Cranston v. Plumb

I am of opinion that the plaintiff" has a sufficient legal and equitable interest in the trust fund to authorize him to intervene for its protection. He created the trust, and supplied the fund, on his separation from his wife, which he intended should be exclusively reserved for her maintenance. If the trustees are in such circumstances, or are acting in such a way, that there- is reason to fear that it will be diverted from this purpose, it would be strange if he has not the right to interpose, in order that his intention in creating the trust should not be utterly defeated. In the deed of separation, executed alike by the plaintiff, Mrs. Cranston, and the trustees, it is stipulated that the fund shall be invested in a certain manner, and the proceeds applied to the maintenance of Mrs. Cranston. Are the trustees not responsible to the plaintiff, under this stipulation, and has he not a right to compel them to perform it by resorting, in his own name, to this court for its aid and protection ?

" Besides, the plaintiff has a pecuniary interest in the preservation of this fund, and in the faithful performance of this trust. To be sure, according to a provision of the deed of separation, Mrs. Cranston is empowered to dispose, by her last will and testament, of the whole or any part of the fund which may remain unexpended at the time of her decease. The whole, or some of it, might be unexpended at the time of her decease. Certainly, if the trust be faithfully executed, twenty thousand dollars, the amount which the trustees stipulate shall be kept invested on bond *76and mortgage on real estate, during her lifetime, will be unexpended on that event. It is possible that she may make no disposition of the trust fund, or any portion of it, by her last will and testament. In that case, whatever may remain unexpended would, undoubtedly, revert to the donor. This is even provided for by statute. “ When the purpose for which an express trust shall have been created shall have ceased, the estate of the trustees shall also cease,” (1 R. S. 730, § 86, marginal,) and of course shall revert to the donor.

If it is necessary to add any thing to these considerations, I remark that the deed of separation contains a provision which is quite conclusive. After the covenant that Hiram Cranston (the plaintiff) shall at all times thereafter permit his wife to live separate and apart from him, and that he will not exercise or claim marital control over her, or interfere with her in any manner whatever, it is added that nothing therein contained shall preclude him from taking all lawful méans, should the occasion arise, to compel the performance of the trusts and agreement in that instrument contained;

The order should be affirmed, with costs.

Geo. G. Barnard, J., concurred.

(dissenting.) I shall concede, for the purpose of this decision, the right of the plaintiff, by action, to compel the trustees to keep their covenants with him, in the deed of separation, containing the terms upon which he purchased his freedom from his wife, and the status or condition of quasi bachelorship.

The.trustees covenant with the plaintiff to perform all the trusts in the instrument of separation. As to $20,000 of the trust fund, the instrument specifies the manner in which it is to be invested, and kept invested; and the court can, at the instance of the plaintiff, compel the trus*77tees to keep it invested as specified in the instrument; and if the mortgages in which the defendants claim the $20,000 are invested are not such securities as the terms of the trust as to the $20,000 call for, the court can repudiate them, and compel the trustees to invest $20,000 as required by the terms of the trust. But as to $30,000, the residue of the trust fund, the instrument specifies that "it shall be invested in the joint names of the trustees, in such manner as Mrs. Cranston shall, from time to time, ly writing under her hand, direct or approve ; and the trustees are expressly authorized and empowered,. in their discretion, at any time, and from time to time, to pay over to Mrs. Cranston any part of the $50,000 (the trust fund) except the $20,000, for the investment of which particular directions had been given.

Now I cannot see how the order appealed from could be made, or how we can affirm the order, without unjustifiably interfering with, or taking away, this discretionary power of the trustees, given to them for the benefit of Mrs. Cranston, to pay her any part of the $30,000 at any time.

Even a court of equity cannot make a contract for parties, and certainly a court of equity will not undertake to alter or modify a deed of separation between husband and wife. I do not say that the court could properly have so far controlled the discretion of the trustees as to have ordered them, if the fund was in danger, to pay the $30,000, or to transfer the securities in which it was invested to Mrs. Cranston; but certainly such an order would have been more consistent with the terms of the trust as to the $30,000, and with the rights of Mrs. Cranston under the deed of separation, than the order which was made.

Moreover, I am not able to discover, from the papers, on what ground, or evidence, the court below determined that the $30,000, or so much thereof as had not been paid to Mrs. Cranston, was not invested according to the terms of the trust as to it, and ixs she had directed and approved; *78and if it was, I cannot see what right the plaintiff had to call upon the court to make any order or take any action as to the $30,000.

I will add, that the order not only in effect, but in words, restrains the trustees from making any disposition of the trust fund, (except income,) though the plaintiff, by the trust instrument, expressly authorized them in their discretion to pay to Mrs. Cranston, at any time, any part of it, except $20,000 thereof. I do not see how the court could take away this discretionary power for the benefit of Mrs. Cranston, resting on the contract of the parties, which is assumed to be valid.

I think the order appealed from should be reversed, with costs. .

Order affirmed.

Clerke, Sutherland and Geo. G. Barnard, Justices.]