in position to complain of its use for a public street. See Fagan v. City of Chicago, 84 Ill. 227. We think the decree of the court below dismissing the bill should be affirmed, with costs. MCGRATH, C. J., GRANT and HOOKER, JJ., concurred. LONG, J., did not sit. 106 572 111 296 106 572 123 260 106 572 134 3331 e134 $336 106 572 147 515 106 572 149 +482 O'NEIL v. GREENWOOD. WARNER v. SAME. 1. TRUSTS-HOW CREATED-DONOR AS TRUSTEE. The creation of a trust does not depend upon the use of a par- 2. SAME-EXECUTION OF CONVEYANCE-DECLARATION OF TRUST. 8. SAME-LIFE USE BY Donor. A donor may become a trustee for the donee, though retaining a life use of the trust fund. 4. SAME-ACCEPTANCE BY DONEE. Where a gift, otherwise complete, is beneficial to the donee, an acceptance will be implied. 5. SAME. The owner of certain notes and certificates of deposit inclosed the same in separate envelopes, together with bills of sale thereof to his child and grandchild, and indorsed upon the envelopes the names of the respective assignees. At the time of the transaction he stated that he should, during his life, collect the interest accruing on the obligations, but that the principal sum, upon his death, was to be the property of the persons named, and that the papers should then be delivered to them. He retained the instruments during his lifetime, collecting the interest thereon, in accordance with the intention so expressed; but he frequently declared that he held the notes and certificates in trust for such persons, and at his death the papers so set apart, or obligations of equal value, were found to be intact. Held, that a trust was created in the parties named, which was enforceable in equity. 6. WITNESSES — COMPETENCY DECEDENT. In a suit prosecuted by the assigns of a deceased person against the personal representatives of his estate, an heir at law of the decedent, although not a party to the record, is disqualified by 8 How. Stat. § 7545, from testifying to matters which, if true, must have been equally within the knowledge of the deceased. MATTERS WITHIN KNOWLEDGE OF Appeals from Ionia; Moore, J., presiding. Submitted June 13, 1895. Decided October 1, 1895. Separate bills by Lavalette O'Neil and Nancy Calista Warner against Levi M. Greenwood, administrator of the estate of Lewis Willey, deceased, and others, to enforce a trust. From a decree for the complainant in each case, defendants appeal. Affirmed. Vernon H. Smith (W. W. Mitchel, of counsel), for complainants: No particular form of words is necessary to create a trust. It may be inferred from the facts and circumstances surrounding the transaction. If such a purpose is shown on the part of the donor, that is sufficient. Perry, Trusts. § 112; Ellis v. Secor, 31 Mich. 185; Cummings v. Corey, 58 Mich. 502; Chadwick v. Chadwick, 59 Mich. 92; Martin v. Funk, 75 N. Y. 141; Gerrish v. Savings Institution, 128 Mass. 161; Loring v. Palmer, 118 U. S. 321. Higman An acceptance by the beneficiary is presumed. v. Stewart, 38 Mich. 513; Bostwick v. Mahaffy, 48 Mich. 342; Dunlap v. Dunlap, 94 Mich. 11; De Levillain v. Evans, 39 Cal. 120; Moses v. Murgatroyd, 7 Am. Dec. 484 (note). A trust may be created in personalty by parol. Calder v. Moran, 49 Mich. 14; Hooper v. Holmes, 11 N. J. Eq. 122. And trusts in personal property may exist when the property is constantly changing; i. e., the specific property may change, but the fund remains subject to the trust. Leland v. Collver, 34 Mich. 423. In the case at bar a valid trust was created, although the donor was to have the interest on the fund during his life, and although possession of the bills of sale was retained by him. Ellis v. Secor, 31 Mich. 185, and cases cited; Leland v. Collver, 34 Mich. 418; Harris v. Hopkins, 43 Mich. 272; Chadwick v. Chadwick, 59 Mich. 87; Edinger v. Heiser, 62 Mich. 611; Love v. Francis, 63 Mich. 181, 195; Beardslee v. Reeves, 76 Mich. 661; Bunn v. Winthrop, 1 Johns. Ch. 329; Martin v. Funk, 75 N. Y. 134; Stone v. Hackett, 12 Gray, 227, 231; Davis v. Ney, 125 Mass. 590; Gerrish v. Savings Institution, 128 Mass. 159, 161; Scott v. Savings Bank, 140 Mass. 157; Tillinghast v. Wheaton, 8 R. I. 536; Williamson v. Yager, 91 Ky. 282; Egerton v. Carr, 94 N. C. 648. A. A. Ellis (Charles P. Locke, of counsel), for defendants: Neither the bills of sale nor the negotiable instruments having been delivered, the gift was imperfect (2 Kent, Com. 438-9; Duncombe v. Richards, 46 Mich. 166; Love v. Francis, 63 Mich. 190; Supervisors v. Auditor General, 68 Mich. 665; Wilson v. Carpenter, 17 Wis. 512; Dougherty v. Moore, 71 Md. 248; Sessions v. Moseley, 4 Cush. 92; Cummings v. Bramhall, 120 Mass. 552; Nutt v. Morse, 142 Mass. 1; Allen v. Polereczky, 31 Me. 338; Hanson v. Millett, 55 Me. 184; Augusta Savings Bank v. Fogg, 82 Me. 538; Craig v. Kittredge, 46 N. H. 57; Curry v. Powers, 70 N. Y. 212; Young v. Young, 80 N. Y. 422; Bunn v. Markham, 7 Taunt. 