delivered the opinion of the court:
The estate of a trustee in the real estate which is the subject matter of the trust is commensurate- with the powers conferred by the trust and the purposes to be effected by it. The trustee acquires whatever estate, even to a fee simple, is needed to enable him to accomplish the purposes of the trust. (Preachers’ Aid Society v. England, 106 Ill. 125; West v. Fitz, 109 id. 425; 27 Am. & Eng. Ency. of Law, 110-113, 117.) When the trustee is directed and empowered to convey the land to the objects of the settlor’s bounty, the legal estate necessarily vests in the trustee. If a trustee is required to grant a fee, the fee must be conferred upon him. (Kirkland v. Cox, 94 Ill. 400; Preachers' Aid Society v. England, supra.) Where, as here, the trustee is required to convey the title to the beneficiaries on the happening of a certain event, the trust is not a passive or dry trust and the Statute of Uses does not operate to vest the title in the usee. (Kirkland v. Cox, supra; Preachers' Aid Society v. England, supra.) The legal title to the premises here involved rested in the trustee. Upon her death the title did not remain in abeyance. Courts of equity may be vested with the power to appoint a successor to a trustee in whom title to lands may rest, but such title cannot descend to and vest in the courts of equity. The title held by the trustee in this instance, upon her death passed to her legal heirs, subject to the trust. (27 Am. & Eng. Ency. of Law, 92.) Such heirs were necessary parties to any proceeding instituted for the purpose of divesting them of such title. Skiles v. Switzer, 11 Ill. 583.
The allegations of the bill are insufficient to justify a decree vacating the deed. The trust was a voluntary settlement for the benefit of the settlors during their natural lives, with remainder in fee to and for the benefit of their heirs. It was perfectly created, so that nothing remained to be done by the settlors to give it effect, and it may be enforced without regard to the presence or absence of any further consideration. Massey v. Huntington, 118 Ill. 80.
The bill alleges that the grantors did not know the trust deed did not contain a revoking- clause. But there is no averment they desired or expected such a clause to be inserted, or that accident, mistake or fraud in any way intervened. It is not indispensable to a voluntary settlement it should contain a power of revocation. “There is no such rule that the want of a power of revocation in a voluntary settlement, or the want of advice as to the insertion of such a power, will afford ground, in equity, for the donor to set aside such a settlement, but that the same is a circumstance, and a circumstance merely, to be taken into account in determining upon the validity of the settlement, and of more or less weight, according to the facts of each particular case.” Finucan v. Kendig, 109 Ill. 198; Patterson v. Johnson, 113 id. 559.
The allegation the grantors did not comprehend the legal effect of the instrument furnished no reason for vacating- it. The bill does not allege the legal effect was different from what it was intended it should be, or that the grantors understood it would have any different effect from that which the law would give it. There is no averment of mistake, misapprehension or misunderstanding as to the purport and effect of the deed. The court, however, found the deed had not been delivered. The decree was entered upon proofs taken and reported by the master and proofs heard in open court. There is no certificate of evidence, hence we cannot know what testimony was produced orally. In such state of case we must assume the findings of the court were supported by adequate proof. Waiving the application of the rule that the allegations of a bill and the proof must correspond, and that a party is not entitled to relief, though the evidence may warrant it, unless there are averments in the bill to which the evidence may apply, we are of opinion the decree can not be supported on the ground there was no delivery of the deed. When a decree in chancery granting affirmative relief is brought into review on error or appeal, the rule is the decree must be supported by testimony preserved in the record or by the facts appearing- from specific findings of fact recited in the decree. (First Nat. Bank v. Baker, 161 Ill. 281.) The decree recites that the deed was prepared by an attorney who was acting on behalf of the trustee, and as to the delivery thereof the facts are found and recited, as follows: “Said attorney, without explaining th^ contents of the said deed or the legal effect thereof, delivered said deed to complainant John-T. Lawrence, who, together with his wife, Frances Lawrence, executed and acknowledged the same before a justice of the peace, and after said deed had been signed by the trustee, Eliza A. Lawrence, with whom both of said complainants were then living, complainant left said deed with the recorder of Logan county to be recorded, under the instructions and directions of said, attorney.”
The law presumes much more in favor of the delivery of deeds in case of voluntary settlements than in ordinary cases of bargain and sale. (Union Mutual Life Ins. Co. v. Campbell, 95 Ill. 267; Williams v. Williams, 148 id. 426.) No formal delivery to the grantee or trustee in person is necessary. The intention of the party is the controlling element. (Walker v. Walker, 42 Ill. 311.) Here it appears from the findings of the court the deed was prepared by an attorney who was acting for the trustee, who, after it was prepared and-was ready to be executed, handed it to the defendant in error John T. Lawrence; that said defendants in error then executed and acknowledged it; that it was then signed by the trustee, and that the defendant in error John T. Lawrence, by the instruction and direction of the, attorney of the said trustee, took the deed to the recorder of deeds and left it with him to be recorded. The deed was duly spread of record by the proper recorder of deeds two days after it had been executed and more than twenty-eight years before the bill to cancel it was exhibited. No fact is recited tending to show it was not the intention'of the grantors to deliver the deed, and in such state of case the act of the grantors in delivering the deed to the recorder to be recorded, in obedience to the directions of the trustee through her attorney, was equivalent to the manual delivery of the deed to the trustee. “Leaving the deed to be recorded will be a good delivery if done with the knowledge of the grantee, and with the evident or expressed intention that the title is to pass to the grantee.” 5 Am. & Eng. Ency. of Law, 447; Weber v. Christen, 121 Ill. 91.
The decree must be reversed and the cause remanded.
Reversed and remanded.