McDonald v. McDonald

• Decision Date: 28 April 1891
• Citation: 92 Ala. 537,9 So. 195
• Parties: MCDONALD ET AL. v. MCDONALD ET AL.
• Court: Alabama Supreme Court

9 So. 195

92 Ala. 537

MCDONALD ET AL. v. MCDONALD ET AL.

Supreme Court of Alabama

April 28, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

R H. Pearson, J. M. Martin, and Watts & Son, for appellants.

Lane & White, for appellees.

WALKER J.

Mrs Cynthia A. McDonald died in Jefferson county in this state in January, 1882. By her will she left all her property, real and personal, to her husband, W. J. McDonald, "in trust and as trustee for the following purposes; that is to say: I give, devise, will, and bequeath all of my said property unto my husband, in trust and as trustee, to be held and managed and controlled by him for his comfort and support during his life, and for the comfort and support and education of the children of the body of the undersigned testatrix and said husband, W. J. McDonald, giving my said husband full and complete authority and power to collect and receive and dispose of the rents, income, and profits of my said property in such manner as he may think best in carrying out the purposes of this trust." The will gave to said W. J McDonald as such trustee "full authority to improve the real estate, or to invest or to reinvest the same, as he may think best for the good of said estate and the parties interested in the same." The will provided that none of said property, or any of the rents, income, or profits arising therefrom, should be liable for, or in any manner appropriated to, the payment of any debts or obligations of said W. J. McDonald contracted prior to the publication of said will. It was further provided by said will that upon the death of said husband and trustee all of said property shall be at once vested in and be equally divided between the children of the testatrix and her said husband, except the share of one of the sons shall be vested in his wife. Said testatrix left surviving her five sons and two daughters, all of whom are still alive. At the time of their mother's death all of them were over the age of 21 years; and none of them were at school except one son, who was then 20 years of age, and another son, who was then 12 years of age. The bill in this case was filed by three of the sons and one of the daughters against their father and their other brothers and sister. It alleges that the personal property left by said testatrix was of small value, but that she left certain real estate in the city of Birmingham which at the time of her death was of large value, and was then bringing in a handsome rental income, of not less than $225 per month; that said rental income has been growing steadily larger, and for the last three years said W. J. McDonald, as trustee under the will, has collected rents from said real estate amounting to not less than $18,000 over and above all legitimate expenses of the property; and that he is now receiving as rents from said real estate $7,560 per annum, the rents being payable monthly. The bill alleges that since the death of the testatrix said trustee has not contributed anything to the support of the children of the testatrix, except small sums, not exceeding in the aggregate $150, furnished to the family of one of the sons, who is a defendant; and amounts not exceeding $1,200 to one of the daughters, who is a defendant; and board and clothing of an inexpensive kind for a part of the time to one son and to one daughter, who are complainants; and an amount not exceeding $150 to another son, who is a defendant. That said trustee has persistently refused to contribute anything to the support or maintenance of said children, except as above stated; and asserts that they are entitled to no support out of said funds so long as he lives; and he avers that he does not intend to improve said real estate; that it brings in rent enough as it stands to suit his own needs; and that this is all he cares for. The bill further alleges that at the time of her death the testatrix owed but few debts; that complainants are not advised of the exact amount thereof, but state on information and belief that such debts did not then exceed $5,000; that, after making all reasonable allowance for such expenditures as said trustee has legally made out of said trust funds, there should remain in his hands at least $15,000 for distribution among the legatees under said will; and that in future, after making all just and proper allowances to said trustee, there would be in his hands from said rentals a surplus of at least $500 each month for distribution according to the directions of the will. The bill prays, among other things, that the court construe said will, and take jurisdiction of the trust thereby created, and have the same administered under its orders.

A principal question raised by the demurrers of W. J. McDonald Sr., is whether by the terms of the will he is vested with such power over the rents, income, and profits of said property as, in the circumstances disclosed by the averments of the bill, to preclude the exercise by the court of any supervision or control over his disposition thereof. In dealing with the will of a decedent the court has two important functions to perform: First, to ascertain the intention of the testator, as disclosed by the instrument; second, to require that the lawful directions and dispositions so made by the decedent be carried into effect. In this case the intentions of the testatrix as to the disposition of her property and the application of the rents, issues, and profits arising therefrom are not difficult of ascertainment. In plain terms the property is vested in the husband during his life, to be held, managed, and controlled by him as trustee for his comfort and support, and for the comfort, support, and education of the children of the testatrix. The intention to provide for the comfort and support of the children, and to secure to them a participation in the beneficial enjoyment of the income from the property, would not have been more plainly manifested if some person outside of the family had been named as trustee to hold the property during the life-time of the husband, and to receive and dispose of the rents and profits for the comfort and support of the husband and children. If such had been the case, it would surely not be contended that the trustee may be allowed to exclude either the father or the children or both from the benefits of the trust. The mere fact that the trustee himself is one of the beneficiaries cannot authorize him to...