# Linton v. Brown's Adm'rs

> U.S. Circuit Court for the District of Western Pennsylvania · May 23, 1884 · 20 F. 455

URL: https://www.frixlaw.com/law-library/cases/8310054

## Case

- **Full name:** Linton and Wife v. Brown's Adm'rs and others
- **Court:** U.S. Circuit Court for the District of Western Pennsylvania
- **Decided:** May 23, 1884
- **Citations:** 20 F. 455; 1884 U.S. App. LEXIS 2234
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Radley
- **Judges:** Aohbson, Bradley, Radley
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8310054

## Opinion text

1 Radley, Justice.
The bill in this case was filed by Augustus E. Lii' ton and Phebe B. E. Elwina, his wife, against the administrators, wit i the will annexed, of James E. Brown, deceased, and against his widotv, Kate L. Brown, and infant son, Jamos E. Brown, Jr., (by his guardian, Charles T. Neale,) the Kittanning National Bank, and the *456 First National Bank of Kittanning, to establish certain trusts, alleged to have been established and declared by James E. -"Brown, in his lifetime, and by John B. Finlay, and for an account of the said trusts. Copies of the instruments by which the said trusts are alleged to have been created are annexed to the bill as exhibits, marked, respective^, A, C, and D. Exhibit C is an assignment, dated August 10, 1865, by which Mr. Brown, in consideration of the love and affection which he bore to his daughter, Jane B. Finlay, and to her daughter, Phebe R. E. Elwina Finlay, (who is now the wife of Augustus F. Linton, and one of the complainants,) assigned to said Jane 610 shares of the capital stock of the First National Bank of Kittañning, amounting to $61,000, but to remain in his (said Brown’s) name and under his control during his life, as trustee for the said Jane, for her sole and separate use, free from the control of her husband, during her natural life, and after her death the stock, with its accretions and accumulations, in trust for the sole and separate use of the said Phebe R. E. Elwina, free from the control of her husband, and in the event of the death of both of said beneficiaries in his life-time, the said stock, and its unused and funded or invested accumulations, to revert and return to himself, the said Brown. The terms of the trust are somewhat amplified in the instrument, but the general scope of it is as now stated. This instrument is admitted to. be valid and binding, and the trusts contained in it are acknowledged by the defendants to be operative. Exhibit X) is also admitted to be a valid and subsisting trust, and its execution is not opposed by the defendants. It is a release from John B. Fin-lay of all his right, title, and interest in his deceased wife’s estate, to James E. Brown, in trust for the sole use of his daughter, Phebe R. E. Elwina Finlay, (now Linton,) one of the corfiplainants, her heirs and i assigns, until she should reach her majority, and then to be unconditionally transferred to her, her heirs and assigns. The other document, Exhibit A, is denied to be a valid and subsisting instrument, and its validity forms the principal subject of controversy at this stage of the case. It purports to be a deed-poll of the said James E. Brown, bearing date the twenty-third day of July, A. D. 1867, by which the said Brown, in consideration of $500 to him paid by his daughter, Jane B. Finlay, and of the .natural affection he had for her and her child, Phebe R. E. Elwina Finlay, granted, bargained, sold, conveyed, and .transferred to the said Jane during her natural lifetime, and to her said daughter after her death, all the real estate situated in the states of Pennsylvania, Wisconsin, Illinois, Missouri, and Nebraska, which Dr. John B. Finlay (husband of said Jane) had theretofore conveyed to him, the said Brown; all the personal estate, choses in actions, and claimp which had been assigned and transferred to him, the said Brown, by the said John B. Finlay, and were yet held by said Brown; also all the claims, debts of every character which he held, and which were justly due to him by John B. Finlay and by Tañe B. Finlay; and also the whole indebtedness to him by the firm of *457 Finia j & Co., including üio transfer to him, said Brown, of said firm, in wri dng, dated November 7,1866, — to be held and possessed by his said ( aughter and granddaughter, and their heirs and assigns, upon certa1 n terms and conditions, which were then specified in the deeds, whicl, were in substance nearly identical with the trusts declared in the i revious instrument, Exhibit C; namely, that the property eon-veyes E. Brown, above named, and acknowledged the foregoing deed to be his ¡ ct and deed, and as such desired it to be recorded. Witness my hand and lotarial seal the twenty-third July,1867.” On the same day Mr. Brown acln owledged the execution of the deed before Joseph Alcorn, a notary public, vho thereupon affixed his official seal to the certificate, and signed it in his ase, Pollock produced the envelope to his family, when it was opened, the will read, and the deed delivered to John B. Finlay, (his wife being then dee ;ased.) and both papers were handed back to Pollock, with the request to 1 ave the will registered and the deed recorded, which was done.
