Lead Opinion
This action was brought by appellant against appellee individually, and as executor of the last will of Thomas W. Harper, to establish a trust in certain personal property held by appellee, and to follow and recover the trust fund. The question presented by the record being essentially one of law, it is necessary, for a proper understanding of the same, to set out the undisputed facts, as they appear -in the amended complaint and the third paragraph of answer.
The complaint shows that appellant is a daughter and only child of Thomas W. Harper, and a grand-daughter of William H. Harper, who died testate at Lima, Ohio, on April —, 1901, leaving surviving him four children, viz: William H. Harper, Jr., Thomas W. Harper (father of appellant), Yinnie Annat and Mary Syfers. The will of William H. Harper was duly proved in the Probate Court of Allen County, Ohio, on April 24, 1901. By its terms the will provided for the payment of the testator’s debts, and made certain specific bequests. The balance of his property was devised and bequeathed to his four children above named,
“I direct that the share of each of my children in my personal property and the proceeds of my real estate be paid to them in money or kind as soon as possible under the provisions of this will, except that one half of the share of my son Thomas W. Harper in the property described in items four and five hereof remain in the hands of my executor and my son-in-laws, R. K. Syfers and William Annat, whom I hereby appoint trustees for that purpose, until the death of my son, Thomas W. Harper. Said trustees to invest said sum and pay to my said son Thomas, yearly the income therefor. But I direct that if at any time in the opinion of my said trustees it would be for the best interests of my said son Thomas to pay him the whole or a part of said sum, they are hereby empowered to do so. If at the death of my said son Thomas, any part of said trust remain in the hands of my said trustees, they shall pay the same to any child or children of said Thomas surviving him, or to their legal representatives; if my said son Thomas at his decease leave no surviving child or grand-child, such remaining sum shall be paid to my surviving children or their legal representatives, share and share alike.”
William IT. Harper, Jr., was named as executor of the mil, and after qualifying and making final settlement was duly discharged.
The three trustees named in item six received as a trust, for the purpose set out in said item, the sum of $7,230.09, invested the same, and paid the income thereof from time to time to Thomas W. Harper. On January 15, 1908, Rufus K. Syfers, one of the trustees named, died, and thereafter William H. Harper, Jr., and William Annat, as surviving trustees, concluded that a termination of said trust would be for the best interests of said Thomas W. Harper. On February 8, 1908, the surviving trustees delivered to said Thomas W. Harper certain notes, mortgages and cash, ag
A demurrer to the complaint was overruled, and appellee answered in three paragraphs. The first was in denial. The third paragraph included the averments of the second, and admitted the facts averred in the complaint, but alleged that after the death of Rufus K. Syfers, on January 15, 1908, the two surviving trustees continued to administer said trust, and on February 3, 1908, filed in the Probate Court of Allen County, Ohio,.their report and petition, averring that, in their opinion, a termination of the trust created by the will of William H. Harper would be for the best interests of Thomas W. Harper, asking for an order to turn over to said Thomas the balance of the trust funds in their hands, and that on producing the receipt of said Thomas for the same they be discharged as such trustees, and said trust ended; that on the filing of said final report the probate court entered an order authorizing said trustees to turn over
It is also averred in the third paragraph of answer that at the time the will of William H. Harper was executed, Thomas W. Harper was unmarried, and a man of intemperate habits, which was known to William TI. Harper, and his purpose and intention was to preserve to his said son the benefit of a part of the property bequeathed to him; that prior to the time said trustees turned over the property to Thomas W. Harper, he had married, and was living in a quiet and respectable manner, and was -able and competent to take charge of his own property at the time the same was turned over to him by the trustees; that on the death of Thomas W. Harper, the appellee, as executor of his will, took possession of the notes and securities in question as a part of the personal estate of said Thomas W. Harper. This paragraph of answer also sets out certain statutes and laws of the State of Ohio in force at and since the date of the probate of the will of William H. Harper.
A demurrer was sustained to the second paragraph of answer and overruled to the third. The cause was put at issue by a reply in denial to the third paragraph of answer, and submitted to the court-for trial, which resulted in a finding for appellee.
