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CA SE S

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF THE STATE OF GEORGIA,

AT MILLEDGEVILLE,

MAY TERM, 18 47.

No. 45-WILLIAM N. KIRKPATRICK, guardian of Mary Ann Shaw,

plaintiff in error vs. John Davidson, JR. defendant in error.

[1.] Trusts in personal property may be created, and if necessary proven by parol

declarations. [2.] A remainder in slaves, to take effect and, be enjoyed after a life estate, cannot be

created by parol in favour of persons not in being at the time the property is delivered to the tenant for life.

Trover. From Jasper Superior Court. Tried before Judge MERRIWETHER. October Term, 1846.

The facts of this case, and the grounds of error, are set forth in the opinion of the Supreme Court, to which the reader is referred.

Dawson & McHenry, for the plaintiff in error.

Cone, for the defendant in error, made the following points :

First. An estate in remainder in chattels cannot be created by parol. 2 Black. Com. 398; 1 Eq. Cas. Abr. 360; 2 Freeman R. 206 ; Gilbert's Uses and Trusts, by Sugden, 121, note 4; 1 Pr. Wms. 1,500,748; 10 John. R. 12; 5 John. Ch, R. 334; 4 Hen. Munf. R. 503; 2 Sergt. & Rawle R. 59; 6 Ib. 29; 2 Munf. 479; 1 Hill R. 196; 2 Kent's Com. 285, 286; 1 Bailey R. 100; 1 Hawks R. 312.

Second. Personal property cannot be secured to the separate use of a married woman by parol, so as to prevent the marital

Kirkpatrick 08. Davidson.

rights of the husband from attaching. Jeremy Eq. 207; 2 Brown Ch. R. 586; 2 Story Eq. Juris. 299; 1 Eq. Cas. Abr. 383; 1 Mylne f. Keene Ch. R. 506, 520; 2 Fonb. Eg. b. 2, ch. 1, sec. 4; 3 John. Ch. R. 488; 1 Ves. Jr. R. 196; Atherly, 149.

Third. Trust estates for the separate use of a married woman, upon her death, the husband surviving, belong to the husband. 2 John. Ch. R. 229; 5 Munf. R. 667; 1 Pr. Wms. R. 378; Clancey on Rights, fc. 11, 12; 2 Brown Ch. R. 587.

By the Court-LUMPKIN, J. delivering the opinion.

This was an action of trover, tried at the October Term, 1846, of the Superior Court of Jasper County. It seems that one Watson Shaw intermarried with Ann Eliza Kirkpatrick, by whom he had issue one child only, Mary Ann Shaw, the plaintiff in the action below. Shortly after the intermarriage, James H. Kirkpatrick, the father of Shaw's wife, placed in the possession of his daughter a negro girl, named Matilda, stating at the time that he gave the slave to Mrs. Shaw, for her sole and separate use, during her lifetime, and then to her children in remainder, or, as one of the witnesses stated at one time, “ then to the heirs of her body;" which words the donor used, as he understood, as synonymous with children. Watson Shaw admitted repeatedly in conversation, that Matilda was given to his wife by her father, to be her property during her natural life, and then to her children. And at one time he wrote a letter to his father-in-law, suggesting the propriety of selling the woman, and her child Anderson, the subject of the present suit, and putting out the proceeds at interest for Mary Amn, his grand-child, when she should become of age. This communication being lost or mislaid, its contents were proven. It was in evidence that Watson Shaw wrote another letter to James H. Kirkpatrick, complaining that it was hard that these slaves should belong to his daughter, and requesting the said James H. to convey to him a portion of the property, provided it was in his power to do so. Kirkpatrick, in his reply, stated that it was not practicable for him to comply with his request, on account of the disposition already made of the negroes. It was in testimony that Mrs. Eliza Ann Shaw was dead, and that Mary Ann was her sole surviving offspring, who, by her guardian, William N. Kirkpatrick, brought this action of trover, to recover Anderson, the son of the woman given in trust to her mother. The defendant, by his plea,

Kirkpatrick os. Davidson.

disclaimed any property in the boy, and stated that he held possession of him under a contract of hiring for the year, from Watson Shaw. So that in fact the contest is one between father and daughter.

