In re Morton's Estate
Decision Date | 02 November 1936 |
Docket Number | 26183. |
Court | Washington Supreme Court |
Parties | In re MORTON'S ESTATE. |
Appeal from Superior Court, Skagit County; George A. Joiner, Judge.
Proceeding in the matter of the estate of Chester Alvin Morton, wherein the Mount Baker Area, Boy Scouts of America, filed objections to petition for distribution, and prayed for construction of will. From a construction of the court holding that a trust had been created, the executor appeals.
Reversed.
John W Brisky and Thomas K. Chambers, both of Mt. Vernon, for appellant.
Welts & Welts, of Mt. Vernon, for respondent.
Chester A. Morton died, leaving a will which contained the following provision 'I give, devise and bequeath unto Robert E. L. Knapp, as trustee, the sum of one thousand dollars ($1,000.00) to be expended for the building and equipping of Sea Scout Ship No. 60 of Mount Baker Area, Boy Scouts of America, said sum to be expended solely and entirely at the discretion and according to the judgment of said Robert E. L. Knapp, and it is my hope and desire that he shall continue as skipper of said ship, and I suggest as a name for it 'Viking.'
'If for any reason which shall be deemed sufficient in the judgment of said Robert E. L. Knapp, the expenditure of said sum of one thousand dollars ($1,000.00) is not feasible for the purpose indicated, he may, at his discretion, use said sum for any cause or purpose which he may deem worthy.
'If no such cause presents itself, then this bequest shall become null and void.'
Knapp was named as executor and was made residuary legatee. In his petition for distribution, he alleged:
Mount Baker Area, Boy Scouts of America, a corporation, filed objections to the petition for distribution, and prayed for a construction of the above quoted clause of the will. The court held that the provision created a trust, and denied the petition for distribution, in so far as it sought to have the fund distributed as a part of the residuary estate. The executor appeals.
There are at least four essential elements to the creation of a testamentary trust: (1) Subject; (2) object; (3) beneficiary; and (4) an imperative command to the donee to apply the subject-matter to the object for the use of the beneficiary.
It may be conceded that the first three elements are contained in the provision of the will here under consideration. The last is obviously wanting. Schouler, in his work on Wills, Executors and Administrators (6th Ed.) vol. 2, p. 1516, § 1363, says: 'Wherever a clear discretion to act or not to act is given equity will not construe a trust.' This statement is supported by a veritable host of decisions. In the annotation to Carter v. Strickland, 165 N.C. 69, 80 S.E. 961, Ann.Cas.1915D, at page 418, it is stated:
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...and (4) an imperative command to apply the subject matter to the object for the use of the beneficiary. In re Morton's Estate, 1936, 188 Wash. 206, 208, 61 P.2d 1309. Lanigan v. Miles, 1918, 102 Wash. 82, 93, 172 P. It is the contention of the beneficiary in the case at bar that all four of......