Byrne v. Gunning

Bryan, J., delivered the opinion of the Court. James Cunning filed a bill in equity in the Circuit Court for Alleghany County for the purpose of setting aside a certain deed which he had made to his three sons, James H., Joseph M., and John B. Cunning. The bill alleged that the deed did not conform to the directions given by the grantor for the drafting of it, and that it has an effect which he never intended, and that it was executed by him in its present form wholly by mistake. The defendants were the grantees and the other children of the grantor, and the husband of one of his daughters, and the children of a deceased son, and their mother, and two other beneficiaries under the deed.

After answers and testimony,-the Court passed a decree annulling the deed, and containing certain other provisions which will hereafter be noticed. Before considering the testimony we will examine the deed and see what is its effect. It conveys all the prop ³² erty of the grantor to three of his sons on certain trusts. It recites that he had purchased for the sum of ten thousand dollars a tract of land, known as “Gunning’s Delight” or “Barkdoll’s Farm,” and that the deed was made to Martin Byrne and Mary, his wife, the said Mary being a daughter of James Gunning; and that they had executed a mortgage on the tract for ten thousand dollars in favor of the said James Gunning; and that it was his intention that they should convey the said tract to the trustees named in the deed; and that the trustees should release the mortgage; and that until Byrne and wife should make the conveyance of the tract, they should not receive any benefit from the deed to the trustees.

The trusts are declared in these words: “In trust, however, for the purposes herein stated, said James H. Gunning, Joseph M. Gunning and John B. Gunning, their heirs, executors, administrators and assigns, and shall have full control and power over the things herein conveyed to them, and said “Gunning’s Delight” if conveyed to them, as fully and absolutely and to all intents and purposes as if this conveyance was made to them free from any trust or trusts of any kind whatever; said James H. Gunning and Joseph M. Gunning and John B. Gunning, their heirs, executors, administrators and assigns, shall have full power to sell, convey, dispose of, of all things herein conveyed to them, and said “Gunning’s Delight” if conveyed to them, except said Gunning’s Delight, shall not be sold until after the death of said James Gunning, and purchasers shall not be held to look to the application of any purchase money, and said James H. Gunning and Joseph M. Gunning and John B. Gunning, their heirs, executors, administrators and assigns, shall in nowise, or in no case be required to give, or furnish bond or security for the performance of their duties as said trustees; said James Gunning shall have the net profits arising from all the things herein ³³ conveyed to said James H. Gunning, Joseph M. Gunning and John B. Gunning; and if said “Gunning’s Delight” shall he conveyed to said James H. Gunning, Joseph M. Gunning and John B. Gunning for and during the period of his natural life, to cease and determine upon the death of said James Gunning, said James Gunning shall pay all taxes and assessments,- and keep down all encumbrances upon the things herein conveyed, and upon said Gunning’s Delight, if' said Mary E. Byrne and Martin D. Byrne, her husband, convey said “Gunning’s Delight” to said James H. Gunning, Joseph M. Gunning and John B. Gunning, their heirs and assigns forever, and said James Gunning shall have full right to use and occupy for and during the term of his natural life, all the real estate herein conveyed, and the net profits and income arising on the personal property herein conveyed to said James H. Gunning, Joseph M. Gunning and John B. Gunning, their heirs, executors, administrators and assigns, to cease and determine upon the death of the said J ames Gunning. The object and intention of the parties hereto is that said James Gunning shall have an interest for life in the benefits arising from the trust by their instrument created upon the death of said James Gunning; and if said Mary E. Byrne and Martin D. Byrne, her husband, - shall have conveyed “ Gunning’s Delight ” to said James H. Gunning, Joseph M. Gunning and John B. Gunning, their heirs and assigns forever, then in that case said J ames H. Gun-ping, Joseph M. Gunning and John B. Gunning shall divide said things herein conveyed to said James H. Gunning, Joseph M. Gunning and John B. Gunning, and said “ Gunning’s. Delight ” or the proceeds of the sale of any of the things herein conveyed, and said “Gunning’s Delight;” and after certain deductions and payments provision is made for conveying a seventh part to each of the six surviving children of the grantor, and ³⁴ a seventh part to the widow of a deceased son for the benefit of his children; and if Martin Byrne and his wife should fail to convey “Gunning's Delight” to the trustees, the division of the property is to be made into six parts, and they are to be excluded from all participation in it. The language in whjch the trust is described is a good deal involved and somewhat obscure, and the punctuation in some instances adds to the obscurity.

The general intention, however, appears to be plain enough. The grantor wished to have the benefit of his property for life, and after his death he wished it to be divided among his children, and his grandchildren who were the children of a deceased son. In express words it is stated that he is to pay all taxes and assessments, and to keep down all encumbrances on the property, and that he is to have full right to use and occupy the real estate during the term of his natural life, and that he is to have the net profits and income arising from the personal property. It had been previously stated in the deed that he was to have the net profits for life from all the property.

And as if to put the matter beyond all doubt, it is again stated that it was the object and intention of the parties to the deed that the grantor should “have an interest for life in the benefits arising from the trust. ” In a previous portion of the declaration of trust, it is stated that the grantees should