261 F. 407 | D. Colo. | 1919
This is a suit to quiet title to Lots 13, 14, 15, and 16, in Block 76, East Division of Denver. The plaintiff claims full and complete title to all of the dots. The defendant claims to be the owner of an undivided half interest in them, admits that the plaintiff is in possession, and by cross-complaint asks that title to an undivided half interest be quieted in her, and for an accounting for rents and profits received by the plaintiff. The plaintiff moves to strike the answer and cross-complaint.
Both in arguments and briefs counsel are agreed that a disposition of the motion is dependent upon the construction to be given the last will of William B. Daniels and the powers which it gives the trustee.
The second article names Mitchell Benedict as trustee of the estate. It runs thus:
“And to the said Mitchell Benedict as trustee I hereby give, devise and bequeath all the real estate of which I die possessed, and the rents, issues and profits■ thereof, and so much of my personal estate as shall by this my will*409 be directed, from lime to time, to be paid over to him, to have and to hold the same in trust for the following purposes to wit: * * * * * * *
“7th. To pay to my said son when he shall have attained the age of thirty years, or make over to him by payment, assignment, conveyance oj otherwise, all the estate then in the hands of my said trustee, whether real, personal or mixed, save and except the real estate known as Lots 13, 14, 15, and 16, Block 76, in the East Division of the City of Denver, Arapalioo County, Colorado.
“8th. To keep, retain and hold the title to the said last-named real estate during the natural life of my son, but from the time of my son’s attaining the age of thirty years, as aforesaid, to give to him the possession thereof and leave to him the entire control and management thereof, and to allow him the rents, issues and profits thereof for his own use and benefit so long as he shall live, without let or hindrance or interference in any manner whatsoever.
“9th. In case of the death of rny said son leaving lawful issue, being a child or children him surviving," then to pay to or make over to such child or children the same monies or property which otherwise would be paid to or made over to my said son as aforesaid.
“lOth. In the event of the death of my son without his leaving him surviving any such child or children, then to pay to or make over as aforesaid to the said Sarah ¡VI. Kenyon, or to her heirs, one-fourth of all the estate then being in the possession and control of my said trustee, the remaining three-fourths thereof to be by my said trustee disposed of in such a manner as may be directed by tlie last will and testament oí my said son, by him made after he shall have attained the age of twenty-five years, but if he die without leaving any such will and leaving no such child or children but leaving a widow, then to pay to and make over to such widow what my said trustee shall consider a full one-third of the said remaining three-fourths of said estate. And another cne-third of said three-fourths my said trustee shall pay or make over as aforesaid to Henry Martyn Hart. ::: * * And the residue of the said estate so remaining I hereby direct shall be paid or made over to those who then are the heirs of my said son, but if my said son shall die leaving no such child or children, and no such will and no widow, then the share which is above directed to be paid to such widow shall also go to the said Hart. " * I hereby give and grant, unto my said trustee full power and aurhority to sell, grant, bargain, convey and dispose of all the estate, real, personal or mixed, which may come into his possession and control, in such a manner from lime to time as. to him shall seem meet and proper.”
The second article also made other bequests to be discharged by the trustee, among them:
“To pay to my sister, Mrs. Sarah M. Kenyon, of Iowa City, State of Iowa, ten per cent, of the net income of all the estate in the hands and possession of-my said trustee, from time to time yearly, every year during her natural life,” etc., “to my nephew, William D. Kenyon, * * * $1,000.00: * * * Provided'however, if that sum shall be more than five per cent, of my estate in the possession and control of my trustee at that time, then the amount to be paid him shall be five per cent, of such estate and no more,’’’ to pay over to my said son when he shall arrive at the age of twenty-one years the sum of $5,000.00, and “thereafter to pay him also all the net income of my estate in the possession and control of my said trustee,” etc.
The son died at the age of forty-eight. When he attained the age of thirty years the trustee made over and conveyed to him all of the estate except the four lots. The answer alleges that shortly thereafter the son conveyed the four lots and other real property to plaintiff’s grantor for a recited consideration of $200,000, and in a subsequent deed made in 1910 the son and his wife conveyed to the plain
“and thereafter to enjoy and possess the same, and every part thereof, as devisee and appointee of William Cooke Daniels, under his last will and testament; and the said William Cooke Daniels, one of the parties of the first part, does hereby promise, undertake and agree to and with the party of the second part, in consideration of the premises, that he will by his last will and testament give and devise unto the party of the second párt all the right, title and interest in and to said real property which, under the will of William B. Daniels, deceased, and in and by the terms of said will he, the said William Cooke Daniels, has been given power to give and devise, and will under the power given to him by the will of William B. Daniels, deceased, appoint the said party of the second part to take and hold said real property forever, and for its own use and benefit, and will direct by the terms of his last will that the trustee under the will of William B. Daniels, deceased, or his successor in trust, shall, under the will of William B. Daniels, deceased, convey unto the party of the second part all the right, title and interest in and to said real property remaining after the death of William Cooke Daniels.”
