Flanders v. Blandy. other, for if a trust was created, the possession of the bonds and the legal title thereto, remained in the trustee. In that case there was no delivery to the donee, and consequently no valid executed gift, while if there was a valid gift, the possession and legal title must have been transferred to the donee, and no trust was created." It is manifest that there was an inchoate gift of the bonds by the decedent which he never completed; but we find nothing that can be construed into a declaration that he held them in trust, or that he regarded himself as standing, in reference to the bonds, in a fiduciary relation to his daughter. If a gift is imperfect at law, and for want of consideration cannot therefore be enforced, a court of equity will not aid the donee by construing it into a declaration of trust. In Milroy v. Lord, 4 De Gex. F. & J. 264, in referring to the modes of making a voluntary settlement, the principle is announced that if the settlement is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust. The owner of property that is meant to be donated, may at the last moment before delivering it change his mind, and in such case equity will not virtually divest him of his property! by creating a trust in favor of a volunteer. By the civil law, however absolutely a donation inter vivos might have been made, yet, if the object of the donor's bounty proved ungrateful, he was permitted in certain specified cases, to revoke the donation. But by the common law, when the gift is perfect by delivery and acceptance, it is then irrevocable, and hence, until there is a final delivery of the subject, the donor will continue vested with the title. The leading case on this point is Antrobus v. Smith, 12 Ves. Jr. 39, in which Gibbs Crawford made the following indorsement upon a receipt for one of the subscriptions in the Forth and Clyde Navigation: "I do hereby assign to my daughter, Anna Crawford, all my right, title and interest of and in the inclosed call, and all other calls, of my subscription in the Clyde and Forth Navigation." As this was Flanders v. Blandy. not a legal assignment, and was therefore without effect as a gift, it was argued that the father meant to make himself a trustee for his daughter of the shares. But Sir W. Grant, M. R., observed, "Mr. Crawford was not otherwise a trustee than as any man may be called so who professes to give property by an instrument incapable of conveying it. He was not in form declared a trustee; nor was that mode of doing what he proposed in his contemplation. He meant a gift. He says he assigns the property. But it was a gift not complete. The property was not transferred by the act. Could he himself have been compelled to give effect to the gift by making an assignment? There is no case in which a party has been compelled to perfect a gift, which, in the mode of making it, he has left imperfect. There is locus penitentiæ as long as it is incomplete." In Jones v. Lock, Law Rep. 1 Ch. App. Cas. 25, a check for 900l. was put by the father into the hands of his child, signifying in strong terms his intent to give in præsenti the check to the child. He subsequently took the check and locked it up, saying he should keep it for the child, and died the same day. A bill was brought in behalf of the child against his father's representatives, to enforce his interest in the check as a trust. Lord Chancellor Cranworth said: "This case turns on the very short question, whether the father intended to make a declaration that he held the property in trust for the child, and I cannot come to any other conclusion than that he did not. * * * * It was all quite natural, but the father would have been very much surprised if he had been told that he had parted with the 9007., and could no longer dispose of it; and it was not his meaning to enable the child, by his next friend, to bring an action of trover for the note." It is obvious and well settled by authority that before the owner can be held as a trustee for the benefit of a mere volunteer, there must be a distinct, perfect and unequivocal declaration of trust. There should be an expression of an intention to become a trustee, not that the owner should use technical words or language, but he should declare in unmistakable terms that he means to stand in a fiduciary Flanders v. Blandy. relation to the object of his bounty. The record shows no such declaration by the decedent, and his acts were wholly inconsistent with the idea of making himself a trustee. There are no reasonable grounds for concluding that when he invested the bonds in his business without the knowledge of his daughter, he deemed himself as acting under a trust which he had assumed and declared. If in the alleged purchase and setting apart of the bonds as a gift to his daughter, and assenting to their being left in his custody, he had made use of words expressing a gift which was never perfected by delivery, such words would have shown an intention to give property over to another, and not to