Wagner v. Wagner

Smith, J.

(specially concurring*) — I concur in the majority opinion but think something further should be said.

While the deed and the trust agreement were parts of the same transaction, the latter only served the purpose of a declaration of trust by grantee who by virtue of.the deed became holder of the legal title. It did not convey or encumber or “contract to convey or encumber” the homestead. It was no part of the conveyance but served only to limit or qualify the conveyance.

It complied wi1h our statute of frauds (sections 557.10 and 622.32, I. C. A.) in that it was “signed by the party charged,” *488 to wit, the owner of the legal title. There is no requirement that a declaration of trust be signed by anyone else.

. The rule as to the creation of trusts where a writing is required is that “the writing be subscribed or signed by the party who settles or declares the trust, who conveys in trust, or who admits the trust against his legal title. * * * the subscribing may be by the trustee, where the trust is created by his declaration when he takes or while he holds legal title”. (Italics supplied.) 54 Am. Jur., Trusts, sections 46, 61; 65 C. J., Trusts, 264, section 46, note 86, section 62, page 280, note 86.

Joseph B. Wagner’s signature to the trust agreement was unnecessary as by the concurrently executed deed both he and his wife, Ida, conveyed the land including the homestead. By the same token the wife’s signature was unnecessary to the creation of the trust. Restatement of the Law, Trusts, section 42(b), and Comment f, page 131.

I am authorized to say that Justices Oliver, Mulroney, Gareield, and Bliss, and Chiee Justice Wennerstrum join in this special concurrence.