to her mother, for the expressed consideration of natural love and affection to the grantor's daughter, Elmina May, and of fifty cents to her paid by her mother, the whole of said property on the following trust: That the said Elizabeth Mundy shall and will hold, use, occupy, and rent the

by some accident, afterwards becomes revested in the settlor.1 In all these cases the first perfectly created trust will be up

same, and receive the rents, issues, and profits thereof to and for the maintenance of said Elmina May Mundy until she shall arrive at the age of twenty-one years, or in case of her death, the said Elizabeth Mundy, her heirs or assigns, shall pay the rents or profits arising as above to the said Sarah M. Mundy, and in further trust to convey the land and premises with the appurtenances hereinbefore mentioned, in fee-simple, to the said Elmina May Mundy, or in equal shares to her and any other children of said Sarah M. Mundy (should there be any other), when the youngest of said children shall have attained the age of twenty-one years; and in the event that no issue of the said Sarah M. Mundy shall survive to inherit the same, that the estate herein named, shall be conveyed according to the direction of the executor of the will of the said Sarah M. Mundy heretofore made.'

"In 1864 Sarah M. Mundy was married to Silas Garnsey. The bill is filed by her and her husband against her two children and her mother, the trustee, to set aside the deed. The property at the time of making the conveyance in question was and still is of but little value as farming land. The buildings upon the house-lot, which alone was improved, were old and dilapidated and have gone to decay, and even the fences on the premises are down. The trustee, who is a woman of advanced age, was and is wholly without means, except her dower. The deed is voluntary. It was made at the suggestion and on the advice of the grantor's mother, and of her uncle, Dr. Jacob Martin, her mother's brother. The grantor neither proposed nor suggested it. Indeed, it appears she knew nothing of it until it was presented to her for her signature, and she was urged by her mother and her uncle to execute it, for her good.' Their motive, they say, was to save the property for her, to prevent her from improvidently disposing of it. No professional advice whatever was taken. The deed was drawn by a son of Dr. Martin, at the latter's direction; and its execution was witnessed by Dr. Martin, who, being a commissioner of deeds, took the grantor's acknowledgment. The grantor had no advice whatever, except that which her mother and uncle gave her. Not only was she not consulted in regard to the matter in any way, but it was clear that she did not understand the provisions of the deed, nor their

1 Ellison v. Ellison, 6 Ves. 656; Smith v. Lyne, 2 Y. & Col. 345; Paterson v. Murphy, 11 Hare, 88; Gilchrist v. Stevenson, 9 Barb. 9; Uzzle v. Wood, 1 Jones, Eq. 226; Browne v. Cavendish, 1 J. & L. 637. See also Aylsworth v. Whitcomb, 13 R. I. 298, where it is said, if deliberate intent to make it irrevocable does not appear, the absence of power of revocation will be prima facie evidence of mistake. Estes v. Tillinghast, 4 R. I. 276; Russell's App. 75 Pa. St. 269.

held, with all its consequences, and the settlor will be declared to be a trustee.1 It can only be revoked by the full consent

effect.

She did not suppose that the effect of the conveyance would be to place the property beyond her reach and control. Nay, her mother and uncle both supposed that the trust was revocable, and that the grantor under it retained full power to sell the property, with the trustee's consent. The conveyance not only deprived the grantor of all her property, without reserving a power of revocation to enable her to meet the exigencies of life, but the arrangement which it made was in other respects injudicious, disadvantageous, and improvident. The motives and intentions of the mother and uncle were most praiseworthy. Their design manifestly was simply to put the property in such a position that the grantor could not dispose of it without her mother's consent and concurrence. They in good faith urged her to make the deed. She and they were alike under an erroneous impression as to the effect of it. From the operation of such a conveyance, made under such circumstances, equity will relieve the complainants. The rigidity of the ancient doctrine, that a voluntary settlement, not obtained by fraud, is binding on the settlor, and will not be set aside in equity, although the settlor has not reserved a power of revocation (Villers v. Beaumont, 1 Vernon, 100; Petre v. Espinasse, 2 M. & K. 496; Bill v. Cureton, 2 M. & K. 503), has been relaxed by modern decisions. In the case first cited, Villers v. Beaumont, decided in 1682, the Lord Chancellor said: '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 on himself, but he must lie down under his own folly.' Recent cases, however, have narrowed the doctrine, and have held, not only that the absence of a power of revocation throws on the person seeking to uphold the settlement the burden of proving that such a power was intentionally excluded by the settlor, and that, in the absence of such proof, the settlement may be set aside, but that equity will set aside the settlement on the application of the settlor, when it appears that he did not intend to make it irrevocable, or when the settlement would be unreasonable or improvident for the lack of a provision for revocation. In Everitt v. Everitt (1870), L. R. 10 Eq. 405, -a case almost precisely similar in its facts to that under consideration, a voluntary settlement was set aside on the application of the donor. The court said: It is very difficult indeed for any voluntary settlement, made by a young lady so soon after she attained twenty-one, to stand, if she afterwards changes her mind and wishes to get rid of the fetters which she has been advised to put upon herself.'

