Hunt v. Hunt

| Mich. | Jun 26, 1900

Grant, J.

(after stating the facts). The intention of the testatrix is entirely clear. She devised the real estate to her executors as trustees, with authority to sell, and to invest the proceeds in bond and mortgage, or such other ways as the said trustees should deem safe and advisable, the receipts therefrom to be paid over to her two sons during their lives. She empowered each of them to devise the property, whether it should be realty or personalty, but, should either fail to make a will, then it was to go to the heirs of each one. This intention of the testatrix must be carried out, unless to do so would be in direct violation of law. The trust was an active one, and the trustees and their cestuis que trustent — the two sons of Mrs. Hunt- — could not, by any agreement or action of theirs, change the character of the estate or the fund received therefrom. Cuthbert v. Chauvet, 136 N.Y. 326" court="NY" date_filed="1893-01-17" href="https://app.midpage.ai/document/cuthbert-v--chauvet-3630354?utm_source=webapp" opinion_id="3630354">136 N. Y. 326 (32 N. E. 1088, 18 L. R. A. 745); Rife v. Geyer, 59 Pa. St. 393 (98 Am. Dec. 351). It follows that, even if the trustees permitted Charles and Joseph to occupy, enjoy, and manage the real estate, and receive all the rents and profits thereof, this would not change the active trust into a passive one, and deprive the other .beneficiaries of the interest in the property to which, under certain contingencies, they would become entitled. It was entirely proper for the trustees to permit them the use and benefit of it.

The defendant Charles contends that the title in fee has become vested in him under section 8867, 3 Comp. Laws 1897, which reads as follows:

“When a general and beneficial power to devise the inheritance shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition, within the meaning and subject to the provisions of the three last preceding sections.”

The three preceding sections have no application to this case, for the reason that no estate for life or years is vested in the defendant Charles.

The rule in Shelley's Case is abolished in this State by section 8810, 3 Comp. Laws 1897, which reads:

“When a remainder shall be limited to the heirs or heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs or heirs of the body of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them.”

Fraser v. Chene, 2 Mich. 81" court="Mich." date_filed="1851-01-15" href="https://app.midpage.ai/document/fraser-v-chene-6631049?utm_source=webapp" opinion_id="6631049">2 Mich. 81.

Under that section the words “heirs,” “devisees,” and “legatees” in this will are not words of limitation, under the rule in Shelley's Case, but are words of purchase.

The mistake of Charles lies in his assumption that he is a life tenant, with the devise over to his heirs. There is no life estate created by the will. The absolute title is vested in the trustees, and they alone have the right of possession. Upon them alone is the legal duty to pay the taxes, and to protect and care for the property.. The interests of Charles and Joseph as cestuis que trustent have none of the attributes of a life tenancy. The trustees alone are charged with the control of the property, or of the fund which they are authorized to realize from its sale. They cannot surrender the trust to their cestuis que trustent. They can only surrender it to their successors duly appointed by the chancery court. The only right Charles and Joseph can enforce against the trustees is the payment to them of the income and the faithful performance of the trust. This was all the testatrix intended they should have. There is no legal objection to such a trust. Upon Charles and Joseph she conferred the right to direct a testamentary disposition of the property upon the termination of the trust by their deaths. If they chose not to make such disposition, then the trustees under the will were directed to pay the fund or to deed the land over to the heirs o.f each. If there were no trust, and the devise were to Charles and Joseph for life, with the remainder over to their heirs, then undoubtedly they would take an allodial estate, under Fraser v. Chene, supra.

A case nearly parallel to this in its facts is Sise v. Willard, 164 Mass. 48" court="Mass." date_filed="1895-06-21" href="https://app.midpage.ai/document/sise-v-willard-6425305?utm_source=webapp" opinion_id="6425305">164 Mass. 48 (41 N. E. 116). In that case complainant had a life interest in the fund, coupled with the power of testamentary disposition; and the court held that she was not entitled to an absolute transfer of the fund to her. See, also, Bowers v. Porter, 4 Pick. 198; Tayloe v. Gould, 10 Barb. 388" court="N.Y. Sup. Ct." date_filed="1851-02-15" href="https://app.midpage.ai/document/tayloe-v-gould-5458006?utm_source=webapp" opinion_id="5458006">10 Barb. 388; Germond v. Jones, 2 Hill, 569.

We have examined the authorities cited by defendant Charles, and find that they are all cases where the courts held that all the beneficial interests were befoi’e the court, and that they had the right, by consent of the trustees, to terminate the trust, and that, under such circumstances, the court would direct a transfer of the fund to the parties entitled to it. The rule is well stated in Sears v. Choate, 146 Mass. 395 (15 N. E. 786, 4 Am. St. Rep. 320):

‘ ‘ There is no doubt of the power and duty of the court to decree the termination of a trust, where all its objects and purposes have been accomplished, where the interests under it have all vested, and where all parties beneficially interested desire its termination. Where property is given to certain persons for their benefit, and in such a manner that no other person has or can have any interest in it, they are, in effect, the absolute owners of it, and it is reasonable and just that they should have the control and disposal of it, unless some good cause appears to the contrary.”

See, also, 2 Beach, Trusts, § 764.

It is, of course, impossible to now determine who will be the heirs of Charles at his death. In the event of his dying without children, his brothers and sisters, and the children of any deceased brother or sister, will be the beneficiaries under the will. • They are therefore entitled to take proceedings to protect the trust fund, to compel the appointment of trustees, and to have them properly execute the trust.

The fact that Charles has made a will is of no significance. If his will were irrevocable, he would have no interest in this suit other than the enforcement of the trust. The only interest he would then have would be the income from the estate. But he may revoke his will at any time, and die intestate. His will might also be held void. In these events, the other beneficiaries would be entitled to the property.

Decree reversed, and petition dismissed, but without costs. •

The other Justices concurred.