#### Samuel Taylor *vs.*William James, executor of William Ford.

EAáT3 J,

*Georgetown*

Heard by Chancellor Gaillard.

A contract in writing by a father, For the purchase of a tract of fend from a third person, in trust for his son, gives such an interest in the laud to the son, that it cannot be divested or varied by any subsequent act of the father and the vendor. The failure of the inducement to a legacy does not invalidate the legacy, unless founded in fraud, or gross misrepresentation. It appearing to the court, that though the fether was the nominal legatee, the son was the real object of the testae tor’s bounty, it was decreed that the father should take as a trustee for the son. The court of appeals is merely appellate, and cannot receive or decide on an original application; even for a bill of review.

The bill in tills case, states that complainant bargained with "William Ford, the testator, in the year 1800, for one eighth of Sooth island, for 500k to be paid in five equal annual instalments. That complainant look from the testator a bond to make titles to him for the same, in trust for Ids son Samuel Alfred Taylor. That he furlher agreed with the testator to sell to him throe .negro slaves, for, as he believes. T:6k Ads. *10(h*and *2gave a bill of sale for them, the consideration money mentioned in which is the true sum for which the slaves' were sold. That it was also agreed, that the purchase money of the said slaves, should be considered as a part payment of the said land, and was accordingly endorsed upon the said bond. That complainant bound said William Ford, to make titles to him, in trust for his said son, that he might compel the making such titles in case lie should think proper to do so, but that the property, given as aforesaid in payment, belonged to complainant, and that his son had no claim or right thereto. Thai; complainant made other payments to said testator on account of said land, which he charged in his general account, on which there is due to complainant a balance of g 779 76. That the business remained in this situation until the 5th of April 1806, when testator being very rick, made his will, and among other things devised half of his fourth of South Island to his nephew Francis W. James, and the other half being that which lie sold complainant as aforesaid, to complainant’s son William Ford Taylor. That testator further directed, as he had given complainant Iris, bond to make titles to the half of the fourth of said island devised to William F. Taylor, and as complainant had made him payment thereon, that complainant’s bonds should be given up, and the payments made as aforesaid be refunded oui> of his estate — And ihe testator appointed among others the honorable William James executor of his will 5 and he alone qualified there-pa. That the. will of the said William Ford was drawn by defendant. That complainant was present, and was informed by defendant that testator was desirous of giving the part of South Island which he had sold to complainant, to complainant’s said son William F. Taylor, but defendant not being able to understand the directions, desired complainant to explain them to him. That complainant thereupon, in the presence of said’ defendant, enquired of testator what were his wishes in that particular. Whereupon the said testator replied, that he wished to will the land sold to complainant to Ids said »$u William F, Taylor, if it Was agreeable to domnlain-*3put, and to refund the money complainant had paid.- — That complainant informed testator that it was agreeable to him, if it would afford the said testator any gratifica-tiou. That the said testator further observed, in the presence of defendant, that complainant bad paid him for the land : after which explanation the will was drawn as above mentioned, which will, so far as relates to this case* is in the words following, viz. “ To William F. Taylor, son of captain Samuel Taylor, and his heirs forever, I devise the remaining one half of my one fourth of South Island ,* but as I have given the said Samuel Taylor my bond to malee him' titles to the said one half of the one fourth, aud he has made me payments thereon, my will is, that the said bond be given up to Mm, and the payments to be refunded to him out of my estate.” Thehill prays that defendant may be decreed to pay to complainant 500Í. with interest, and to deliver up the bond to ho .cancelled.

*1FEB'Y. 1809.

