dissenting:
At the time when Butler executed to Bieoll and Bushnell the trust deed of April 1st, 1842, it is admitted that the property in question was was held as personalty. Butler could not change its character except with the consent of the cestuis que trust. The deed to Bicoll and Bushnell, as trustees, gave them the legal title, but did not reconvert the property into realty, unless that deed was made with the consent of the beneficial owners. In the instrument of April 25, 1842, they declare the trusts, and recite that the deed was executed at their request. In the case of Nicoll v. Ogden, 29 Ill., 389, the court held that the deed created a naked trust, vesting the legal title in the grantees to hold simply for the use of the cestuis que trust, and subject to a demand by them at any time for a conveyance, and thus creating in them an equitable estate of inheritance subject to dower. It was further held that the recital of consent on their part to this conveyance, in the instrument of April 25, 1842, is to be considered as evidence of consent to the making of the deed in the precise form in which it was drawn, that is, to the creation of a naked trust by which the title was merely to be held for the benefit of the cestuis que trust, and with no other duty than to convey it in accordance with their directions. Since the hearing of that case, the deposition of the trustee, Bushnell, has been taken, and in my opinion it is shown by his evidence, viewed in connection with the character of the enterprise, from its inception, the reasons for the conveyance to Bushnell and K"icoll growing out of the pecuniary embarrasments of Butler, and the declaration of trusts embodied in the instruments of April 12th and 25th, that there was no intention on their part to change the character of the property, and that the recital of their consent to the deed is to be construed as a consent that Butler should convey the legal title to be held by the new trustees, subject to the trusts already existing, and to such as might be specified in connection with the change of title, and as a part of the same transaction. He testifies that the deed “first came under his observation about the 9th of April,” and he, with his co-trustee, then executed the declaration of trust, bearing date the 12th of the same month. He does not say specifically whether this declaration was executed on the suggestion of the trustees or of the cestuis que trust, but he says it was all one transaction, and I can entertain ho doubt that, as the deed left the trusts wholly undefined, the instrument of the 12th defining them was intended to be contemporaneous with the deed and, as between the parties and privies, is to be considered as a part of the deed. But the trustees, for their own protection, desired a still further specification of the trusts, and at their suggestion the cestuis que trust executed the instrument of the 25th of April, differing in no substantial particular, as to the character of the trusts, from the instrument of the 12th, but important to the trustees, because executed by the cestuis que trust, while the instrument of the 12th was executed only by the trustees. Bushnell swears that he refused to accept and act under the trust until this last instrument was executed, and that the three instruments were all one transaction.
I think, then, in brief, that the deed from Butler to Bushnell and Hicoll could not change the character of the property from personalty back to realty without the consent of the beneficiaries; that their consent was given merely to the making of a deed, leaving the trusts undefined, with the exception that the existing trusts should remain in force unless modified by instruments to to be executed in connection with the deed, and as a part of it; that these instruments are to be regarded as a part of the deed, and that they leave the property stamped with the same character which it had before. The property having once acquired the character of personalty, it could only be reconverted into realty by acts on the part of the owners manifesting a clear intent to that end. Viewing these instruments in connection with the evidence of Bushnell, I can find in them no evidence of such intent taking immediate effect. The agreement that the property shall be divided, if practicable, within six months, I regard as an agreement that it shall be so converted into realty within that time by means of a partition, if practicable, but not as re-converting it, eo instantl. In my opinion, the decree of the court below should be affirmed.