delivered the opinion of the court:
It is agreed that the facts in this case are the same as those appearing in the case Nicoll v. Ogden, 29 Ill., 323, except so far as they may be rendered different by the deposition of Btishnell, which has been taken since that case was decided. After carefully reviewing the grounds of that , decision, we see no reason to change the views there expressed. We will now proceed to an examination of Bushnell’s evidence for the purpose of ascertaining whether it should lead us to a different result in this case. In that case we held that by the deed of April 1st, 1842, from Butler to Mcoll and Bushnell, to be held in trust for the beneficiaries, this real estate, and which had been previously regarded as personalty by the parties in interest, was changed from its artificial character of personal, to that of its ordinary condition of real estate, with all of its incidents. That by that conveyance Mcoll and Bushnell took the legal title in fee, simply as trustees, with no specific trusts declared, and that such a trust vested in the beneficiaries an equitable estate of inheritance for their several portions. That under this deed, the law implied the duty of the trustees to convey, on demand, to each cestui que trust his share, and that on a refusal a court of equity would have executed the trust by compelling a conveyance.
It was also held, that the beneficiaries were hound by that conveyance, and manifested their assent to it, as is shown by their deed of the 25th of April, which recites that the deed of the 1st of April was made by Butler to Mcoll and Bushnell at their request. It was also held that the cestuis que trust, by having that deed executed, manifested the intention to, and did thereby, change the entire fund into an equitable estate of inheritance in these lands. Bor could they by any subsequent declaration of trust, in any degree affect the rights of third persons, which may have attached after that conveyance was made, and before the specific trusts were declared. And under the law, married women became entitled to dower, in land of which the husband became seized of such an estate during coverture, and could not be deprived of that right except in the mode prescribed by the statute. And that Mrs. Bicoll thereby became vested with the inchoate right to dower in the premises, and that her right was not barred by the declaration of trusts by the deeds of the 12th and 25th of April.
We also held that the deed of the trustees of the date of the 12th of April, specifying the trust upon which they held the property, neither enlarged nor limited their powers or duties. That they, after its execution, held the property precisely as they did under the deed of April 1st.
Bushnell, however, testifies that he was unwilling to accept the trust, and required the beneficiaries to make a declaration of such specific trusts as he was willing to undertake to execute. But he also says that the deed of the 1st and that of the 12th of April, were in his possession the greater portion of the time after they were executed until that of the 25th was made. This has very much the appearance of a delivery and acceptance of the deed. And we do not see how he could have had any objections to accept the trust under the deed of the 1st of April, as it could in no event impose any labor, expense or liability, except to convey when required to each of the beneficiaries. Tinder it, we can see no reason for the discussion in reference to the trust created by the deed of April 1st. Hor does he speak of any proposition ever having been made that Butler should make a further or different conveyance.
But when the question of sales came to be discussed, then we can readily see, that a person residing so far from the property of so large a value would be inclined to object to making sales in person. And when it is perfectly obvious that the care, attention and labor of the trust would be large, we can see that he would hesitate to undertake it in person. Hence the declaration of the trust of the 25th of April authorized them to perform the trust through attorneys in fact. And it is in reference to this deed that it would seem the discussion would most probably arise, and under which he would object to act, unless it contained some provision which would exonerate him from bestowing his personal attention to the execution of the trust.
He has failed to inform us why he and Hicoll executed the deed of the 12th of April, if they were unwilling to accept the simple trust created by the deed of the 1st. By it they assent to the trust, but are careful to assume no other or greater liabilities than the law imposes. This deed was an unequivocal acceptance of the trust if it was delivered.
lie, however, says tha't he refused to act under the deeds of the 1st and 12th, until that of the 25th was executed. How he says that he was applied to about the 1st of April, to become a joint grantee with Hicoll, for the lands described in the deed from Butler and wife, on the terms then proposed, which was a trust. He also says that he thinks the trust is more fully set out in other papers. This latter declaration, it will be observed, is only an opinion, and he does not say that those terms or conditions were then spoken of, or had been agreed upon. And as he says that it was a matter of discussion, the probabilities are that all that was then agreed upon was, that the property was to be conveyed to them, to hold upon such trusts as might be declared by subsequent agreement. The present opinion of a witness in reference to a matter which had transpired more than twenty years previously must necessarily be indefinite and very indistinct. It must require a memory such as but few men are endowed with, which can, after such a lapse of time, refer to conversations ‘ and agreements with any degree of precision. And when the entire character of a written instrument is to be changed, and apparent rights of importance are to be cut" off, by oral evidence of so ancient a transaction, we should at least act with hesitation, however honest, truthful and respectable the witness. That Mr. Bushnell has given his evidence as he understands and remembers it, with candor and frankness we do not doubt, but we must suppose that his recollection is imperfect. He in his deposition says it is, when interrogated as to other particulars of the transaction.
He says that an effective delivery was not made of the deeds until the 25th of April. As tó the deeds of the 12th and 25th, it is natural to suppose that such was the fact; but he says the deed from Butler to himself and Hicoll had been in their possession from the time it was executed. He says that he means by a delivery, an exchange of the papers after the minds of the parties have met—a consummation of the transaction. What papers would probably be exchanged ? Clearly the deeds of the 12th and the 25th. The grantees already had possession of the deed of the 1st of April. And there is no intimation that it was delivered as an escrow, if such a delivery could be made to a grantee. Butler had executed it at the request of the cestwis que trust, and he must have intended it as a delivery when he placed it in the custody of the grantees, and the beneficiaries must have so regarded it when they had it executed.
We do not see that Hicoll, one of the grantees, ever objected to the trust imposed, or required any conditions before he entered upon the execution of the trust. And a failure of a co-trustee to act could not defeat the conveyance. In such a case, a court of equity would have entertained jurisdiction for the purpose of preserving the trust. Bushnell’s refusal could not have defeated the conveyance and have frustrated the intention of the cestuis que trust.
Again, if it had been the intention of the parties when the deed of the 1st of April was executed to preserve the character of the property as personalty, by continuing it as a trading fund, it is strange that we find no recital of the fact either in the deed of the 12th or 25th. On the contrary we find in both of those deeds a declaration that partition shall be made, if practicable, within six months from that date. We could scarcely expect to find a stronger expression indicating an intention by the beneficiaries to hold it as real and not as personal estate. That declaration would seem almost conclusive, that it was the intention of the parties not to convert the character of the property from real estate which it had acquired by the deed of the 1st of April, again into personalty. It was also provided that the partition should be made amicably by the cestuis que trust or by law. How, previous to the deed of the 1st of April, neither of the cestuis que trust could, by a bill in chancery, have compelled a partition, because, by their previous agreement, these lands were held alone for sale, and all that could have been done was to obtain a decree requiring the execution of the trust by a sale of the lands. But under these deeds and declaration of trust the character of the property was entirely changed by the agreement of the parties, and either one of the cestuis que trust could, at any time after these instruments were made, have compelled a partition in equity.
The remainder of the real estate still belonged to them in equity, and upon their death it would have descended to their heirs, who could, in like manner, have compelled a partition.
The majority of the court are, for these reasons, of the opinion that the case of Nicoll v. Ogden is conclusive of this ease, and that the decree of the court below must be reversed and the cause remanded.
Decree reversed.