*3The defendant by his answer admits the bargain for the sale of the land, but saith that whether complain-' ant bargained for the same for himself in his own proper light or as a trustee for Ms son Samuel Alfred Taylor lie is not informed, but submits the same to the court under the words of the bond, viz. That the bond was entered into by the said William Ford to make titles for the said land, in trust for the infant son of complainant, Samuel A. Taylor, and defendant prays the decision of the court whether the terms of the said bond or the said trust estate pan be altered or varied. He admits that the- negroes ■were sold as aforesaid for 4'56Z. 15s. *10it.*and that it may have been in part payment of said land, and that a receipt may have been written off as aforesaid, but be cannot ad-' put that the negroes belonged to complainant in bis own right, and that his son Samuel Alfred had no claim to the .same, or that the same were unincumbered by any deed, settlement or judgment prior to the said transfer, and. prays that complainant may he put to proof of the same before he shall he decreed to pay the legacy bequeathed to him by the will of the said William Ford, as otherwise defendant may he compelled to pay the valgo of the said *4negroes again when the said Samuel Alfred comea c# age, or might hereafter lose the same by prior incumbían-ces. Defendant cannot admit that any other payments» were made towards satisfaction of said bond, and conceives himself bonne! as executor and guardian of his. children to require the said complainant to produce vouchers, or other proof, to substantiate the amount filed with this bill. Nor does defendant recollect, or believe, William Ford, when giving him directions about that clause of the will which relates to complainant, his ■son William F. Taylor, ever admitted that the bond above mentioned was fully *paid;*but on the contrary, from the conversation which took place between complainant and 'William Ford, to explain the nature of said bond, and the payments thereon, the impression on the mind of defendant was, that they were not agreed as to-said payments, and that William Ford considered the same only as partial. That complainant did not then state that the bond ivas given in trust for his son Samuel Á. Taylor, nor did defendant know any thing of that circumstance until he afterwards found the counterpart, of said bond among the papers of said testator. He admits the will, in which it will be peen that it is expressly stated that the bond was given to Samuel Taylor, and, that the said Samuel A. Taylor, or the trust in I;is behalf, are not mentioned in the same $ and that three of defendant’s children are the principal devisees, and legatees nnder the same. Defendant also submits, whether the devise to William F. Taylor be not void, as the said 'William Ford had, before the making of said devise, by a deed under his hand and seal, parted from all the right he had in the said one eighth of South Island, to Samuel A„ Taylor, and whether the said Samuel Taylor, *by Ms*verbal consent, could annul the said trust. He also submits whether complainant can take any thing under the clause of the will in his hill relied upon, since the principal object of the bounty of the said William Ford in the said de-vine was William F. Taylor, and if his intention, as to him should fail, whether the bequest to complainant should likewise fail, A nd the judge, after stating the. case con-*5iormably to the bill and answer, proceeds thus in his decree.

The bond in this case (above stated) is inaccurately worded, for in one part of it Mr. Ford makes an actual conveyance of these lands, and in another pari he contemplates making titles to them as soon as the payments are made. But it appears to have been his intention that Mr. Taylor should have the possession of them immediately, for in the first part of the bond he uses the wordss< and given possession,” and in the latter part of it he authorizes him to use and exercise the power and authority vested in him as proprietor of the one fourth part of the said island to his us® and benefit; and ho further authorizes Mr. Taylor to use his name in ' procuring an order for a division of said island whenever'he should think proper to do so. It is not material whether . the paper recited be considered as an actual conveyance or as an agreement to convey, for, whatever for a valuable consideration is covenanted to be done, shall in equity. be looked upon as done — .thus money agreed to be laid out inland shall he taken as land, and e converso. Lichmore *vs.*The Earl of Carlile, 3 P. Wins. 211. Agreements to perform are often considered as *performed;*for if a man covenant to lay out a sum of money in the purchase of lands generally, and devises his real estate, before he has made such purchase, the money agreed to he laid out will pass to the devisee. Green *vs.*Smith, 1. Atk. *579,.*

It was said by the counsel for complainant, that a specific execution of an agreement would not have been decreed against William Ford in bis life time, unless the bond had been paid; but even if this were so, it appears from the complainant’s exhibit A. that he had more than paid tine purchase money to Ford previous to his death. For after crediting the balance due on the purchase of one eighth of South Island, lie states a balance to be due to himself of ¡3 7C9 78.

Tim agreement for the sale of the land was for a valuable, consideration, between Mr. Ford and Mr. Tay-ior j and as between Mr. Taylor and Ins son Samuel A-*6Tayh\", ího cestui que trust, the consideration is also good. **e*Natural love ami affection is very sufficient to create a use, and will amount to a covenant to stand seized though no other consideration appears.” Lloyd *vs.*Spillet, 2. Atk. 148'. Á father is bound by the laws.*' of nature to provide for his children, and if he purchase lauds in the, name of a son unadvanced, it is an advancement for him. Si Fonbl. 121. and 1. Atk. Taylor *v$.*Taylor.

it is obvious that the complainant bought the lands on South Island for his son Samuel Alfred, and that he was to hold them in trust for him. Having done so, tiro cestui quo trust acquired rights which he has. not Been, deprived of by the reeision of the contract intended hy Mr. Ford and Mr. Samuel Taylor. In 2. Fonbl, I GO, chapter seventh, it is laid down that regularly no act of the trustee shall prejudice the cestui quo trust; and there is a note in the same page in these words, *“*with respect to Ids powers (that is of the trustee) to prejudice bis cestui quo trust by alienation, the single case in which his alienation of the estate, can bind, the cestui que trust, when being in possession of the estate, he conveys it fora valuable consideration, and without notice the purchaser will be entitled to hold the estate against the cestui que trust.”