' 'he facts as now stated are undisputed, and we might stop hero am i ask whether the deed in question is not, by this evidence alone, we 1 and sufficiently proved to have been duly executed and delivered, so is to become a valid and operative instrument on the day of its daf e ? Or, if not operative as a deed of conveyance to transfer the log il title, whether it was not at least operative as a declaration of trust, binding upon James E. Brown and his heirs at law? We are inclined to think it was both. If valid as a deed of conveyance, of coi rse it was valid as a declaration of tho trusts contained in it, al-th wn and his wife, Kate L. Brown, executed a deed of conveyance to lane B. Finlay, her heirs and assigns, for nearly the same real est ite which was conveyed by the deed of July 23, 1867, being de-soí ibed as “all that certain real estate situated in the states of Penney] vania, Wisconsin, and Missouri, Nebraska, and Minnesota, which wa i conveyed to the said James by and more particularly described in he following conveyances, viz.,” — then describing the several deeds gii en by John B. Finlay to James E. Brown, in November, 1866. The pa ’pose of the conveyance is then stated to be “for the sole and separate use of the said party of the second part, (Jane B. Finlay,) an 1 her heirs and assigns, and to be uncontrolled, nor incumbered, no • charged by, nor liable, nor subject in any way to debts, contracts, or engagements of her present or future husband, nor of the future hu iband of her daughter, Phebe E. E. Elwina Finlay;” to have and to hold the said real estate and appurtenances for the purposes and lir dtations aforesaid, unto the said party of the second part, and her he irs and assigns, forever.
Mr. Brown did not constitute himself a trustee by this instrument. The deed appears to be regularly executed by the grantors, and wit-n« ssed by J. B. Heiner and W. Pollock, and acknowledged on the dty of its date before said Heiner as a justice of the peace, and is st imped with government stamps to the amount of §10, the con *464 sideration named in it being $10,000. It also has a receipt signed by J. E. Brown, written under the attestation, acknowledging that be received on the date, from Mrs. Jane B. Finlay, the sum of $10,000 in full of the consideration. There is no evidence in the case, however, except this receipt, that any money or valuable, consideration was actually paid. It is shown that John B. Finlay left it for record in the recorder’s office of Armstrong county on the ninth of October, 1871, and that it was taken by him again after being recorded; and'it was subsequently, in the month of November, recorded in two counties in Nebraska. A certified copy of a lease was also given in evidence, dated July 23, 1879, and executed by one Hamlin as 'attorney in fact for the heirs of Jane B. Finlay, for a lot in Nebraska, in which the said deed was referred to. At this time, however, Mrs. Linton, the only heir at law of Mrs. Finlay, was only 17 years of age, and was a married woman.
Jobn B. Finlay, being examined' with regard to this deed, (of April 1, 1871,) says that he got it after this suit was commenced from W. D. Patton, a lawyer in Kitfanning, and that he knew nothing about it from the time of his wife’s death until it was handed to him or shown to him by Mr. Patton; and, when it was handed to him, there was a paper folded up in it in the handwriting of'his wife. This paper was offered in evidence by the plaintiff, but was objected to as incompetent. It seems to consist of memoranda of instructions to counsel, and cannot have any legitimate effect as evidence, unless it be to show that Mrs. Finlay herself repudiated the deed. Perhaps, as the conduct of the parties is so searchingly inquired into for the purpose of ascertaining their intentions and understanding as to the validity and subsistence of the deed in question, this declaration of Mrs. Finlay, now deceased, is as good for the purpose as the declarations and conduct of Mr. Brown. In the memorandum, which is written and signed by her,.she says—
“That this is not the original transfer; that J. E. Brown transferred to me said lands and said judgment, two years previous to this one, by paper signed, sealed, stamped, by himself and wife, and given into my possession; that said paper was handed to J. E. Brown, as custodian, and two years afterwards present paper was returned to me. Defendant now asks for production of first-named transfer.
