Swan ex rel. Swan v. Frick

Robinson, J., delivered the opinion of the Court. Ko question can arise, we think, in regard to the period of time fixed for the termination of the trusts created under the will of the late Robert Swan. The testator expressly declares “that at the arrival of all my sons to the age of twenty-one, then all the trusts, charges, and all the rights and powers of said trustees, and the trust and charge aforesaid for the support of my said wife shall cease and determine,” and there is nothing to be found in the will either precedent or subsequent to this provision, from which it can be inferred that the testator intended under any circumstances that the trusts should continue beyond the period thus specifically designated. The purchase by James Swan of the real estate mentioned in the proceedings was subsequent to this time, that is after the arrival at the age of twenty-one years of the three sons of Robert; and it cannot, therefore, be assailed on the ground of any supposed relation of trustee and cestui que trust.

This view makes it unnecessary to decide, whether the complainants are precluded from relying on this objection, by the decree of the Circuit Court of Allegany County, under which the property was sold. But it was also urged, that there was a plain declaration of a trust at the time of the purchase, and confirmed afterwards by John Swan, one of the defendants, the son and agent of James Swan. The only evidence in support of this alleged trust is to be found in a letter from John Swan to his cousin, Robert, dated the 29th of April, 1856, in which he says: “At the pressing instance of the creditors of John, Charles and yourself’ Judge Perry was forced to offer at public sale, ¹⁴² all the property of your father’s estate to satisfy the claims against it. In order to know what residue of property the above parties had thus purchased, I was present to represent my father, and then, for the first time, heard of the sheriff’s proceeding against your interest.

Before going, however, I saw Mr. William Price, as guardian of Willie, and informed him that it was not my intention to purchase a foot of the property, unless I saw it about to be knocked off for a very song, in which case only, I would purchase ; and that whenever he could effect a sale, or I could effect one, at proper prices, all excess should go to the rightful owners, as I did not desire or intend to speculate upon my own connections, and that, therefore, in buying I was really rendering a service, by keeping the property for them, rather than suffering strangers to wrest it from them.” These assurances, we are told, were calculated to mislead. Mr. Price, the guardian of Willie, and to prevent steps from being taken to guard against the sacrifice of the property. How far a trust might be sustained as against John Swan on the ground of fraud, if it appears that relying on his promises the complainants, or their agent, had