If Sir. Taylor, the trustee, had a right to rescind the agreement between him in trust for his son Samuel Alfred and Mr. Ford, under the testator’s will, then the interest ©f the cestui quo trust will bo destroyed.

The counsel for the complainant considered the agreement for the sale of the land as under the control, and capable of being rescinded by Mr. Ford and Mr. Taylor. They have rescinded the agreement if they could do it *i*but the court is of opinion, the rights of Samuel A. Taylor under the bond given to his father, in trust for him, are unimpaired; consequently, that the devise to "W. F. Taylor is void. If so, is Mr. Taylor entitled to have Ids bond delivered up to him and the payments made ©n it refunded to him ? There can be no doubt about the "iniraiicii of the testator. He intended,, as has been dI*7ii?ady observed, to rescind tbc agreement he had made ■svitli Mr. Taylor, in trust for Samuel A. Taylor, in order that he might give tholands, the subject of that agreement, to W. F. Taylor. What he says respecting tbc bond, and the payment made thereon, has in it more of the character of a contract than a legacy. “ To W. F. Taylor, don of captain Samuel Taylor, and his heirs forever, I devise the remaining ono half of iny one fourth of South island, but as I have given tho said Samuel Taylor, my bond to make him titles to tho ono half of tho one fourth, and he has made me payments thereon, my will is that the-said bond be given up to him, and the payments thereon to be refunded out of my estate.5’ it is as if the testator had said to Mr. Taylor, I agreed to sell my land for a certain sun* — I wish to have these lands back again, as i wish to give them to your son bearing my name, William F. Taylor — If you will let me have them to enable me to do so, the bond shall be delivered up to you, and the payment's made on it refunded. If Mr. Taylor has not been able to revest the lands on South Island to Sir. Ford, Indispose of them as he wished, he cannot be entitled to the consideration agreed on for so doing.. A quid pro qu<«. was intended — Legacies are gratuitous. The court is of 'opinion that the testator did'not intend a personal bounty Vo complainant. The principal object of the testator'’» bounty was William F. Taylor, and the devise to him having failed, the legacy to tho complainant, as it bass been improperly called, for it has none of the feature;) of a legacy about it, so intimately connected with ami dependent on it, that that must fail also.- — Let the bill be dis» missed with costs.”

From ibis decree tho complainant appealed and Stated the following grounds, viz ;

1. For that the decree supposes the bond made by William Ford to complainant to be an actual conveyance, when in fact and in law, it is only a contract to convey, and being executory in its nature, was liable to be dis-annulled, and was disannulled by the parties, and cense-quen'Iy it was not competent for the court to revive iiv.

*82. For that it is determined by the decree that a use was created for Samuel A'. Taylor by the said bond,. whereas it can amount in law to no more than an intention to create a use, under which intention no obligation arises, and consequently the supposed cestui que trust acquired no right under it.

3. For that the decree determines that the contract aforesaid could not be rescinded or disannulled, or otherwise discharged by the parties, although it is unexecuted.

4. For that by the decree it is determined that the legacy to complainant is void, notwithstanding the plainest intentions of the testator to make the bequest, the said bequest being considered in light of a contract and not of a legacy, contrary to the rules for construing wills and legacies.

The appeal was heard at Columbia, present chancellors Rutledge, Thompson, Dcsaussure and Gailiard. Mr. Grant for appellant — Mr. Richardson for respondent.

The court of appeals was unanimously of opinion, that the bond or agreement to convoy the land from ’William Ford to Samuel Taylor, in -trust for his son Samuel Alfred Taylor, gave such an interest to S. Á. Taylor, in the land, as could not be divested or varied by the act of Ins father, and Win. Ford. That therefore the .subsequent devise of the said land by Win. Ford, to W. F. Taylor, cannot affect the rights of Samuel A. Taylor, in the said land, nor transfer them to W. F.Taylor.” The decree of the circuit court was therefore añlrmed as to the land. “ The court was further of opinion (Judge Gailiard dissenting) tiiat the failure of the devise of the land to W. F. Taylor, did not invalidate the bequest made by Wm. Ford to S. Taylor the father ; for the failure ox the inducement to a legacy docs not invalidate the legacy itself, unless founded *in,*fraud, or gross misrepresentation. The decree (on this point) therefore must be reversed. But as the court is doubtful whether under the circumstances of the case, S. Taylor, the legatee, ought not to he deemed a trastee to the amount of the legacy for his .son W.- F. Taylor, It was ordered said directed,-that the cause be referred back- to the c;r? *9-unit court, that the. last mentioned point might be argued a::;! decided.”