Several questions arose during the progress of the trial, two of which only need be discussed now. One is, can a trust in personal property be not only created, but, if necessary, proven by parol declaration ? From the transcript of the record, it does not appear that this point was expressly adjudicated by the presiding judge, although fully made and presented by the pleadings. The other is, could a remainder in slaves have been created by verbal gift, made at the time of delivery of Matilda to Watson Shaw, to the children of Mrs. Shaw then unborn ? Judge Merriwether held that such remainder was void.

Before the Statute of Frauds, a valid trust, either of real (1.) or personal estate, might have been created by parol declaration, if not in all cases, at any rate whenever a deed was not requisite at law for passing the estate or property itself. Hill on Trustees, 56.

The 7th section of the Statute, 29 Car. II, c. 3, enacts, “ that all declarations or creations of trusts, or confidences of any lands, tenements, or hereditaments, shall be manifested or proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else shall be void." The 8th section exempts from the operation of the act, trusts arising or resulting by the implication or construction of law. Ibid.

It will be observed that the 7th section merely requires that the trust should be manifested and proved by writing; and upon the construction put upon these words, it has been decided that a trust of land may still be effectually created by parol, and, in order to satisfy the statute, it will be sufficient to show, by written evidence, the existence of the trust. Forster vs. Hale, 3 Ves. Jr. 707; 5 Ves. Jr. 308; Randall vs. Morgan, 12 Ves. Jr. 74.

Before the Statute of Frauds, unwritten contracts respecting land, were enforced both in law and equity; and, after the passage of the law, contracts made before were subsequently enforced. 2 Shower, 17; 2 Hayw. 131; 4 Johns. R. 434, 496.

The 7th section, then, of the Statute of Frauds, applying only to “lands, tenements, and hereditaments,” it is clear that the law, as it affects chattels personal, remains unaltered; and a valid trust of such property may not only still be created, but, if necessary, tablished and proved by mere parol declaration. Hill on Trust

Kirkpatrick os. Davidson.

It is true, and remarkable that it is true, that but little is to be met with in the books upon this subject. And while Mr. Perkins, the Editor of Brown's Chancery Reports, subscribes to the foregoing conclusion respecting the operation of the statute, nevertheless he says, that in the course of his reading he does not recollect to have found an instance of a declaration of trust of personal property, evidenced by parol only, having been carried into execution. The case of Nab vs. Nab, 10 Mod. R. 404, which is usually cited in support of the proposition, as in Saunders on Uses, 251, and Roberts on Frauds, 94, he considers as merely a dictum of Lord Macclesfield, the trust having been established as the admission in the answer.

With great deference to the laborious editor, I would venture to suggest that there are many reported cases, both in England and in this country, where the doctrine, as laid down by Hill, is directly asserted and approved by the courts.

In Benbow vs. Townsend, 1 Mylne & Keene, R. 506, (7 Cond. Eng. Ck. R. 143,) Sir John Leach the master of the Rolls, says : "But in this case the trust (which was of money

due

upon mortgage) being of personal estate, the case is not within the Statute of Frauds. But the property will belong to the brother after the death of the testator, by force of his declarations, that the £2,000 should after his own death be the property of his brother Job.”

In Bayley vs. Boulcott, 4 Russ. R. 345, (3 Cond. Eng. Ch. R. 698,) counsel on both sides conceded, that a trust in personal property may be created by parol declarations, and the only question in that case was, whether the declarations did in fact create a trust. And the master of the Rolls says, “It is true that with respect to personal property, a declaration of trust may be by parol, and that a written instrument is not necessary for that purpose. McFadden vs. Jenkins, 1 Hare, 461, S. C. Phill. 1537, are to the same effect.

In North Carolina it has been held, that a parol declaration of trust is valid. Foy vs. Foy, 2 Hayw. R. 131.

In Taylor and wife vs. Mayrant and others, 4 Desaus. 505, the court supported a trust of personal estate raised on parol proof.

In Fleming vs. Donahoe, 5 Ham. R. 256. The Supreme Court of Ohio say, "No rule of the common law prohibited the creation of a trust by parol; such a trust was not considered as varying the terms of the deed, but as setting up an independent contract consistent with it."

In Rutledge's Adm'r. vs. Smith's Ex'r. 1 McCord Ch. R. 119, the

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