Mory v. Michael

Cochran, I., delivered the opinion of this court. The questions in this case arise upon a demurrer to the bill of complaint filed by the appellants, claiming under the will of Catharine Michael, deceased. The bill was filed to recover from the appellee the sum of $>4250, and interest due thereon, from the 4th of February 1854, to the 28th of February 1858, which it alleges he received from Catharine Michael under an ante-nuptial contract, dated the 4th of March 1850, subject to a power of appointment by her will, and to which the appellants are entitled under her will, as a valid execution of that power. The substance of the bill, the ante-nuptial contract and will, are set forth in the statement of this case, (ante 228 to 231.) The demurrer presents two grounds of objection to granting the relief prayed: 1st.

That the will does not operate as a valid execution, of the power contained in the contract. ²⁴⁰ 2nd. That there is no jurisdiction in equity over the subject matter of the bill. The determination of these questions depends upon the construction to be given to the contract and will, under which the appellants claim, and' these will be first considered with reference to the question of jurisdiction. By reference to the contract it appears, that the personal estate of the testatrix, consisting of money, dioses in action, book accounts and other personal property,- was assumed to be of the v'alue of §4250, and that, between the parties to the contract, it was considered, dealt with, and assigned to the appellee, as money to that amount, and that in consideration thereof, the appellee bound himself to pay to the testatrix annually, during her life, interest on said sum for her sole and separate use, free from his marital rights, and covenanted that she should have full liberty to devise and bequeath said sum of §4250, and any interest that might be due thereon, by will or codicil, as if she were a femB sole, and in default of any appointment by her, by will or codicil, that he would pay the same to any child or children she might leave.

The effect of this contract was to divest the testatrix of the title to the property assigned, and to secure payment of the annual interest thereon to herself during life,- for her sole and separate use, with a ¡lower of appointment by will or codicil, and in default of such an appointment, to secure'payment of the principal sum and unpaid interest to any child or children she might leave. The appellee took the legal title to the property under the contract, with limitations against any beneficial use or interest in himself, and a determination of the character of his relation to it, will decide the question of jurisdiction presented by the demurrer. Although the contract in some respects is inartificially drawn, it is clear that the intent of the parties to it. was, to fix upon the appellee a fiduciary possession of the fund assigned, and create a trust by which the purpose of the testatrix, as to its beneficial use and ultimate destination, would be accomplished. 'The creation of a trust depends upon intention, and ²⁴¹