Williams v. Moliere

The opinion of the court was delivered by

The counsel for the petitioner claims that the power conferred on James H. Williams, the trustee named in the will, to convey, make over and deliver to Abby Deming. the whole or any part of the trust estate, in his discretion,' was personal and limited to him, and did not extend to his successors, and this on the ground that such powers can be exercised only by those persons to whom they are confided by the trust *384instrument. We arrive at a different result even under the rule which is invoked. The devise was to said Williams, ‘ ‘ and to his heirs upon the trust, and for the uses and purposes and with the power hereinafter declared, expressed and given in relation thereto.” Not only the trust goes to the heirs, but the power also. Following the above quotation are the clauses directing as to the trust and defining the discretionary power, and in those clauses only the name, James IT. Williams, is used ; but it is perfectly clear that such mention of his name was not intended as any restriction or limitation upon what preceded, but was used as a mere convenience in defining both the trust and the power reposed, in the previous clause, not only in him but in his heirs. This discretionary legal power was in that clause as expressly given to the heirs as to Williams; and where such power is given to heirs it can be exercised by them.

It was early settled that a power could be given to an unknown person or class, as to the heirs of a living man, after his death. 1 Sugden on Powers, p. 148. The author says: ‘ ‘ There is a necessity for trusting persons who cannot be personally known, in order to effectuate men’s intentions in the exei’cise of that dominion which the law gives them over their properties. There is nothing absurd in trusting persons not known; nothing incongruous or repugnant to the rules of law.”

In reply to the objection that the power may devolve on infants, idiots or lunatics, or such a number of female heirs as will make their agreement very improbable and equivalent to a disability, Mr. Sugden says: “This is an objection to authorities coupled with interests, as well as to mere naked authorities; the disability is the same, but it is no reason against creating such a. power, that by accident it cannot be exercised.” The author cites Wilmot, notes, 36. In Cole v. Wade, 16 Ves. 27, the devise and bequest were to two trustees named, their executors, administrators and assigns. The disposition contained a mixture of trust and power. The Master *385of the Rolls, Sir William G-baNt, sáid : “ Though it seems very incongruous and inconsequential to extend to unknown and unascertained persons the power which personal knowledge and confidence had induced the testator to confide to his original trustees and executors, yet I am not authorized to strike these words out of the will upon the supposition, though not improbable, that they were introduced in this part by inadvertence and mistake. I do not apprehend that a bequest actually made, or a power given, can be controlled by the. reason assigned. The assigned reason may aid in the construction of doubtful words ; but cannot warrant the rejection of words that are clear.” In that case there was a question as to the effect of .the words, which does not exist in the case at bar.

This trustee named in. the will is dead, and this petitioner is one of his heirs and has been appointed trustee ; but there are other heirs, therefoi’e they should also be appointed trustees. Upon this construction of the will 'there is no occasion for invoking the aid of our statutes applicable to the case, of the appointment of new trustees. Sections 2291-2 R. L.

No question is or could properly be made but that the first branch of the decision of the Probate Court was correct, which related to certain notes which said Abby Deming gave the trustee. But as to the second branch there was error.

The judgment of the County Court is therefore reversed, with costs to the defendants to be paid out of the trust funds; to be certified to the Probate Court.