224; Smith v. Dorsey, 38 Ind. 451; Mims v. Ross, 42 Ga. 121; Bond v. Bunting, 78 Pa. St. 210; Basket v. Hassell, 107 U. S. 602); and such a transfer, inoperative for want of delivery, will not be sustained as a declaration of trust (Curry v. Powers, 70 N. Y. 212; Young v. Young, 80 N. Y. 423; Beaver v. Beaver, 117 N. Y. 428; Wadd v. Hazel ton, 137 N. Y. 215; Flanders v. Blandy, 45 Ohio St. 108; Cummings v. Bramhall, 120 Mass. 552). The cases of Richardson v. Richardson, L. R. 3 Eq. 686, and Morgan v. Malleson, L. R. 10 Eq. 475, relied upon by complainants' counsel as sustaining a contrary doctrine, and cited in the opinion in Ellis v. Secor, 31 Mich. 191, have been distinctly overruled. Milroy v. Lord, 4 DeGex, F. & J. 264; Warriner v. Rogers, L. R. 16 Eq. 340; Richards v. Del bridge, L. R. 18 Eq. 11; Heartley v. Nicholson, L. R. 19 Eq. 244. MCGRATH, C. J. Lewis Willey, grandfather of Lavalette O'Neil and the father of Calista Warner, died suddenly, May 11, 1893, aged 77 years. He had, in 1891, been troubled with la grippe. In the early part of January, 1892, he had called in a physician, and in the course of that illness he was informed that he was liable to sudden death. Prior to January 29, 1892, he had conveyed to his children all of his real estate. He had three grandchildren, Vernon and Fay Willey, sons of Lewis Bradley Willey, and Lavalette O'Neil. He had conveyed a farm, estimated to be worth in the neighborhood of $4,000, to Vernon and Fay Willey. Webber & Ruel were his bankers. On the date last named, Willey called in Mr. Sherwood (who had at other times prepared papers for him) and Mr. Ruel, and in their presence opened a tin box which had been kept in the vault at the bank, and exhibited several certificates of deposit issued by Webber & Ruel, amounting in the aggregate to over $2,500, and a number of promissory notes aggregating upwards of $2,500. He then stated that he had made provision for his sons and daughters, except one daughter, Calista Warner, and had provided for the Willey grandsons, but had made no provision for Lavalette O'Neil, and desired to equalize the distribution of his property by giving to Calista Warner certificates of deposit, amounting to $1,800, and to Lavalette O'Neil notes amounting to $2,200. He then selected out $1,800 in certificates of deposit, and $2,200 in notes. A bill of sale was prepared by Sherwood, transferring to Lavalette O'Neil the notes so selected out, describing specifically said notes, which Willey executed. The notes and bill of sale were then placed in an envelope; Lavalette O'Neil's name was written thereon by Sherwood, at Willey's direction; and the envelope was placed in the tin box. The same course was pursued as to the certificates of deposit. A bill of sale to Calista Warner was prepared, executed, and, with the certificates, placed in an envelope, on which was written her name; and the envelope, with contents, was then placed in the tin box. Willey explained to both Sherwood and Ruel that he should, during his life, collect the accruing interest upon the notes and certificates, but that the principal, upon his death, was to be the property of the parties named, and in case of his death at any time the packages were to be delivered as addressed. At the same time, Sherwood prepared, and Willey executed, the discharge of a mortgage which Willey held against another intended beneficiary. Willey afterwards deposited the tin box in the bank vault. It contained other notes, certificates, and papers. Willey retained the key, and from time to time, until his death, took papers from it, and returned the same, or others, to it. He collected the interest on the notes as the same became due. At the time of his death there had been no material changes as to the notes, but, although the amount in certificates of deposit was $2,900, all were dated after January 29, 1892. Willey had talked freely, up to the time of his death, of this transaction, to Sherwood, to Mr. Warner (the husband of Calista Warner), and to others. He had taken Warner to the bank, explained to him the transaction, exhibited to him the papers, and Warner had listed the papers. On that occasion he said to Warner, referring to the notes transferred to Lavalette O'Neil: "I want you to know that these are Lavalette's. I only hold them in trust for him." On another occasion, Willey, on learning that a piece of land adjoining Warner's farm was for sale, went to the bank, and procured a draft on Detroit for $1,800, and |