The cause was accordingly remanded to the circuit court at Georgetown, where it was brought to a hearing before judge Gaillard, who then held that court.

The judge, after stating the manner, and the point, on which the cause had been sent down, proceeded as follows:

The circuit court did not consider the testator as intending to give a legacy to Wm. Taylor, when he ordered his bond to bo delivered up to him, and the payments made on it refunded. The court of appeals thought otherwise. From the doubt expressed by the court, whether under the circumstances of the case, Mr. Samuel Taylor, tlie legatee, ought not to be deemed a trustee to the amount of the legacy for his son W. F» Taylor, it would seem that they did not intend to decide, to whom the legacy should belong, to the father or the son. The lather was a party in the former suit, and claimed the legacy. The decree of the circuit court was, that the testator did not intend a personal bounty to him, and his bill was dismissed. If the court had made up its mind that he was entitled to the legacy, it is to be presumed that they would have said so when this part of the decree of the circuit court was reversed. I was under an impression, until I read the opinion of the court of appeals 'the other day, that W. F. Taylor was ordered to be .made a party in the suit, that the court might decree the legacy to him. As the court of appeals has declared the legacy not to be void, it will rest with them to say to whom it belongs. From the manner in which this case is ordered back, the circuit court is bound to give its judgment whether S. Taylor is to hold this legacy in trust for his son W. F. Taylor; or its other words, whether the legacy is given to S. Taylor or to his son; for if given to him in trust for his son, or lie is to hold it in trust for him, it is the same thing as if it had been given to ¡.he son himself, since he. would have the benefit of ií. I do not think "W. F. Taylor entitled to this legacy, because if is not given to him. lie was r.o doubt the prbreprJ. object *>/'**10the testator’s bounty. The testator devised land to biro, but this deviso has been declared void by the circuit court, an^ decision affirmed. This case may be considered as a hard one, but it is the case of every other devisee to whom land is devised which the testator had no right to dispose of. To give the legacy to *W.*F. Taylor, would be to convert a devise of land into a money legacy, and to raise the money to pay it out of the testator’s personal estate. He lias no claim upon the estate for this. I quote from Digest of Modern Chancery Cases, page 139, the-case of Broome and Monk, reported 10 Vez. *597*— “A devisee claiming the benefit of a contract for the purchase of an estate, directed to go to the uses of the will, the title proving defective, has no claim upon the personal estate, either to have the purchase money, or another estate purchased, or the purchase completed, notwithstanding the defect.” The opinian of the court is, that 3. Taylor ought not to be deemed a trustee to the amount, of the legacy for his son W. F. Taylor.

Theodore Gaiiíaiib.

From this decree an appeal was made on the following grounds:

1. Because the court did not decree the legacy to the complainant.

2. Because the, distinct court did not determine the question referred to it by the court of appeals, which was, whether S. Taylor should take the legacy in his own. light, or as trustee for his son, and as the court decided that the son had no rigid to the legacy, it ought at the same time to have decided that the legacy should be taken by 3. Taylor in his own right. The question for the court is, “"Who shall take the legacy ?” They decided that it does not fail. It is decided ami the decision acquiesced in, that S. Taylor is not a trustee for his son— they call him the legatee and yet don’t give him the legacy.

The appeal was heard by the court of appeals at itfr sitting in Columbia. Present chancellors Dcsaussurr. Gaiilard, and aties. After hearing counsel the cotas took time to consider and at its sit Urn: n Nov, lBi-b *11present chancellors Thompson, Dcsaussuvc, Gaillard and Waties, the court (judge Gaillard dissenting) delivered its final decree.

This cause was originally tried at Georgetown, and the judge decreed that the bequest in the will of ¥m. Ford (by which he directed the bond for *5001.*which had been given him for the purchase of a tract of land hy S«. Taylor, should be delivered up to the said S. Taylor, and that the payments which he had made under said bond should be refunded) had failed, and under the circumstances of the case, could not take effect. On an appeal this court was of opinion, that the legacy had not failed] and the decree was reversed, on the ground that the failure of the inducement to a legacy does not invalidate the legacy itself, unless founded in fraud, or gross, misrepresentation. - But as the court was doubtful whether under the circumstances of the case, Samuel Taylor, the legatee, ought not to be deemed a trustee to the amount of the legacy for his son *W.*F. Taylor, it was ordered and directed, that the cause should be referred back to the circuit court, that the aboYementioned point should be argued and decided.

