Nicoll v. Miller

Citations

• 37 Ill. 387

Syllabus

<p>I. Real estate and personalty—where lands assume these distinctive characters. Where real estate is purchased by several, and procured to be conveyed to one of the number to be held by him in trust for all, for purposes of speculation and sale, upon such terms that the cestuis que trust have only a right to the proceeds thus arising, the right of the cestuis que trust is a personal right—the property is personal property.</p> <p>But if the trustee thus holding the title, convey the property to others of the beneficiaries, by consent of all, simply as “ trustees,” without declaring any specific trust, the effect of such conveyance will be to create 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. The . property thus becomes reconverted into its original character of real estate, creating in the cestuis que trust an equitable estate of inheritance.</p> <p>2. Dower—to what character of estate it attaches. The equitable estate of inheritance so created in the cestuis que trust becomes at once subject to the dower right of their wives.</p> <p>3. Same—how such right may he divested. The inchoate right of dower having once attached, it cannot be divested in any mode except that prescribed in the statute. No subsequent declaration of a specific trust by the cestuis que trust, can restore the property to its former condition of personal property so as to affect the right of dower, nor by relation, change the character of the conveyance by means of which the right originally attached.</p> <p>4. Trusts—-effect of a failure of one of several trustees to act. Where a conveyance is made to several, in trust, the failure of one of the co-trustees to act, will not defeat the conveyance.</p> <p>5. Same—equity will preserve the trust. In such a case, equity will entertain jurisdiction for the purpose of preserving the trust.</p> <p>, 6. Mr. Justice Lawrence diss