retain it in his, the donor's, hands for any purpose, fiduciary or otherwise. Richards v. Delbridge, Law. Rep. 18 Eq. Cas. 11, 15. In the case last cited, Delbridge, who was possessed of leasehold business premises and stock in trade, purported to make a voluntary gift in favor of his grandson, E. B. Richards, who was an infant, and assisted him in his business, by the following memorandum signed and indorsed on the lease: "This deed and all thereto belonging I give to E. B. Richards from this time forth, with all the stock in trade." The lease was then delivered to the mother of the grandson in his behalf. It was held by Sir G. Jessel, M. R., that there was no valid declaration of trust of the property in favor of the grandson. In the same line of decision are numerous other authoritative cases, but we deem it unnecessary to refer to them. The court of common pleas and district court did not, in our opinion, err in sustaining the demurrer to the plaintiff's petition, and the judgment of those courts should be affirmed. Judgment accordingly. Ravenna v. Pennsylvania Company. RAVENNA v. PENNSYLVANIA COMPANY. Municipal corporations—Power to compel railroad company to maintain watchman at street crossing. 1. Municipal corporations, in their public capacity, possess such powers and such only, as are expressly granted by statute, and such as may be implied as essential to carry into effect those which are expressly granted. 2. A municipal corporation has not the power, by ordinance, to compel a railroad company to maintain, at a street crossing within the corporate limits, a watchman, for the purpose of giving warning to passers-by of the approach of trains. (Decided April 26, 1887.) ERROR to the Circuit Court of Portage County. An ordinance was passed by the council of the village of Ravenna, providing that on any street of the village crossed by the track of any railroad company, when the council shall deem it necessary to require the company to provide protection against injuries to persons and property by the keeping of a watchman, whose duty it shall be to stop all teams and foot passengers by the continuous exhibition of a flag by day and a light by night, whenever a train in motion shall have approached within five hundred feet of such crossing, the council may, by resolution, so declare, and may direct the company, within a time specified in the resolution, to erect and maintain a sufficient safeguard at such crossing, specifying the kind; and that any company neglecting to comply with the resolution shall suffer a penalty of fifty dollars, etc. Subsequently, the council passed a resolution requiring the defendant company to place a watchman at the point where its tracks cross Main street in the village. The company refused to comply. Action was commenced by the village before the mayor to recover a penalty of fifty dollars. This was appealed to the common pleas, where a demurrer to the petition was sustained. On error, this holding was affirmed by the circuit court. Ravenna v. Pennsylvania Company. P. B. Conant, for plaintiff in error. The power of council to pass the ordinance in question is either expressly granted or clearly inferred. Without such express grant or clear inference, I concede council to be without such power. It has no inherent right of legislation. Collins v. Hatch, 18 Ohio, 523; Bloom v. Xenia, 32 Ohio St. 465; Minturn v. Larue, 23 How. (U. S.) 435. Such power is conferred by section 1692, subdivisions one and three, of the Revised Statutes. The police power of the state is vested in the legislature, and that power can be delegated to municipal corporations. Cin. H. & D. R. v. Sullivan, 32 Ohio St. 158. The power to protect, by ordinance, the property of the corporation and the property and lives of its inhabitants, is expressly granted. Revised Statutes, section 1692, sub. 1; and to prevent injury from any thing dangerous, sub. 3. It will not do to say that a railroad company is exempt from the power of police regulation because it is a corporation and has been authorized to run dangerous machinery through the town. It stands on no higher plane than any other citizen. It becomes a citizen of Ravenna (B. & O. R. Co. v. Cary, 28 Ohio St. 208), and like all other citizens must be subject to the general laws of the municipality. Cin. H. & D. R. Co. v. Sullivan, supra. Railroad companies cannot have faculties conferred on them for their own convenience which they may wield to deprive others of acknowledged rights. Marshall v. B. & 0. R. Co., 16 How. (U. S.) 327; Cleveland, Col. & C. R. Co. v. Keary, 3 Ohio St. 204. The fact that the legislature has expressly authorized municipal corporations to limit the speed of trains and to compel railroad companies to light their tracks (Rev. Stats., sections 2494, 2500) does not operate to exclude the exercise of the broader and more general grant of power conferred by section 1692 of the Revised Statutes. The ordinance in question was a reasonable exercise of the power granted by the latter section. |