On the second hearing of the cause in the circuit court, the judge who presided was of opinion, and decided accordingly, that S. Taylor o tig lit not to be deemed a ' trustee for bis son *W.*F. Taylor. From tisis decision an appeal is made, on the ground, that the district court did not determine the question, which was referred to it by the court of appeals, whether S. Taylor should take the legacy in his owr. right or as trustee for his *son;*and that having decided that the son had no right to the legacy, it ought to have decreed the legacy to the complainant, Samuel Taylor, in his own right.

This case has become entangled from the various decrees and orders which have been made in it. It therefore becomes necessary for this court to do final justice in the cause, and to put an end to litigation. The court has considered maturely the best mode of giving effect to the first decree of the court of *appeals;*and it' appearing, -hat although the father (who is complainant in this suit) *12is the nominal legatee, yet the son was really the object of the testator’s bounty, the court is of opinion, that the decree of the circuit court ought to be reversed; and that the said Samuel Taylor must be held to be trustee for the son. It is therefore ordered and decreed, that the decree of the circuit court be reversed, and that the case be sent down with directions that the defendant be ordered to deliver up the bond of Samuel Taylor, to the late Win* Ford (originally given' for a tract of land, amounting to 5001.) to the said Samuel Taylor; and that the amount paid by him on the bond to thesaid Wm. Ford be refunded to the said Samuel Taylor, with interest from one year after the death of testator, out of the estate of Win. Ford, after payment of the debts of the estate: And that the said Samuel Taylor do hold the same in trust for his son. W. F. Taylor, and accountable to him.

WaDDY THOMPSON.

Henry W. Besausstjre,

Thomas Wattes.

Judge Gaillard

also delivered his opinion:

The decree given by me in the circuit court, being affirmed by the court of appeals in that part which de-dares the devise to William F. Taylor void, and reversed in that part which relates to the payments made on Taylor's bond and the bond itself, the case is narrowed down to this — Ought Samuel Taylor, the legatee, to be deemed a trustee to the amount of the legacy for his son, William F. Taylor? This court has said that the failure of Ihe devise of the land to William F. Taylor does not invalidate ihe bequest made by William Ford to Samuel Taylor, the father : the reason given is, that the failure of the inducement to the legacy, does not invalidate the legacy itself, unless founded in fraud or gross misrepresentation. The court goes on ami says, it is doubtful whether under flic, circumstances of the case, Samuel Taylor, the legatee, ought not to be deemed a trustee to the amount of the legacy, for William F. Taylor. The devise and bequest, •are in these words, *“*To William F. Taylor, son of captain Samuel Taylor, and to his heirs forever, I devise the *13remaining half of my one fourth of South Island; but as I have given the said Samuel Taylor my bond to make him titles to the said one half of the one fourth, and he has made me payment thereon, my will is, that the said bond be given up to him, and the payment to be refunded to him out of my estate.” It is this bond and these payments that constitute what the court held to be a bequest to Samuel Taylor, which could not be invalidated by the failure of the inducement to it. The circumstances therefore, which make it doubtful whether Samuel Taylor, the legatee, ought not to be deemed a trustee for William F. Taylor, do not arise from any supposed intention of the testator, that Samuel Taylor should hold the. legacy in trust for his son. The doubt of the court must have arisen from the failure of the devise of the land to William F. *Taylor;*but surely the failure, of a devise of land affords no inference that the testator intended to give money : As the testator had no right to the lands which lie devised to William F. Taylor, the devise failed; but this does not give him a claim either to the bond or any other part of the testator’s estate. A testator devises lands which he has not: It is clear that the devisee is not entitled to have the devise made good out of the personal estate of the testator. I consider this a clear point. Broome and Monk, 10 Vez. I am of opinion therefore, that Samuel Taylor ought not to be deemed a trustee to the amount of his legacy for his son William F. Taylor.

Theodors Gaihard.

Mr. James afterwards applied to the court of ap> peals for leave to file a supplemental bill in nature of a bill of review, stating newly discovered matter.

Whereupon the court of appeals made the following order:

On petition for leave to file a supplemental bill, in nature of a bill of review, stating certain newly discovered matter therein set fortín The court stated, that it *“*has considered the subject of the petition, and is of opinion that the application should be made in the first instance to the circuit court. This Court is appellate *14merely, and cannot receive or decide on an original application. The petition is therefore dismissed.

Henry W. Desaussuke-

Theodore Gaiuiard.

May 2d, 1812.

Thomas Waties.