12 F. Cas. 122 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1879
The deed of June 24. 1872, invested the defendant with the legal ownership of the property conveyed by it, during the life of Mrs. Hidell, the grantor, in trust that the defendant would receive and pay over to her the income of the trust fund, subject to her right, however, “at any time after the first day of July, 1875, by an instrument in writing, executed in the presence of two witnesses, to modify, change and alter said trusts, and to declare new and other trusts upon which said estate shall then be held, or, at her pleasure, entirely revoke the same,” etc. The writing of October 27, 1876, was executed as required by the trust, deed, and purports to “renew” the trusts thereby created for five years from that date. For this specific purpose it was plainly ineffective, because, by force of the deed creating it, the trust was of indefinite duration, and needed no renewal to continue it But it is operative as a limitation of the duration of the trust to five years, and so came legitimately within the scope of the reserved power. It was an exercise of this power with that specific effect, and as that was, therefore, its apparent purpose, such must be taken to have been its . real intent. Can Mrs. Hidell now revoke this trust, and demand a reconveyance of the trust estate? To this end she has invoked the intervention of this, court. It has been already said, that the paper of October 27, 1876, is a proper exercise of the power reserved in the original deed. It is a modification of the trust, inasmuch as it changes the indefinite period ot its continuance to five years. But it is more than this. It is an exercise of the power of revocation. By the clearest implication it establishes the trust for five years, limits its continuance to that period, and reserves no power to change or terminate it sooner. I think there can be no doubt that, by force of that paper, the trust will terminate at the expiration of that time. Hence it is a revocation of the trust to take effect at the end of five years, with a declaration that it shall continue during that period. And the designation of a day certain in the future, for the-termination of the trust, is just as appropriate an exercise of the reserved power, as would be a revocation to become immediately operative,' because an unlimited right to revoke necessarily includes a right to fix the-time at which the act of revocation shall take effect. There is high authority for the-argument that a single exercise of a power of appointment or revocation exhausts the power. But where a power of revocation is once fully exercised, what is there left in the possessor of it, upon which a subsequent and entirely inconsistent exercise of it can-rest?Such is the virtual effect of Mrs. Hidell’s execution, of the writing of October 27, 1876, establishing the trust for five years from that date, and terminating it on the 27th of October, 1881, whereby it is revoked as of the-latter date, without leaving any residue of the original power in her of intermediate revocation. The bill must, therefore, be dismissed with costs.
