Thompson v. Ballard

Bryan, J., delivered the opinion of the Court. Robert E. Thompson and Annie his wife, in-October, eighteen hundred and seventy-five, conveyed certain real and leasehold estate to George E. Ballard. . The property was'conveyed in trust for purposes specifically set forth in the deed. At the time of the conveyance the leasehold estate was subject to a mortgage, and it was afterwards sold under proceedings appropriate to ¹⁴ the purpose.

It was not in any way involved in this case. The trusts of the deed were for the sole and separate use of Mrs. Thompson during her life; and after her death for the support and maintenance of Robert E. Thompson, and after his death as to the real estate (which alone is nowin question) for Alfred Cookman Thompson (son of Annie,) and any child or children which she might thereafter have ; and in case all the children of said Annie should die, under lawful age without leaving a child/ children or descendant living at the death of the last survivor, then in trust for other persons. It will be necessary hereinafter to examine particularly the terms of these limitations; but this statement of them is sufficient for the present. Mrs. Thompson died in 1878, without ever having had any children except Alfred, and he attained his twenty-first year before the institution of this suit.

Robert E. Thompson became an insolvent in 1878, and under the insolvent proceedings, his life interest iii this property was sold to a person, who several years later conveyed it»back to him. In August, 1887, Robert and Alfred Thompson filed a bill in equity against Ballard, the trustee, and the persons to whom the contingent estates were limited in case of the death of Mrs. Thompson’s children, without issue as above stated. The bill prayed that the trustee might be discharged from the trust, and the trust declared to be at an end. Testimony was taken establishing these facts which have been mentioned.

The Court dismissed the bill. The trust in favor of the husband is in these words: “in trust that the said trustee 'shall appropriate and apply the net rents, issues, incomes and profits derived from the said trust property and premises, to the use, benefit, support and maintenance of said’Robert E. Thompson, for and during and until the end of his natural life.” ¹⁵ The object of the trust was strictly and entirely personal. Robert Thompson alone was in contemplation, and it was incapable of being performed in reference to any other person. When a third person became possessed of his rights of property, the trust ■was entirely defeated.

Thompson purchased this person’s interest in the property; hut he acquired what his vendor had, in the same plight and condition as he held it, just as any other purchaser would do. It would seriously affect the free transmission of propertjr, and impair its value, if an owner could not convey his property with all the rights and advantages belonging to it. When Alfred Thompson reached the age of twenty-one years, inasmuch as his mother had no other child, the expectancy was defeated, which was contingent on the death of all Mrs. Thompson’s children under the age of twenty-one, without issue living at the death of the last survivor. The only other limitation tó he examined is that in favor of these children.

It is in these words: ‘‘And as to the land and premises secondly above described, in trust for the said Alfred Cookman Thompson, and any child or children which said Annie E. may thereafter have, their heirs, executors, administrators and assigns, as tenants in common eqxially; the issue of any deceased child to have and take the part, share or portion to which the parent of said