[Signed]
' “Jane B. Finlay.”
There .is a'further memorandum on the paper which does not appertain to-this subject. On the back is indorsed a pencil memorandum in the handwriting of Mr. Painter, — a lawyer, — which probably furnishes some clue to the purpose of the memorandum. It is the title of a judgment, “Kittaning Bank v. J. B. Finlay,” and a note as to its date, (June term, 1867,) and that noft. fa. had been issued on it; so, probably, one of the debts or judgments which Mrs. Finlay claimed to have been transferred to her, and on which proceedings against her. were about to be taken. On, the hearing we were dis *465 posed t( think that this paper was entirely incompetent, hut we think it may l e used as some evidence of Mrs. Finlay’s position with regard to the cheds of 1867 and 1871. There are inaccuracies of date, and of some particulars, as that Mrs. Brown executed the first deed; but no mor > than might be expected when Mrs. Finlay was depending on mer * recollection.
But ¡ his whole matter of subsequent conduct and declarations, including the deed of 1871, may be disposed of by the observation that, if the deed of July 23, 1867, was duly executed and delivered, as we have si own that it was, it could not be gotten rid of or taken back by Mr. Brown by any indirect methods of the kind referred to; certainly not as against his granddaughter, the present complainant, who d: I not come of age until February, 1883, after this suit was brougl t, and who has been a married woman since December, 1878. She wr tlie purpose of giving it completion. * * * If the settlor propose to cc avert himself into a trustee, then the trust is perfectly created, and will be ei forced as soon as the settlor has executed an express declaration of trust into) ded to be final and binding upon him, and in this case it is immaterial whe lier the nature of tlie property be legal or equitable. * * * Where the t ettlor proposes to make a stranger tlie trustee, then, to ascertain whether a va id trust has been created or not, we must take the following distinctions: If tl e subject of the trust be a legal interest, and one capable of legal trans-mut ition, as land, or chattels, etc., the trust is not perfectly created unless tlie egal interest be actually vested in the trustee. ”
I . seems to us that the deed in question, regarded merely as a declaration of trust, was clearly executed in a manner to fulfill all the- *468 requirements of such an instrument; though we are further of opinion that it was well and sufficiently executed and delivered as a deed of conveyance to transfer the legal title.
Sea Ireland v. Geraghty, 15 Fed. Rep. 35, and note 45. — [Ed.
Our conclusion is that the complainants are entitled to a decree declaring that the deed of July 28, 1867, was duly executed and delivered, and became valid and effectual for all the purposes therein expressed at and from the day of its date; and that all the trusts declared in the several instruments described in the bill of complaint, and annexed thereto as Exhibits A, 0, and D, should be established, carried out, and enforced, and that an account should be required as prayed for m the bill.
Upon an examination of the master’s report we are entirely satisfied .with its correctness, and if it were a regular practice to refer the principal controversy in an equity suit to a master, we should be content to accept and confirm the report, without a particular and detailed examination of the evidence. But as this practice is not strictly regular, and as it is the duty of the court itself. to pass upon the merits of the ■ case, we have felt it our duty to do so. We have examined the form of decree which the master has proposed and annexed to his report, and are satisfied with it as the proper decree to be entered.
It may be proper to observe, before concluding this opinion, that as the deed of February 2, 1867, from James E. Brown and wife to Mrs. Jane B. Finlay, for the tract of 319 acres of land in Kittanning township, Armstrong county, was executed before the deed of July 28, 1867, and contained identically (or nearly so) the same trusts which are declared in the latter deed, it is paramount thereto, and the complainants will be at liberty, if they see fit, to amend their bill of complaint by setting forth the said deed of February 2,1867, and praying for the establishment and execution of the trusts therein contained. It was not exhibited in evidence until the present hearing, and had probably been overlooked in the preparation of the bill of complaint.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8310054. Public record. Not legal advice.