Dial v. Dial
| Decision Date | 01 January 1858 |
| Citation | 21 Tex. 529 |
| Parties | GARLINGTON DIAL AND OTHERS v. G. C. DIAL. |
| Court | Texas Supreme Court |
Where the petition alleged that the defendant had possession of property, left in trust for the use and benefit of petitioners, but that he refuses to deliver or pay over said property or the profits thereof, and employed the same for his own use and benefit, a good cause of action is disclosed, for which equity will grant relief under a general prayer, although the specific relief prayed for might not be granted.
A trustee cannot generally be required to divest himself of his trust estate in parts only, by several conveyances to different persons having joint interests in it.
Where an estate is left in trust to become the property of the children of particular persons, the trustee cannot be required to vest the legal estate in the children that have been born, until it be shown that there can be no more children born.
The intention of the testator being lawful must be executed.
Appeal from Harrison. Tried below before Hon. C. A. Frazer.
The facts are stated in the opinion.
M. J. Hall, for appellant.
I. The clause in the will constitutes an executed trust: the defendant the trustee, and the plaintiffs the cestuis que trust. A trust executed is when the party has given complete directions for settling his estate with perfect limitations; an executory trust, where the directions are incomplete and are rather minutes or instructions for the settlement. 1 Mad. Ch. 558; 2 Story, Eq. 983; Neves et al. v. Scott et al. 9 How. (U. S.) 211; same case, 13 How. 273.
II. A trustee is always compelled to convey when there is no reason why the estate should remain in his hands, or unless the object of creating the trust would be defeated by executing it, or compelling the trustee to convey-- as where property is conveyed to a trustee for the benefit of a married woman, and where the rents and profits are to be annually applied by the trustee for her support and maintenance--in such case the trust would be defeated by executing it. Is it so in the case before the court? See Laurens v. Jainey, 1 Spears (S. C.), p. 366; Posey v. Cook, 1 Hill, 414; Dick v. Pitchford, 1 Dev. and Bat. Eq. 480.
P. Murrah, for appellee.
I. These parties cannot jointly or severally define their interest, for other children may be born who will have an interest, nor can a court ascertain or decree the interest of the plaintiffs in the property.
II. To deliver the property to these plaintiffs would endanger the interests of any children that might hereafter be born and this equity will not do, and it would also deliver to them what they may not own.
III. The trust is a continuing one. There never has been a time since the will was executed, when it could be executed by the delivery of the property to the children in being without endangering the rights of those that might be afterwards born; nor was such an execution of the trust in the mind of the author of the will.
IV. Where there is a limitation over to other persons the estate will not be taken from the trustee, for he must retain the possession for the benefit of the remaindermen.
The authorities cited all establish this proposition. 1 Spears, 365.
V. Where there is an object to be accomplished by the legal estate remaining in the trustee, the courts will not take it from him.
C. M. Adams also, for appellee.
Appellants are the children of Isaac Dial and his wife, formerly Jane Patton, one of whom, Garlington Dial, is of age, and the others are minors, suing by their next friend Isaac Dial. The object of the suit is to recover certain property alleged to be held in trust for them by Garlington C. Dial, under the will of their grandfather Isaac Dial, who made his will and died in the state of South Carolina; one clause of which will reads as follows, to wit: “I give and bequeathe unto Garlington C. Dial in trust for the children of my son Isaac Dial, that he has or may have by Jane Patton, with whom he now lives in the character of a wife, one negro boy named Henry and three hundred dollars in cash, when my estate is divided and the money collected, in full of all my estate.” It is alleged that Garlington C. Dial has had possession of said property and the profits thereof since the year 1836 ( the value, etc.), and refuses to deliver or pay over said property, or any part of it, to said children or their natural guardian Isaac Dial, although requested so to do, particularly on the 2d day of February, 1852, and has kept said money and said slave in his possession and employed for his benefit from 1836 up to the bringing of the suit (June, 1853). They pray judgment for the negro, his hire, the money and its interest and for general relief.
An amended petition shows that after the commencement of the action another child was born, who was also made a party plaintiff by his next friend Isaac Dial.
The defendant, Garlington C. Dial, excepted generally to the sufficiency of the petition, and pleaded, first, that he has possession of the property and in execution of the trust has from time to time paid to Isaac Dial, for the benefit of his said children, certain sums of money ( them fully, etc.), and secondly, he denies the trust as alleged, claims the negro as his own by an alleged codicil to the will, and admits having received means upon a discretionary trust for the children,...
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