William Richardson versus George Morey et al., 18 Pick. 181

Wilde J. The plaintiff claims as one of the children and devisees of Asa Richardson, deceased, and seeks to compel the execution of a trust under his last will and testament. The case depends on the construction of that instrument, the language of which, although in some respects sufficiently clear and definite, is with regard to other questions submitted somewhat obscure. We have, however, endeavoured to ascertain as well as we have been able to do, the intention of the testator, and have adopted what appears to us the best construction, though it is not unattended with difficulties.

The testator was possessed of a large estate, both real and personal, which, after giving an annuity to his mother and making a provision for his wife, he devises in trust to one Amos Cotting, to be by him distributed and divided among the testator’s six children in equal shares ; one third part of two shares to be paid and conveyed to his sons, Asa and Charles, respectively and immediately, they having then arrived at the age of twenty-one years, and one third part to his other sons respectively when they should arrive at the age of twenty-one years, and one third part of his daughters’ shares to them as they should respectively arrive at the same age or should be married, which ever might first happen.

Another third part of each share was to be paid and conveyed to each of his children when they should respectively arrive at the age of twenty-eight years, and the remaining third part was to be paid and conveyed to each of his children when he or she should- arrive at the age of thirty-five years. The general question is, how and in what manner the trustee is bound in equity to execute these trusts.

Before deciding how these trusts are to be executed, a preliminary question is to be settled, namely, whether the present trustee is entitled to exercise all the powers, and is bound by all the trusts, in the same manner as the original trustee would oe entitled and bound had he accepted the trusts. The plaintiff’s counsel contends, that some of the powers given to the trustee designated in the will are personal, implying a special confidence in him, and are not transmissible to the new trustee.

That a power given to a trustee, clearly implying a special confidence in the person clothed with the power, would not be transmissible to a new trustee, is admitted ; but there is nothing in this will which implies any special confidence in the original trustee. The powers given are not mere powers, but are so blended with trusts, that a separation might defeat the intention of the testator, and impair the beneficial purposes of the will. But there is a clause in the will which puts this question at rest, even if any special confidence had been reposed in the trustee appointed by the will.

The will directs “ that if the said trustee should decline to accept the trusts, the judge of probate for the county of Suffolk, or this Court, should appoint some one or more trustee or trustees in stead of said trustee so declining, who is to receive, take and hold the trust property upon the same trusts as declared in the will.” It is said that the will does not expressly authorize the same discretionary powers ; but it is obvious that the word trusts, as here used, and in other parts of the will, was intended to refer to all the trusts, powers and authority created and given by the will.

The powers are blended with and are in nature of trusts, and may be correctly so described. Cole v Wade, 16 Ves. 27; Sugden on Powers, 393. Having thus disposed of the preliminary question, we are next to consider in what manner the trustee is bound to execute the trust. .1. The first ground taken by the plaintiff’s counsel is, that the children are to receive equal portions of the real, and of the personal estate.

The will directs that the children shall each take an equal portion of the estate and property d'evised in trust for them ; and it is argued that, though equality in value might satisfy the terms used, yet they ought to receive a liberal construction, and be held to embrace not only equality in value, but also equality in the kind of property, and that such a division of the property would be most likely to produce the equality intended by the testator. And the language used in other parts of the will, it is argued, favors this construction.

It is said that the words “estate and property,” are several times used in a sense to designate real estate and personal property ; and this meaning of the terms is indicated more plainly by their being used in connexion with the w'ords “ pay and convey.” This argument undoubtedly derives some weight from the clauses in the will referred to, but we think there are other clauses which are more sure indications of the testator’s intention.

By one clause in the will the trustee is directed, in case any building on the trust eatate should be destroyed by fire, to dispose of the land to the best advantage, and to invest the pro ceeds in city stocks ; and by another clause he is authorized if he should deem it best and for the interest of all concerned, to sell and dispose of Barristers’ Hall, no time is limited within which these sales were to be made, but it is clear that they were not expected to be made immediately ; and if the plaintiff’s construction is to be adopted, the trustee might be disabled fully to execute these trusts, for after conveying a part of these estates to the two eldest sons he could not sell and dispose of the whole as directed in the will.

And such a division of the real estate from time to time into small shares would, we think, probably impair the value of the estate and be attended with difficulties ; and therefore such a construction ought not to be adopted, unless the language of the will plainly required it; and it clearly does not, but on the contrary, it appears to us to be sufficiently manifest, that the testator intended that the first payments or distributions to be made to and among the children should be made out of the personal estate, and that afterwards the real estate should be divided and conveyed, but that it was not intended to limit the discretionary power of the trustee so as to compel him to assign to each child an equal share of the personal estate, and an equal share of the real estate ; which would be difficult, according to the manner in which the trust estate is to be distributed.

The design of the testator seems to have been, that the children should have equal shares, and the trustee was to ascertain as nearly as convenient the value of a share, from time to time, and that each of the cestui que trusts was to receive out of the trust property this ascertained value, either in real or personal estate or in both ; and that no further limitation of the discretion of the trustee in making the distribution was intended, excepting that the personal estate should be first distributed.

The trustee, however, is bound to exercise a sound and reasonable discretion, and to make such a distribution of the trust property as to render the shares of the cestui que trusts as equally beneficial to them respectively as may be possible ; and an indiscreet and unreasonable distribution of the property might be controlled in a court of equity. 2.

In the next place, the plaintiff’s counsel insists that it was the duty of the trustee, immediately after the probate of the will, to divide and set apart the several shares of the children, to be held by him in trust and in severalty for the separate use of each, until they should be paid and conveyed as directed in the w:'l. But there is no direction to this effect in the will, nor can we gather from the language of the will that this was the intention of the testator.

