Sells v. Delgado
| Decision Date | 20 May 1904 |
| Citation | 70 N.E. 1036,186 Mass. 25 |
| Parties | SELLS v. DELGADO et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. Mott Hallowell and Moses, Morris & Westervelt, for respondents.
W. H Lewis and John L. Dyer, for respondent Philip Mario Delgado.
The general rule at law is that where a power is created and given in a will or deed by words that clearly indicate that the donor of the power placed special confidence in the donee, so that the element of personal choice or selection is found, then the exercise of such a power must be confined to and exercised by the person or persons thus selected, and ordinarily is not transmissible. Richardson v. Morey et al., 18 Pick. 181, 187; Shelton v. Homer et al., 5 Metc. 462, 465; Tainter v. Clark, 13 Metc. 220 226; Greenough v. Welles, 10 Cush. 571, 575; White v. Ditson, 140 Mass. 351, 359, 4 N.E. 606, 54 Am. Rep. 473.
Among other questions raised it becomes important to first determine whether the trustees named in the will of the testatrix come within this rule. She provided that the bulk of her estate should be divided into 'two equal parts or shares,' and respectively held in trust for the sole use and benefit of her children, the income arising therefrom to be paid to them with rights of survivorship as to principal and income not now material to the decision of the case. The further provision appears that when either attained the age of 25 years, if, in the judgment of the trustees, or the survivor of them, it was prudent and for their welfare, the property then might be distributed and that part coming to each paid, and the trust wholly or partially determined. In the fifth clause, which created the trust, she does not speak of the trustees by name, but they are referred to as 'my * * * trustees hereinafter named, or the survivor of them.' In the sixth clause they are spoken of by name, and appointed trustees to execute the trust created in the preceding clause. The language used by her is apt to express her purpose; and to them she confided discretionary powers in the management of the trust estate, and it was provided that, in case of the death of one, the survivor succeeded to all the authority possessed by both. An examination of the record discloses the fact that of the original trustees one has died, and, though they were duly appointed executors, yet they never qualified as trustees, and must be held by their conduct to have disclaimed the office. But a person named as trustee in a will or other instrument is not obliged to accept and execute the trust. He may expressly decline to serve, or, by his failure to act, or to take such steps as may be required legally to qualify him for his office, may leave it completely unexecuted, and, if his conduct was conclusive, then it would follow that the trust itself would fail for want of a trustee to carry it into effect. This is not permitted, and under such conditions a court having jurisdiction of the probate of the will, or vested with general equity jurisdiction, will, upon application of those interested as beneficiaries or otherwise, appoint a trustee or trustees to administer the trust as if none had been originally named or appointed. Bowditch v. Banuelos et al., 1 Gray, 220; Atty. Gen. v. Barbour, 121 Mass. 568, 574; Carruth v. Carruth, 148 Mass. 431, 19 N.E. 369. For it is a familar maxim in equity that a trust shall not be allowed to fail for want of a trustee, and in a case like that under consideration the power conferred is not a mere detached naked authority purely discretionary with them, which may be exercised at their pleasure, but is blended with the trust to which it attaches. Gibbs v. Marsh, 2 Metc. 243, 251; Leeds v. Wakefield et al., 10 Gray, 514, 517. A different construction would cause a serious impairment of the full design of the testatrix, and leave it imperfectly executed. Although the receipt of the income is assured, yet it may be equally, if not more, advantageous to the beneficiaries to call for a distribution of the principal to be made under the provisions of the will, and it might be a great hardship to either if deprived of this privilege because it was found to be limited to the persons named. That she did not intend such a result is shown not only by her purpose that her children, if found competent, were to be permitted, when of mature age, to receive the principal, but also in the use by her of the comprehensive phrase, 'my trustees, or the survivor of them'; and, if it had been a part of the general plan to limit such a power to those originally selected, then she would have used words to make plain such a limitation. It may therefore be inferred that her intention was not to restrict its exercise to those named, but rather to confer it on whomsoever should be appointed to administer the trust.
At the time when...
To continue reading
Request your trial