I am obliged to dissent from the holding that the trust deed offered for probate is a testamentary instrument; that it was executed animo testandi, and should be admitted to probate.
Mr. Davis died in 1915, and his will, with a codicil, was admitted to probate by the Probate Court of Newport, April 5, 1915. Since this time his estate has been in process of settlement under his will.
The next of kin of Mr. Davis challenged the validity of the residuary clause of the will. Atwood et al. v. R.I.H.T. Co.et al., 264 F. 360; 275 F. 513. The Circuit Court of Appeals, First Circuit, held the residuary clause invalid, and as a result in February, 1922, two of the appellants, Merrill and Bugnon, severally petitioned the Probate Court of Newport to admit to probate said trust deed as a part of said will and codicil. The Probate Court denied the petitions September 26, 1922, and appeals were taken to the Superior Court. After trial in the Superior Court the justice thereof denied the petitions being of the opinion that the trust deed was not of a testamentary character, and was *Page 287 never intended to be; that it was not executed animo testandi, and therefore lacked one of the necessary requirements of a testamentary instrument. Decision was entered dismissing the appeals. The appellants now seek a reversal of the decision entered in the Superior Court.
Mr. Davis was a lawyer, and practiced his profession for many years. He was a man of keen intellect, and careful in business matters. He knew the difference between a will and a trust deed. He accumulated a large fortune, and wished to be relieved of its care. After consultation and consideration he had a will and a trust deed prepared for execution by an experienced attorney.
August 14, 1911, Mr. Davis executed his will in the presence of three witnesses. The following October 4, he executed a codicil to his will, which was attested by the same witnesses.
Mr. Davis signed the trust deed August 14, 1911. He kept it in his possession for two days. Then Mr. Gardner, an officer of the Trust Company, called upon him. Mr. Davis acknowledged his signature on the trust deed to Mr. Gardner and a notary public. After these men signed the trust deed it was delivered to Mr. Gardner. At the same time Mr. Davis transferred and delivered possession of the major portion of his personal property to Mr. Gardner, for the trustee, to be held as the trust estate. The president of the Trust Company subsequently signed the trust deed.
Mr. Davis insisted that the trust deed contain a clause stating that the deposit of the trust property, and the trusts declared were made subject to the condition, that he might, at any time during his life, revoke the trusts declared and repossess himself of all the trust property, or at any time add to, annul, change or modify any of the trusts or powers created, or any of the dispositions of income or principal of the trust estate. October 5, 1911, and October 17. 1913, he exercised this power to change the beneficiaries named in said trust deed. On the latter date he cancelled a gift to Amelie Bugnon. As she is not mentioned in the will or *Page 288 codicil, nor of the next of kin, she is not a person interested in the estate of Mr. Davis, and her petition to have the trust deed admitted to probate should be dismissed. Emsley v.Young, 19 R.I. 65.
This court has held that the trust deed was not a testamentary instrument. The nature of the trust deed and the will and codicil of Mr. Davis were directly involved in the equity cause of Davis v. Manson et als brought in the Superior Court. Issues of fact raised by the pleadings were framed. The ninth issue asked if the will and codicil and the trust deed and the amendments thereto, constituted one instrument in the nature of a will? After a full hearing the trial justice answered this issue "No" and found that the full legal title inpresenti was taken by the Trust Company of all property conveyed to it under the trust deed and amendments, and that it "with the will and codicil in no sense constitute one instrument in the nature of a will". Decree was entered stating, among other things, that the trust was valid and to be carried out and executed by the trustee in accordance with the trust deed establishing said trust. On appeal to this court the decree was sustained. Davis v. Manson et als., 102 A. 714.
This case is cited in Merrill v. R.I.H.T. Co.,45 R.I. 276, 281, the court saying: "One of the issues in that case was as to the nature of the instrument now in question. . . . That adjudication can not be attacked collaterally in the probate proceeding. Whatever may be the outcome of that proceeding, and whatever use the petitioner may seek to make of the decree therein, if favorable to her, all of the parties hereto are bound in that collateral proceeding by the decree of the Superior Court in Davis v. Manson (supra) adjudging that the trusts, in said instrument declared, are valid inter vivos trusts, in accordance with the decision of this court in Talbot v.Talbot, 32 R.I. 72." Under this opinion all of the parties to the instant case (being the probate proceeding referred to) are bound by the decree entered in Davis v. Manson, supra. *Page 289
It being settled that the trust deed was a valid intervivos trust, and nontestamentary as to the property delivered by Mr. Davis to the trustee, this court affirmed the decree directing the payment of the trust fund to the beneficiaries entitled thereto. Merrill v. R.I.H.T. Co., supra.