It is true, he speaks of the children’s shares, and parts of shares, and the income of their shares, but he does not speak of their divided shares, and it is obvious, we think, that the passages in the will where these expressions are used, refer to the undivided shares of the children in the whole property ; for when the trustee is to pay and convey a third of a share, the value at the time is to be ascertained by the trustee as nearly as conveniently may be. This direction is wholly inconsistent with the supposition, that the shares were before that time to have been divided.

It is said that the immediate division of the property into shares would best effectuate the intention of the testator as to equality in the distribution ; but how is the equality of the shares when set apart, to secure an equality in the distribution ? The relative value of the shares would still be exposed to fluctuation, and it would seem that the longer the shares are thus exposed, the greater might be the inequality in the final distribution. The truth is, there is no possible method in which the trust fund can be distributed in pursuance of the will, which can secure the perfect equality of the shares.

From these and other considerations before suggested in relation to the first question, we are satisfied that it was not the intention of the testator that the trust property should be imme diately divided into shares, but that it was to remain in the hands of the trustee to accumulate for the general benefit of all the children until distribution should be made as directed in the will. 3. The third question is, whether the plaintiff is now entitled to his share in the remainder of the bank stock, the income of which is payable to the widow ; and in the remainder of the moiety of the household furniture.

It is said, that but for the declaration of trust the children would have a vested interest in this property which might be sold and disposed of by them before it vested in possession. Admitting this, still it would by no means support the plaintiff’s claim. It is not necessary, therefore, to consider the question, whether the plaintiff’s interest is vested or contingent. The only question is, whether he is now entitled to possession of the property or of its value ; and most clearly he is not. The trustee is to hold the bank stock during the life of the widow, and to pay over to her the income and dividends.

She also has a life estate in the moiety of the furniture, and the legal estate vests in the trustee. He, therefore, cannot distribute the property among the children until after her death ; and he is not authorized to sell the remainder and convert it into money. The will, on the contrary, expressly directs, that after the decease of the widow the trustee shall hold the bank stock and receive the dividends which may afterwards accrue thereon, upon the same trusts as are declared as to the residue of the trust property.

But of necessity there can be no dis tribution of these dividends until after the death of the widow. If that event should happen before the final distribution of the other property, the dividends of course would fall into the general fund, and be divided in the same manner as is directed in relation to the residue of the estate ; but if the whole residue should be distributed before the death of the widow, then a separate distribution is to be made on the happening of that event. And the same principle applies in respect to the moiety oi the furniture. 4.

The next question relates to the plaintiff’s claim to his share of the interest on the trust fund, which had accumulated nefore he arrived at the age of twenty-one years. The defendants’ counsel contends, that as only one third part of the principal is now to be paid, the plaintiff is only entitled to the same share of the interest or income. This depends on the construction of the will.

The trustee, in the first place, is directed to appropriate such portions of the interest of the minor children’s shares respectively as may be necessary for their support until they arrive at full age, and then to pay over to them respectively their shares of the interest then accumulated.

If the word “shares ” is here used in the same sense as it is used in other parts of the will, there can be no question that the plaintiff’s construction of the will on this point is correct; for in other parts of the will, the word share is uniformly used to designate a child’s whole portion in the estate; and the presumption is, that the word was used in the same sense in this clause of the will. There is nothing to rebut this presumption to be found in the will, but much to support it.

The will directs, that after the children shall respectively arrive at the age of twenty-one years the trustee shall pay over to each child the interest, income, and dividends of the trust property as the same shall accrue, until the principal and property shall be paid and conveyed as directed by the will ; but there is no direction that any part of the interest and income which had accumulated during the minority, should be paid to them at any other time except on their arrival at full age ; and this shows conclusively, as we think, that the whole accumulated interest and income of each share should be then paid. 5.

The remaining question is, whether the third part of Asa junior’s share, which was payable but not paid over to him in his lifetime, with the interest and income which had accrued, is now to be paid over to his administrator, or falls into the trust fund, for the benefit of the other children.

The words of the will are, “ that all the trust property be longing to each child, not paid or conveyed to him or her by my said trustee before his or her death, shall be held by my said trustee upon the same trust before declared, for the benefit equally of the surviving children.” By the literal construction of this clause in the will, this part of the trust fund would undoubtedly be held by the trustee for the benefit of the surviving children ; but we do not think that such a literal construction would agree with the intention of the testator.

The trustee is directed to pay over to Asa one third part of his share immediately after the testator’s death ; and he must have supposed that this would be paid accordingly. The clause recited, therefore, cannot reasonably be supposed to refer to this portion of the trust property in which Asa had an absolute, vested interest. It could not be the intention of the testator, that this interest should be devested by any neglect of duty in the trustee in not paying over the amount due, or any neglect of Asa in not calling for it immediately.

Some time would be re quired to prove the will, and to ascertain the value of the shares, and if in the mean time Asa had died, it could not, we think, be intended that thereby his estate should be defeated. And if there was time sufficient before his death to have ascertained the value of the shares and that was not done, the neglect must be imputed to the trustee, for he alone could ascertain the value, and it is a clear principle, that no neglect of a trustee can impair or prejudice the rights of a ceslui que trust.

We think, therefore, that the administrator of Asa’s estate is entitled to the remaining sum due to make up a third part of his share, and upon the same rule of construction the administrator is entitled to a share of the "interest which had accrued and was payable on Asa’s share before his death, if any had so accrued and was payable. The will directs that the interest and dividends should be paid over as they accrued ; we do not, however, think the trustee would be bound to distribute every small sum received immediately, but no unreasonable delay ought to be allowed.

If the trustee had received interest and income which ought to have been distributed before the death of Asa, to that dis tributive share his administrator is now entitled.