Upon the hearing, appellant offered in evidence the third paragraph of appellee’s answer, and by the testimony of appellee showed the amount of money, and the nature and amount of the securities held by him as executor. Appellee offered in evidence a transcript of the proceedings of the Probate Court of Allen County, Ohio, with reference to the trust in question, including the final report of the surviving trustees, the approval thereof by the court, and the discharge of the trustees. Appellee also offered in evidence the will of Thomas W. Harper,, his marriage certificate, and certain
The finding of the court was in the form of a written opinion, which has been carried into the record on appeal. It is unnecessary to set out this opinion, for reasons which will hereinafter appear.
The errors assigned and relied upon for reversal are as follows: (1) Overruling the demurrer to the third paragraph of answer; (2) overruling the motion for a new trial; (3) overruling the motion for a venire de novo; (4) overruling the motion for judgment, notwithstanding the finding of the court; (5) overruling the motion to modify the judgment. The last three specifications of error present the same matters, and are preliminary to the important questions involved in this appeal.
Two questions arising on the motion for a new trial remain for consideration: (1) Had the Probate Court of Allen County, Ohio, jurisdiction to make the order directing the surviving trustees to turn over the trust fund? (2) Did the surviving trustees have the right to execute the power contained in item six of the will of William II. Harper, Sr. ?
The important question is whether the discretionary power given to the trustees named in item six of the will of William IT. Harper, on the death of one of the trustees, passed to the survivors. This question considered alone is not free from doubt under the authorities. By the Ohio
The United States Supreme Court, in the case of Lorings v. Marsh (1867), 6 Wall. 337, 354, 18 L. Ed. 802, said: “Inasmuch as the trustees are invested with the legal estate in order to enable them to discharge the various trusts declared, it is well settled that the power conferred is a power coupled with an interest, which survives, on the death of one of them, and may be executed by the survivor. * * * It is not necessary that the trustees should have a personal interest in the trust; it is in the possession of the legal estate, or a right virtuie officii in the subject over which the power is to be exercised, that makes an interest, which, when coupled with the power, the latter survives. ’ ’
The same court in the case of Peter v. Beverly (1836), 10 Pet. *532, *564, 9 L. Ed. 522, said: “The general principle of the common law, as laid down by Lord Coke [Co. Litt.
The last case cited has been pressed on our attention by both appellant and appellee in support of their several contentions. In that case, at page 428, the court said: “If the authority be committed to trustees, the presumption is that, as the power was coupled with an interest, it was meant to survive. If a power be a joint one coupled with an interest, it will survive if one of the donees of the power die. But where it is a mere naked authority it will not survive. So if the authority be to two or more in an official capacity ratione officii it will survive if one die: But if it be to them nominatim or they are clothed with a special confidence of a personal nature, it will not survive. 2 Wash. Real Prop. (5th ed.) 553. For if the act to be done requires an exercise of the judgment and discretion of the several persons named as trustees, it can only be exercised by them all. 2 Wash. Real Prop. 554.”
It will be noted that the rule last above declared relates only to cases where the donee has but a simple, naked power, and has reference to the facts in that particular case. These facts are that one Iladley, devised to his wife certain real estate for life, and at her death three persons, named in the will, were authorized to take charge as trustees, and devote the same, if thought practicable, to the erection and maintenance of a charitable institution. But it was provided that if the erection of such institution was not, in the judgment
In the case before us, the res of the trust was personal property. All of the trustees named survived the testator, and held the legal title to the trust fund. The exercise of the discretionary power provided for was an incident to and connected with the trust.
The cases are collected and the principles are stated in 2 Washburn, Real Property (5th ed.) 554, from which the learned author draws the following conclusions: “The rule to be gathered from what is above said may be again stated, that where there are several joint-trustees, and one of them dies, the survivors take and are authorized to act by virtue of their survivorship, in the same way as one of two joint-tenants of a legal estate takes by Survivorship, unless it is a power only, and one not coupled with an interest; because, as an almost invariable rule, two or more trustees hold as joint-tenants, and not as tenants in common. If it is such a power, it ceases with the death of either of the trustees. A power is considered as coupled with an interest where the trustees have a right to the possession of the legal estate, or have a right in the subject over which the power is to be executed.”
