127 Ala. 208 | Ala. | 1899
The will of Lucy A. Crenshaw directs that a division of her property, real and personal, be made in certain named proportions among her. children and grandchildren, and that in the division advancements be charged against certain of the beneficiaries in amounts designated. Frank C. Fox, a grandson of the testatrix, was given one-tAvelfth of the entire property and has transferred his interest in the estate to the appellant, Avhose ownership thereof is not questioned, and Avho seeks by petition in the probate court to compel a final settlement and distribution of the estate.
By way of shoAving cause against the petition the .executor pleads a Avant of jurisdiction in the probate court to compel or make the distribution on account of the existence of certain executorial trusts defined in the following parts of the will: “Item third. The share given to my grandson Frank C. Fox will be held by my executor until said Frank becomes of lawful age, but in the meantime the income or . so much thereof as may be necessary, my executor will pay to or for said
It was long ago said by this court with reference to the jurisdiction of the orphans’ court to which the probate court has succeeded that it “does not seem to extend to cases where trusts are created by will, when the litigation is 'between the cestuis que trust and the executor as trustee.” — Harrison v. Harrison, 9 Ala. 470. And in Billingsley v. Harris, 17 Ala. 214, it was held that a will which gave the executors power to give certain property to such children of the testator as they should “think fit and proper” created a confidential trust of which the orphans’ court had no jurisdiction. The same principle is recognized in later cases cited post, as applicable to the probate court.
Testamentary trusts are sometimes created in the person named as executor which, because they are merely collateral to the administration of the estate, do not embarrass a settlement of the executorship proper in the probate court. They are such as do not pertain to the executorship, but are personal in their nature, and might as well be committed to one not the executor. The jurisdictional question arising in such cases are discussed in Ex parte Dickson, 64 Ala. 188; Hinson v. Williamson, 74 Ala. 180; Foxworth v. White, 72 Ala. 224; Harland v. Person, 93 Ala. 273; Pinney v. Werborn, 72 Ala. 58; and Creamer v. Holbrook, 99 Ala. 52.
Whether the executorship may be treated as distinct from the trust and so separately administered in the probate court depends not upon whether the trust is personal to the executor in. the sense that it could not be exercised by an administrator cum testamento annexo, as might be inferred from the reasoning employed in some of the oases referred to, but the test lies
Powers are given by Mrs. Crenshaw’s will beyond those which the law attaches to the office of an executor. The selection of the mode of division, the selection of property to go to each beneficiary in case of a division in kind, determining the mode and terms of sale if a sale was to be resorted to, and likewise the management of Frank C. Fox’s share were each contemplated acts involving a discretion which the law independent of the will does not give, and which must have been reposed in confidence personal to the executor named. Mitchell v. Spence, 62 Ala. 450.
So much of the trust as involves the sale, investment and disposition of Fox’s interest after its segregation from the general mass of property may be deemed collateral to the executorship, but that fact does not relieve the condition, resulting from other powers which relate to division and distribution of interests which is the main object of this petition. They are powers which the probate court cannot withdraw from the executor by compelling a settlement and distribution regardless of their existence and the exercise of which the court of chancery alone lias jurisdiction to control.
The order appealed from will be affirmed.