Barrette v. Dooly

21 Utah 81 | Utah | 1899

Baskin, J.,

after stating the facts, delivered the opinion of the court.

The trust created by the deed conveying to the defendant the real and personal property therein mentioned, was more than a mere naked trust; it was an active one. The trustee was required to convert tbe property into money, and out of tbe proceeds to pay the debts of tbe grantor, and after doing so, to pay to tbe grantor’s devisees any balance which might remain.

One of tbe exceptions to the operation of the statute of uses is that, “Whenever the instrument creating the trust confers upon the trustee any'power in trust, or imposes any duty relating to the control or management of the trust estate, or establishes any agency to be performed by the trustee, as such, the legal title will vest in him in order to enable him to administer the trust.” 2 Beach on Trusts and Trustees, Sec. 395; Washburn on Beal Property, p. 498.

A trust to sell even on a contingency confers a fee simple title as indispensable to the execution of the trust.” 1 Lewin on Trusts, p. 214.

By the trust deed the defendant was vested with the legal title- to the property conveyed, subject only to the execution of the trust. The cestuis que trust acquired no title under the deed, either legal or equitable, to the property conveyed, but simply acquired the right to have the same converted into money by the trustee, and the proceeds applied in accordance with the terms of the trust deed.

As the trust deed divested the said Norton of bis title to the property conveyed, the proceeds derived from the sale thereof by the trustee constitute no part of the decedent’s estate, and the plaintiff, as administrator, in no event, is entitled to have the same or any part thereof turned over to him. The cestuis que tyrust are the only parties who are entitled to the same, and since the death of the said Norton are the only parties who, under the facts alleged in the complaint, can be injured by a failure to dispose of said proceeds in accordance with the terms of the trust deed. The trustee is under obligations to no one except the beneficiaries of the trust, and if he has failed to execute his trust, those alone, who are injured by its non-performance, have a right to maintain an action for its enforcement.

The duties of the defendant as executor were entirely different from his duties as trustee, and neither his appointment or removal as executor, in the least affected the trust or released him from his obligation to the cestuis que trust. If he should yield to the demand of the plaintiff and pay over to him any of the proceeds of ‘the trust property, he would violate his trust, and would still be held responsible to those entitled to the trust fund. He could not plead such payment in bar of an action by them to enforce the trust.

Plaintiff’s counsel, in their brief, contend that, “While it may be true that the administrator has no right to participate directly in the proceeds of the trust property held by Dooly, he has what is equivalent to such right; namely, an interest on behalf of the cestuis qxie trust, to-wit, the creditors and devisees and legatees of Norton, in seeing that the funds in his own hands are relieved as far as possible from unjust burdens. For the benefit of all parties interested a court of equity will marshal the assets and compel the payment óf the creditors out of the funds primarily liable to their payment.”

The complaint fails to allege that there are any funds or assets of any kind in the hands of plaintiff, as administrator, or that there is ■ any property of the estate from which any assets can be derived, therefore there is no basis for this contention of plaintiff’s counsel. If there were any funds or assets, or any such property of the estate, which the execution of the trust by defendant would relieve from burden's, and the plaintiff relied on that fact to sustain his action, then he knew of its existence, and should have alleged it in his complaint, but having failed to do so this court can not presume that any such fact exists. As the beneficiaries of the trust are the only persons shown in the complaint, to be interested, and are the only persons who can be injured by a failure on the part of the defendant to execute the trust, they are the proper and only parties who can maintain an action against the trustee to enforce the trust, under the facts disclosed by the complaint.

We are therefore of the opinion that the plaintiff has no legal capacity to maintain this action.

It is ordered that the judgment of the court below be affirmed, at the cost of the appellant.

Bartoh, C. J., and Miner, J., concur.