It is alleged that the son died testate by will of date April 21, 1916, but that he did not exercise the power of appointment given to him by his father’s will, and that he died without issue, his wife surviving him.
As to the first proposition it may be said that the entire will, including Üre codicils, must be read and considered as one instrument, its different parts harmonized, if there is not irreconcilable conflict, so that the intent and purpose of the testator, disclosed by the whole will, may be carried out; such intent and purpose, however, must be obvious from the language used by the testator, and if phrases are used to
“And in applying this rule, the intention is to be collected from the whole will, and not from detached parts; and effect must he given to all the words in the will without rejecting or controlling any of them, if it can be done by a reasonable construction not inconsistent with the - manifest intent of the testator. When any technical words are used the meaning of which has been settled by usage, and sanctioned by judicial d< •isions, they are presumed to be used in the sense the law has appropriated to thorn, and must have their technical effect, unless a contrary intention is manifest; but when such intention is plain, it will control the legal operation of words, however technical. * * * There can lie no doubt hut that where there is a lapsed devise, for the want of a devisee answering the description in the will, or where there is an irreconcilable repugnancy or uncertainty in the disposition made by the testator, so that his real intention cannot he ascertained, the estate will descend to the heir-at-law; * * * but a devise is never construed absolutely void for uncertainty, hut from necessity. If there is a possibility to reduce it to certainty, the devise is held good.”
In the forepart the title in fee was given to the trustee for the purposes named, both by the original will and as it remained after the codicils. Also the original will gave the trustee power of disposition of all of the real estate at his discretion, and that remained after the codicils. But that power given elsewhere was undoubtedly cut down by the codicil, so that the trustee could not dispose of the four lots until after the son’s death, otherwise if he had conveyed them before the son reached thirty he could not have let the son in when he reached that age, and if permitted to exercise that power while the son was in the fee would have been of uncertain value, dependent upon the life of the son; but the restriction on the power of alienation by the trustee would pass with the son’s death if the title in the trustee were not expressly limited to that time. So that the question arises, whether the phrase in the eighth section, “To keep, retain and hold the title to the said last-named real estate during the natural life of my son,” shall be held to cut down the fee given in the forepart to the trustee to an estate in the trustee, for the life of the son, or whether it should be construed, when taken with the remainder of that section and the general power of disposition given to the trustee, to be only a withdrawal of that power during the life of the son. The latter impresses me as being the more reasonable purpose, and within the clear meaning of the phrase. I can conceive of no more apt expression for that purpose. It is equivalent to saying that during the life of the son the lots should not be disposed of by the trustee. When we attempt to apply them to the purposes contended for by the plaintiff there is at once doubt. They do not expressly indicate a purpose to cut down, the fee given the trustee in the forepart, and the words themselves are not apt to that end. “To keep, retain and hold” is a command to non-action, for the time specified, by one to whom the fee had been given. Besides, if we take them as a limitation on the trustee’s power of disposal until after the son’s death we bring the eighth section into har
But the plaintiff, to sustain its contention brings in, in aid of the construction which it places on the forepart of the eighth section, the words in the tenth section: “To the said Sarah M. Kenyon, or to her heirs, one-fourth of all the estate then being in the possession and control of my said trusteeand says that these lots which had been turned over to the- son during his life could not be in the possession and control of the trustee at the time of the son’s death. It will be noted' that the, property disposed of in this section is not one-fourth of the real estate then,in the possession and control of the trustee but one-fourth of “all the estate.” The estate consisted of an interest in large personal assets. The testator had in mind and specifically named his stock of merchandise, one of the largest establishments of the kind in Denver. He had provided that that business might be continued' by his executor until the son reached the age of twenty-seven years.' If that business had been carried on for that length of time by the executor, and the son had died shortly after’attaining the age of thirty years, there would have probably been a very large fund arising from its sale in the possession and control of the trustee. The same expression is used in other parts of the will in referring to personal property, money, to be paid over to legatees by the trustee. It undoubtedly covered both kinds of property, but was not used with the restricted meaning now claimed for it, and as additional manifestation of an intent to limit the title in the trustee to the life of the son.
“The extent of the legal interest of a trustee in an estate given to him in trust is measured not by words of inheritance or otherwise, hut by the object and extent of the trust upon which the estate is given. On this principle two rules of construction have been adopted by courts: First, wherever a trust is create!! the legal estate sufficient for the purposes of the trust shall, if possible, be implied in the trustee, whatever may be the limitation in the instrument, whether to him. and his heirs or not. And second, although a legal estate may be limited to a trustee to the fullest extent as to him and his heirs, yet it shall not be carried farther than the complete execution of the trust necessarily requires.”
Circuit Justice Curtis, in Ward v. Amory, Fed. Cas. No. 17,146, said:
“It is a settled rule that trustees take and hold under a will just thaiquantity of interest necessary to enable them to discharge the duties of their trust.”
The rule was announced and applied in Young v. Bradley, 101 U. S. 782, 25 L. Ed. 1044. This principle of law requires that the motion he overruled.
An order will be entered overruling the motion.