“In Wollaston v. Tribe (1869), L. R. 9 Eq. 44, a voluntary gift, which

1 Ellison v. Ellison, 6 Ves. 656; Smith v. Lyne, 2 Y. & Col. 345; Paterson v. Murphy, 11 Hare, S8; Gilchrist v. Stevenson, 9 Barb. 9.

of all parties in interest; if any of the parties are not in being, or are not sui juris, it cannot be revoked at all.1 But

6

was not subject to a power of revocation, but was meant to be irrevocable, was held to be invalid, and was set aside on the donor's application. In pronouncing the decree, the court said: 'Of course, a voluntary gift is perfectly good, if the person who makes it knows what it is, and intended to carry it into execution.' In Coutts v. Acworth, L. R. 8 Eq. 558, it was held that Where the circumstances are such that the donor in a voluntary settlement or gift ought to be advised to retain a power of revocation, it is the duty of the solicitor to insist on the insertion of such power, and the want of it will in general be fatal to the deed.' In Prideaux v. Lonsdale (1863), 1 De G., J. & S. 433, a voluntary settlement, which the settlor was advised to execute by persons under whose influence, as regarded money matters, she was, and which subjected her property to trusts and contained provisions which the court thought it was impossible to suppose she understood, and against which she ought to have been advised and cautioned, was set aside. In Hall v. Hall, L. R. 14 Eq. 365, it was held that a voluntary settlement should contain a power of revocation; and, if it does not, the parties who rely on it must prove that the settlor was properly advised when he executed it, and that he thoroughly understood the effect of omitting the power, and that he intended it to be excluded from the settlement, and, further, if that is not established, and the court sees from the surrounding circumstances that the settlor believed the instrument to be revocable, it will, even after the lapse of twenty years and the death of the settlor, interfere and give relief against it. The decree in that case was reversed. (1873, L. R. 8 Chan. Ap. 430.) In his opinion, Selborne, L. C., said: "The absence of a power of revocation in a voluntary deed, not impeached on the ground of any undue influence, is of course material, where it appears that the settlor did not intend to make an irrevocable settlement, or where the settlement itself is of such a nature, or was made under such circumstances, as to be unreasonable and improvident, unless guarded by a power of revocation.' Forshaw v. Welsby, 30 Beav. 243, was a case where a voluntary settlement was made by one, in extremis, on his family. It contained no power of revocation in case of the settlor's recovery. On his recovery it was set aside on his application, on the ground that it was not executed with the intention that it should be operative in case of his recovery from his illness. See also Huguenin v. Baseley, Lead. Cas. in Eq. 406; Cook v. Lamotte, 15 Beav. 241; Sharp v. Leach, 31 Beav. 491; Phillipson v. Kerry, 32 Beav. 628. It is not necessary, however, to rest a decision of this case adverse to the deed, on so narrow a foundation as the mere absence of a

1 Shaw v. Delaware, &c. R. R. Co. 3 Stockt. 229.

if the voluntary settlement be subject to a life-estate in the settlor, and also subject to such debts as he contracts during his life, he can defeat the trust by contracting debts to the full amount of the estate, even if the debts are contracted by giving voluntary bonds for the purpose of defeating the settlement.2 If, however, the settlor has not reserved the right to revoke the settlement, or to charge it with his debts, he can do nothing to impair the rights of those in remainder.3

power of revocation. The circumstances under which a voluntary deed was executed may be shown, with a view of impeaching its validity, and, if it appears that it was fraudulent, or improperly obtained, equity will decree that it be given up and cancelled. In the present case there is no room for doubt that the grantor was induced, by those in whom she very justly placed confidence, and by whose better judgment she was willing to be guided, to execute a voluntary deed whose effect she and they not only did not understand, but, on the other hand, misapprehended; and which, so far from being according to their intentions, was in two very important respects, at least, admittedly precisely the reverse. It was irrevocable; but they all supposed it was revocable, and intended that it should be so. It deprived the grantor of the power of sale; but they all supposed that she would have that power, and intended that she should have it, clogged only by the necessity of obtaining her mother's consent and concurrence in any bargain or conveyance she might make. The deed contains no power of sale whatever. The testimony of all the parties to the transaction the grantor, her mother and uncle - has been taken in the cause. It satisfies me that the deed was not the pure, voluntary, well-understood act of the grantor's mind' (Lord Eldon in Huguenin v. Baseley), but was unadvised and improvident, and contrary to the intention of all of them. The fact that the infant children of the grantor are beneficiaries under the deed will not prevent the court from setting it aside. Huguenin v. Baseley; Everitt v. Everitt, ubi sup. There will be a decree that the deed be delivered up to be cancelled." See also Rhodes v. Bates, L. R. 1 Ch. 252; Leach v. Farr, 13 Am. Law Reg. 350 (N. s.); Villers v. Beaumont, 1 Vern. 99; Bridgman v. Greene, 2 Ves. 627; Petre v. Espinasse, 2 M. & K. 496; Bill v. Cureton, ib. 511; Hastings v. Ord, 11 Sim. 205; Coutts v. Acworth, L. R. 8 Eq. 538; Phillips v. Mullings, L. R. 7 Ch. 244; Hall v. Hall, L. R. 8 Ch. 430; Toker v. Toker, 3 De G., J. & S. 487; Evans v. Russell, 31 Leg. Int. 125.

1 Markwell v. Markwell, 34 Beav. 12.

2 Ibid.

3 Aubuchon v. Bender, 44 Mo. 560; Dean v. Adler, 30 Md. 147; Hall v. Hall, L. R. 14 Eq. 365; Beal v. Warren, 2 Gray, 447.