Butler v. Welton

WALLACE, C. J. — In April, 1851, Merit Welton and Charles IT. Ingalls, by deed of that date, conveyed certain premises, of which the premises in controversy are a portion, to Roger S. Baldwin and Charles T. IT. Palmer, as trustees, upon the following trusts expressed upon the face of the deed, that is to say: First, that during the coverture of Elizabeth (wife of said Merit, one of the grantors) the trustees should manage and control the trust estate and pay the proceeds to said Elizabeth. Second, upon the said Elizabeth becoming discovert by the death of her said husband, Merit Welton to convey the estate to her. Third, that the said trustees shall have power, with the approbation or at the request of said Elizabeth expressed in writing, to sell and dispose of the said trust estate or any part of it, and the proceeds to invest in other real or personal estate according to the written direction of the said Elizabeth; and the estate so purchased to be held by the trustees upon the same trusts and for the same uses and purposes as aforesaid. Fourth, that in case of the decease of either of the above trustees, or the resignation of this trust by either of them, the survivor or either of them shall hold the whole of the estate as sole trustee, subject to the provisions herein set forth and expressed, unless some other pei’son or persons shall be appointed by the said Elizabeth to be cotrustee or trustees under the provisions herein expressed, and in ease of the decease of the said Baldwin and Palmer, of of their resignation of this trust, they or their executors or administrators shall convey, transfer and pay over the whole of the trust estate then held by them to such person or persons as may be appointed in writing by said Elizabeth to be the trustee or trustees of such trust estate, and such new trustee or trustees shall have all the powers and shall hold the trust estate subject to all the provisions herein expressed, etc. The trustees, Baldwin and Palmer, accepted the conveyance and the trust thereby created, but on the 20th of June, 1851, less than two months afterward, Elizabeth Welton, the cestui que trust, gave her [733]consent in writing, bearing date of that day, “that Charles T. EL Palmer shall resign his trust which he holds in common with Roger S. Baldwin to property deeded to said Palmer and Baldwin by Merit W. Welton and Charles EE. Ingalls for my benefit whenever he may wish.” Five days thereafter, on the twenty-fifth day of June, 1851, Palmer executed under his hand and seal a paper purporting upon its face to resign his trust in the premises, the language being: “Hereby utterly resign my office as trustee of the said Elizabeth S. Welton and her heirs from this day and declare myself henceforth no party to and not liable for any contract, action, or business connected with said estate,” and gave it to his cotrustee, Baldwin, who was his copartner in business and his general attorney in fact, who placed it in a safe among the papers belonging to himself and Palmer, where it was subsequently found by Palmer upon the decease of Baldwin in 1856. In September, 1852, Merit Welton, Elizabeth Welton, his wife, and Roger S. Baldwin, “for himself and Charles T. H. Palmer, trustees for Elizabeth S. Welton, wife of the said Merit Welton,” conveyed or attempted to convey the entire premises constituting the real estate held in trust to one Brown for the purported consideration of seven hundred and fifty dollars, paid in hand, the conveyance purporting upon its face to be executed by said Merit and Elizabeth as grantors, and also by “Roger S. Baldwin, Chas. T. H. Palmer p. p. Roger S. Baldwin atty., trustees,” and acknowledged by Baldwin as trustee and by Merit Welton and Elizabeth, his wife, in the usual form before a notary public, the certificate, however, not stating that the contents thereof were explained or made known to the said Elizabeth by the officer receiving and certifying her acknowledgment. The plaintiff Butler derives his asserted title to the premises in controversy through the conveyance to Brown, and being in possession, brought this action against the defendant Palmer as surviving trustee, and the other defendants, heirs at law of Merit Welton and Elizabeth, his wife, both of whom are deceased, alleging “that Palmer executed said deed by his attorney in fact, the said Roger S. Baldwin, Jr.; that the said Palmer had prior to that time made said Baldwin his attorney in fact by power of attorney, which was not recorded, or it may be that the said Baldwin was the sole trustee for the