Hunt v. Hunt

• Decision Date: 26 June 1900
• Citation: 124 Mich. 502,83 N.W. 371
• Court: Michigan Supreme Court
• Parties: HUNT et al. v. HUNT et al.

83 N.W. 371

124 Mich. 502

HUNT et al. v. HUNT et al.

Supreme Court of Michigan

June 26, 1900

Appeal from circuit court, Wayne county, in chancery; William L Carpenter, Judge.

Bill by Maria T. Hunt and others against Charles J. Hunt and others for the appointment of a trustee under the will of Maria E Hunt, deceased.From an order terminating the trust, and declaring the defendantCharles J. Hunt owner of the trust property in fee, plaintiffs appeal.Reversed.

Maria E. Hunt died testate.The first clause of her will reads thus: 'I do hereby will, devise, and bequeath to my executors, hereinafter named, and to the survivors of them my farm in the county of Shiawassee, and state of michigan lying between Corunna and Owosso, in which Mrs. Henry Hunt, widow, has a life estate, in trust, however, for the following purpose, viz.: To sell and dispose of the same as soon as convenient after the death of Mrs. Henry Hunt and the termination of said life estate, and invest the proceeds thereof permanently in bond and mortgage, or in such other ways as may seem to my said executors safe and advisable, and pay over, as fast as received, the income and interest thereof, equally, to my two sons, Charles James Hunt and Joseph Nathan Hunt, share and share alike, as long as they shall live; and upon the death of either of them to pay over one-half of the same to his heirs, devisees, or legatees, including principal and interest.'Hervey C. Parke and Mary A. Hunt were appointed executors.Miss Hunt did not qualify.Mr. Parke acted as sole executor, closed up the estate, and, as trustee under the clause above named, exchanged the land therein mentioned for real estate in the city of Detroit.Defendant Charles and his brother Joseph were permitted by the trustee to enjoy the use and control of this land.Mr. Parke having died, the complainants, who, upon the death of defendant Charles intestate, would, as heirs, become entitled to his property, filed a bill for the appointment of a trustee in place of Mr. Parke.The Union Trust Company filed an answer, admitting the allegations of the bill, and that complainants were entitled to the appointment of a trustee.Defendant Charles answered, admitting the allegations of the bill as to the death of Mrs. Maria E. Hunt, the will, and its execution; the death of Mr. Parke; that at his death 'the trusts created by the will were in full force and virtue, and that no trustees had been appointed in their place'; and further alleged that his brother Joseph died testate, having disposed of his interest in the land by will, and that he(Charles) is the sole cestui que trust having interest in said land, and that he has the full power and authority to dispose of it.The court entered a decree appointing one Robert M. Chamberlain as trustee.By that decree the trustee, so appointed, was authorized to apply to the court for advice and direction in respect to the execution of said trust.Thereafter defendant Charles filed a petition in the original suit, asking that the trustee(Chamberlain) be summoned to show cause why the prayer of his cross bill should not be granted, and the trustee directed to convey to him the real estate so held in trust under the will of Mrs. Hunt.Upon that hearing Mr. Chamberlain, the trustee, appeared, and stated to the court that, in his opinion, the trust should be terminated.Charles had made a will devising the property to his wife, who appeared in court, and asked that the decree be made.The court entered a decree terminating the trust, and declaring that defendant Charles was the owner in fee of the land.

Le Vert Clark, Edwin F. Conely, and Orla B. Taylor, for appellants.

Charles J. Hunt, for appellees.

GRANT J.(after stating the facts).

The intention of the testatrix is entirely clear.She devised the real estate to her executors as trustees, with authority to sell, and to 'invest the proceeds in bond and mortgage, or such other ways as the said trustees should deem safe and advisable,' the receipts therefrom to be paid over to her two sons during their lives.She empowered each of them to devise the property, whether it should be realty or personalty, but, should either fail to make a will, then it was to go to the heirs of each one.This intention of the testatrix must be carried out, unless to do so would be in direct violation of law.The trust was an active one, and the trustees and their cestuis que trustent--the two sons of Mrs. Hunt--could not, by any agreement or action of theirs, change the character of the estate or the fund received therefrom.Cuthbert v. Chauvet,136 N.Y. 326, 32 N.E. 1088, 18 L. R. A. 745;Rife v. Geyer,59 Pa. St. 393.It follows that, even if the trustees permitted Charles and Joseph to occupy, enjoy, and manage the real estate, and receive all the rents and profits thereof, this would not change the active trust into a passive one, and deprive the other beneficiaries of the interest in the property to which, under certain contingencies, they would become entitled.It was entirely proper for the trustees to permit them the use and benefit of it.

The defendant Charles contends that the title in fee has become vested in him under section 8867,Comp. Laws 1897, which reads as follows: 'When a general and beneficial power to devise the inheritance, shall be given to a tenant for...