Having held that the trust deed was a valid inter vivos trust can we now say that it is a testamentary instrument? I think not. The trust deed and the will are distinct and independent instruments. Neither refers to the other. Each operated upon different property. At the time Mr. Gardner witnessed the trust deed Mr. Davis took his will and put it aside saying to Mr. Gardner, "this is the will; this is no concern of yours". Mr. Davis appointed two "friends" executors of his will instead of the trustee under the trust deed.
The trust of the personal property could have been created orally in this State. Mr. Davis as a prudent man insisted that he retain full power of revocation and modification of the trust deed; otherwise he would have lost control of the trust property.Gobeille v. Allison, 30 R.I. 525. Judge Anderson said, 275 F. 521: "Such instructions (as to change) might be given in writing or orally. . . . Indeed, the defendants concede, that oral instructions would, as matter of law, have been equally effective; that writings are of no importance, except as persuasive evidence."
Delivery of trust property is essential to constitute aninter vivos trust, and the trust deed could affect only the property delivered by Mr. Davis to the trustee. Talbot v.Talbot, 32 R.I. 72; Paine v. Paine, 28 R.I. 307;Woonsocket Inst. for Savings v. Heffernan, Adm., 20 R.I. 308;Providence Inst. for Savings v. Carpenter, 18 R.I. 287; 28 C.J. 630. The trust deed provides for the payment to the beneficiaries named therein, of only the property delivered by Mr. Davis in his lifetime, to the trustee. It could not affect personal property not delivered by Mr. Davis to the trustee. It does not refer, in any way, directly or indirectly, to the will or codicil of Mr. Davis, or to his residuary *Page 290 estate. Nor does it provide, or attempt to provide, for the payment or distribution of any property which might be left by Mr. Davis at his decease other than that held by the trustee. In no sense does it constitute an "instrument in the nature of a will". If Mr. Davis had revoked his will and had died intestate, could it be seriously claimed that his estate should be distributed in accordance with the terms of the trust deed? The obvious answer to this question disposes of appellants' contention.
The will does not incorporate, by reference, the trust deed. Concerning this proposition Judge Anderson said there is general agreement that the will does not incorporate by reference any existing trust instrument. 275 F. 513, 520. Judge Bingham said there is no allusion in the will to an instrument, present or future, of any kind or description. 275 F. 525; and Judge Brown said there is no reference (in the will) to a testamentary paper; but a reference to a fact. 264 F. 360, 367.
I am supported in my opinion, that the trust deed is not a testamentary instrument, by the opinion of Judge Brown in Atwoodet al. v. R.I.H.T. Co. et al., 264 F. 360. In discussing such a claim he said, among other things, "It is a fact, therefore, that Mr. Davis, during his lifetime, had perfected a settlement in trust by the actual deposit of funds, which had been accepted in trust by the Trust Company, upon terms fully communicated to it, and fully instructing it as to the disposition of such funds, during his lifetime and after his decease. None of these acts was testamentary in any sense, nor in any wise affected by the statute of wills. . . . It is clear that evidence as to the trust which Mr. Davis had created during his life . . . is not evidence of any testamentary intention or testamentary act of Mr. Davis, nor is it evidence of any intention of Mr. Davis as to the disposition of that portion of his estate which he did not, before his death, settle in trust. It is evidence merely of what he had done with other property. The only testamentary expression of what he wished done with his *Page 291 residuary estate is found in his will." Judge Bingham of the Circuit Court of Appeals, First Circuit, considering the same case 275 F. 513, was also of the opinion that the trust deed was not testamentary as to the residue of Mr. Davis' estate. He said: (p. 525) "Now let us look at the trust deed as it existed when the codicil was made and later when Mr. Davis died, and see whether it refers to the residue under the will or in any way undertakes to dispose of that residue. It can be stated without fear of contradiction that the trust deed never at any time or in any way referred to the residue of the estate under the will. Hence, it is not even arguable that Mr. Davis intended to dispose of the residue under his will by the trust deed. As the trust deed does not undertake to dispose of the residue of Mr. Davis' estate, it is of no consequence whether that instrument, in the disposition of the inter vivos trust fund, is or is not a testamentary instrument. It is not, and cannot be, as to the residue under the will, for it does not undertake to dispose of it. It simply disposes of the trust fund deposited by the donor with the trustee during the donor's lifetime, and, under the law of Rhode Island and Massachusetts, would not be testamentary as to its disposition of that fund." It seems to me that this statement is correct, conclusive and unanswerable.
As it is clear that Mr. Davis intended that the inter vivos trust deed should operate only upon the personal property delivered to the trustee by him, and not upon any other property he might leave at the time of his decease, it is not a testamentary instrument and it was not executed animo testandi by him, and should not be admitted to probate.
STEARNS, J., concurs in the dissenting opinion of SWEENEY, J.