Dixon v. Dixon

• Decision Date: 31 March 1924
• Citation: Dixon v. Dixon, 123 Me. 470, 124 A. 198 (Me. 1924)
• Parties: DIXON et al. v. DIXON et al.
• Court: Maine Supreme Court

124 A. 198

DIXON et al.

v. DIXON et al.

Supreme Judicial Court of Maine.

March 31, 1924.

Report from Supreme Judicial Court, Hancock County, in Equity.

Bill of Emily P. Dixon and others against Fitz Eugene Dixon and another, as executors and trustees under the will of T. Henry Dixon, deceased. On report, bill sustained, and decree in accordance with opinion.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

Hale & Hamlin, of Ellsworth, for plaintiffs.

Edmond J. Walsh, of Ellsworth, for defendants.

PHILBROOK, J. T. Henry Dixon, who died June 18, 1922, at the time of his death being a resident of the city and county of Philadelphia, state of Pennsylvania, left a will consisting of only three paragraphs. The instrument was duly proved and allowed by the proper court in the county where he resided at the date of his death. In July following, the deceased having left real and personal property in this state, the will was also allowed by the probate court for the county of Hancock. The respondents, Fitz Eugene Dixon and William Henry Trotter, by the latter court, were appointed executors of the will in July, 1923, and in November of the same year were also appointed trustees. Both qualified for the performance of their duties in each capacity.

The cause comes to this court by report. The bill prays for interpretation of the second paragraph of the will, which contains the sole provision for disposition of the estate, and reads as follows:

"Whatever I may die possessed of I leave to my son, F. Eugene Dixon and my dear friend, W. H. Trotter, in trust, the income to be divided as follows; to my wife, Emily P. Dixon, one-third, and the balance in equal proportions to my children, Bo's share to go to his children."

The person referred to as "Bo" was a son of T. Henry Dixon, who predeceased his father. The widow waived the provisions of the will made in her behalf, and now claims the portion of the real and personal estate that would legally pass to her if her husband had died intestate. It follows, without further discussion, that the widow, Emily P. Dixon, as to real and personal property within the jurisdiction of this court, takes the same share of the real estate and the same distributive share of the real and personal estate of the testator as is provided by law in intestate estates. R. S. c. 80, § 14. We are therefore concerned only as to the other two-thirds of the real and personal estate which is within the jurisdiction of this court.

Law-writers and courts of last resort agree that trusts may be classified into two general divisions: (1) Those trusts which arise out of a direct or positive declaration of trust, and known as direct or expressed trusts; (2) implied trusts, or trusts enforced by equity because morality, justice, conscience, and fair dealing demand that the relation be established. As to the second division we are not here concerned. The first division may be further classified into active trusts, otherwise called alive or operative trusts, and passive trusts, otherwise called simple, nominal, or dry trusts. An active trust maintains the legal estate in the trustee, to enable him to perform the duties devolved on him by the donor, and gives the cestui que trust only a right in equity to enforce the performance of the trust. Dodson v. Ball, 60 Pa. 492, 100 Am. Dec. 586. By the same authority a passive trust gives to the cestui que trust a right to the possession, control, and disposal of the property, and the legal estate becomes executed in him unless it is necessary to remain in the trustee, to preserve the estate for the cestui que trust, or to pass it to others. Our own court, in Sawyer v. Skowhegan, 57 Me. 500, states the principle thus:

"Trusts are of two kinds, active and passive. The latter are sometimes called dry, naked, or simple trusts. In the former, active duties are imposed. In the latter, no active duties are imposed; the trustee is a simple depositary of the title. In the former, the trustee controls the trust property. In the latter, the cestui que trust controls it."

The first contention of the complainants is that the paragraph in the will under...