It will appear from even a casual reading of the will of William H. Harper that his primary intention was to treat his unfortunate son the same as his other children, and put him in possession of his full inheritance as soon as his conduct and manner of life seemed to warrant it. As to the time when this should be done, if at all, his trustees were to determine; but the welfare of Thomas was the object of the father’s solicitude, and knowing, as he did, the uncertainties of life, we cannot believe that he contemplated or intended that his benevolent purpose should be defeated by the death of one of his trustees.
From the manifest intention of the testator, as well as from the weight of authority, we think the surviving trustees were fully warranted in exercising the power, and terminating the trust.
Judgment affirmed.
Rehearing
On Petition for Rehearing.
In her petition for rehearing, appellant, while not disputing the general rule that a power coupled with an interest will survive, insists that the power given by section six of the will of William H. Harper to his trustees was one of special trust and confidence in them as individuals, and not a power committed to them by virtue of their office.
In support of this proposition, the case of Cole v. Wade (1807), 16 Ves., Jr., *27, with others, is cited, and is in point. In that case, the Master of Rolls said: “I conceive, that, wherever a power is of a kind that indicates a personal confidence, it must prima facie, be understood to be confined to the individual, to whom it is given; and will not except by express words pass to others, to whom by' legal transmission the same character may happen to belong.” This case was determined by the High Court of Chancery in 1807, and almost a century latex-, the same court (In re Smith [1903], 73 L. J. 74) overruled Cole v. Wade, supra, and held that the general principle would be applicable if it had been followed and adopted by the later cases. The court further said: ‘ ‘ The principle, however, is open to the criticism that it is expressed in loose and general terms. All, or nearly all, powers xieeessitate, the personal confidence of the testator in the doxxees thereof, and it is very difficult to draw the line — for example, powers of leasing, and selling and investing, powers of nxaintenance and advancement of children, all require the exercise of discretion, but the principle could hardly be applied to thexn. I find it impossible to formulate any rule by which the court can say that certain powers are, and others are not, of sxxeh a nature that they must necessarily be given only to individuals known to the testator. There is no standard of measurement, but the more or the less becomes a mere matter of conjecture, affording no basis for judicial determination.” The court reviews a number of cases and concludes: “ Every power given to trustees, which enables them to deal with ox-affect the trust property is prima facie given to them ex officio as axx incident of their office, axxd passes with the office to the holders or holder thereof for the time being. Whether a power is so given ex officio or not depends in each case on the construction of the document giving it; but the mere fact that the power is one requiring the exercise of a very
Hadley v. Hadley (1897), 147 Ind. 423, 46 N. E. 823, the only Indiana ease wherein the question of powers has been considered, followed the rule laid down by Washburn, that where the power is coupled with an interest the presumption is that it was meant to survive. It also appears from the latest expression of the High Court of Chancery that the rule of presumption in cases of this kind has now been changed in England, and that where a power is given to trustees, it is prima fade by .virtue of their office. To overcome such presumption requires the use of clear and apt language in the instrument creating the trust and conferring the power. No such language is used in the will of William H. Harper. As the donees of the power hold the same ex officio, and no words are used importing a contrary intention, the power was one that would survive, and could be lawfully exercised in this case by the two surviving trustees.
Rehearing denied.
Note. — Reported in 96 N. E. 638, 98 N. E. 653. See, also, under (1) 31 Cyc. 350; (2) 3 Cyc. 181; 38 Cyc. 1976; (3, 4) 38 Cyc. 1990; (5) 23 Cyc. 866, 868; (6) 3 Cyc. 244; (7) 23 Cyc. 1545; (8) 23 Cyc. 1546; (9) 29 Cyc. 759; (10) 23 Cyc. 1546; (11) 23 Cyc. 1246; (12) 16 Cyc. 1084; (13) 40 Cyc. 1809; (14, 15, 16) 40 Cyc. 1834. As to the effect of judgments of sister-state courts, see 2 Am. Dec. 42; 103 Am. St. 304. As to what are collateral attacks upon judgments, see 23 Am. St. 104. As to the effect to he given a power coupled with an interest, see 110 Am. St. 860.