In re Sullivan's Will

• Decision Date: 10 December 1943
• Docket Number: 31605.
• Citation: 12 N.W.2d 148,144 Neb. 36
• Parties: In re SULLIVAN'S WILL. SULLIVAN v. SULLIVAN et al.
• Court: Nebraska Supreme Court

12 N.W.2d 148

144 Neb. 36

In re SULLIVAN'S WILL.

SULLIVAN v. SULLIVAN et al.

No. 31605.

Supreme Court of Nebraska

December 10, 1943

Syllabus by the Court.

1. Ordinarily, a trust for the support and maintenance of a named beneficiary can be reached to satisfy the claim of a wife or minor child for support against such beneficiary.

2. The fact that the provisions of a testamentary trust provide that the trustee is under a duty to support the named beneficiary, and the extent of the exercise of such duty is left to the discretion of the trustee, does not defeat the claim of a wife or minor child for support.

3. The extent of the discretion conferred upon a trustee is measured by the settlor's manifestation of intention.

4. Where the settlor provides that the trustee shall have uncontrolled discretion in carrying out the purpose of the trust, the words "uncontrolled discretion" are ordinarily construed as merely dispensing with the standard of reasonableness.

5. Where the exercise of a power by a trustee is required by the terms of the trust or by the principles of law applicable to the duties of trustees, and the trustee fails to act at all his failure constitutes arbitrary action which the courts will correct in a proper action.

6. Where the court may properly control the exercise of a power by a trustee, but not the discretion to be employed by such trustee, it may do so by directing him to act or refrain from acting, by setting aside the transaction when he has already acted, by holding him liable for the results of his action or nonaction, or, if it be necessary, remove him as such trustee.

7. A court may not, however, substitute its discretion for that reposed in the trustee under the provisions of a testamentary trust.

Ellick Fitzgerald & Smith, of Omaha, for appellants.

Wear Boland & Nye, of Omaha, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CARTER Justice.

This is an action to compel the trustees of a testamentary trust to pay to the wife and minor child of the named beneficiary sufficient sums for their support and maintenance. The district court found for the plaintiff and ordered the defendant trustees to pay her the sum of $50 a month from and after December 4, 1941. The defendants appeal.

The record shows that the will of John T. Sullivan was admitted to probate on March 23, 1940, and contained the following provisions pertinent to the present controversy: "to my executors hereinafter named, or their successors, or such executor hereof as may be named by the proper court, I give, devise and bequeath the remaining undivided one-fifth thereof, in trust, however, for the use and benefit of my son, Lawrence P. Sullivan, of Omaha, Nebraska, who is an invalid. My said executor or executors shall securely and properly invest and re-invest said trust estate, or any part thereof available for such purpose, in good and valid investments under orders from the county court in which this instrument is admitted to probate, and they shall apply the proceeds or income therefrom for the proper use, support and maintenance of said son, Lawrence P. Sullivan, as the same is received by them or as his needs may require or necessitate, and for that purpose may use and apply any part or portion of the principal of said trust estate from time to time as in their judgment may be required or necessary therefor, they being the sole judges of such necessity without applying to the courts for authority so to do, and I declare that said executors shall have full and uncontrolled discretion as to the application of said income and trust estate for the uses aforesaid.

"Upon the death of said son, Lawrence P. Sullivan, I devise and bequeath whatever part of said trust estate remains at his death to the heirs at law of my said son as their absolute property."

The record further shows that Lawrence P. Sullivan, the named beneficiary of the trust, is wholly incapacitated and that there is no possibility of his condition improving. At the time of trial he was being cared for in a hospital, the cost of which, together with that of doctors, nurses and supplies, was approximately $300 a month. There is evidence that the life expectancy of the named beneficiary is about ten years. It is not disputed that the value of the trust estate on September 30, 1942, was $14,825.-80.

The plaintiff is the wife of Lawrence P. Sullivan. The record shows that her health is such that she is unable to support herself. Plaintiff has two children residing with her, one of which, a daughter, has reached her majority, and the other, a son, was 18 years of age when the case was commenced. At the time of trial the son was earning approximately $100 a month. The evidence is, however, that the son has a physical deformity which requires constant medical care and attention and which limits his earning capacity. Without going into detail, it was upon this state of facts that the defendant trustees failed to provide support and maintenance from the trust fund for the wife and minor son of the named beneficiary of the trust.

The question appears to be one of first impression in this state, and while the courts of other states have passed upon similar cases, their holdings have not been uniform. We think the general rule is that a trust for the support and maintenance of a named beneficiary can be reached to satisfy the claim of a wife or minor child for support against such beneficiary. Restatement, Trusts, sec. 157. This is so, even if the testamentary provision provides that the trustee is under a duty to support the named beneficiary and the extent of its exercise is left to the judgment of the trustee. Under such a trust arrangement the trustee may be required by the courts to apply at least the minimum amount, which could reasonably be considered necessary for the support of the beneficiary, to the accomplishment of the settlor's expressed purpose. Similarly, if the trustee undertook to apply more than the maximum amount which could reasonably be considered necessary for the beneficiary's support, the proper court will exercise its processes to restrain such an application of the trust funds by the trustee. But within these limits the power of decision rests with the trustee and the court may not properly substitute its judgment for that of the trustee. In re Moorehead's Estate, 289 Pa. 542, 137 A. 802, 52 A.L.R. 1251, and cases therein cited. See, also, Eaton v. Eaton, 81 N.H. 275, 125 A. 433, 35 A.L.R. 1034; Eaton v. Eaton, 82 N.H. 216, 132 A. 10; Bucknam v. Bucknam, 294 Mass. 214, 200 N.E. 918, 104 A.L.R. 774.

Defendants call our attention to the following statement in...