156 P. 1128 | Wyo. | 1916
In this case the facts upon which the decision must be based are not in dispute and are as follows: September 12, 1899, Clarance W. Hicks died, leaving surviving her Jane H. Swan, her mother;. Martha C. Andrews, her sister, and Fannie J. Converse, her daughter. October 28, 1899, the last will and testament of said Clarance W. Hicks, deceased, was admitted to probate in the District Court of Laramie County, Wyoming. The provisions of said will in so far as they are involved, or have any bearing- upon the questions to be here determined are as follows:
*170 “Fourth. I give, devise and bequeath unto my Trustee, hereinafter named/ and to his successor and successors in ■trust, according to the nature thereof, all the rest, residue and remainder of my estate, real and personal, of which I shall die seized and possessed, after the payment of my debts and the expenses of administration, together with the bequests hereinbefore made, in trust for the following purposes:
“1st. To pay unto my beloved mother, Jane H. Swan, for and during the term of her natural life, the sum of Three hundred dollars annually;
“2nd. To pay unto my sister, Martha C. Andrews, for and during the term of her natural life, the sum of Three hundred dollars annually;
“3rd. To pay unto my cousin, Nellie McMurtrie, of Cedar Springs, Michigan, the sum of Five hundred dollars in one payment;
“4th. To pay to my said daughter, Fannie J. Converse, all and singular the net income and earnings of said trust estate herein created, remaining after the payment of the said gift to said Nellie McMurtrie, and the payment of the two annuities to said Jane H. Swan and Martha C. Andrews, and all expenses incident to the said trust, including trustee’s fees; said payments to be made at stated periods, quarterly if possible, and at least annually for and during the term of her natural life. And should my daughter aforesaid survive either or both of the said Jane H. Swan and Martha C. Andrews, then and in that case the amount of such annuity or annuities shall be included in the said payments to my said daughter. «
“5th. If my said daughter, Fannie J. Converse, shall survive the last survivor of the aforesaid Jane H. Swan and Martha C. Andrews, then upon the decease of my daughter aforesaid leaving children her surviving, my said trustee shall convey all the remaining part of my estate hereinbefore conveyed to him, to such Trustee, together with any income of the same remaining in his hands, to the sur*171 viving children of my said dapghter Fannie J. Converse — the children of any deceased children taking collectively and by way of representation the share which their parent would have taken if living in equal parts.
“6th. If my said daughter, Fannie J. Converse, shall not survive them the said Jane H. Swan and Martha C. Andrews, but shall upon her my said daughter’s decease, leaving children, or the children of deceased children her surviving, then the said remainder of the net income and net earnings of said trust estate shall be paid to and for the use and benefit of my said daughter’s children, quarter-yearly, and at least annually; such payments in that case to continue to such children during the life time of them the said Jane H. Swan and Martha C. Andrews, or the survivor of them; then upon the decease of the last survivor of them the said Jane H. Swan and Martha C. Andrews, my Trustee under this clause shall convey all the remaining part of my estate hereinbefore conveyed to him as such trustee, together with any income of the same remaining in his hands, to the surviving children of my said daughter and the children of any deceased child of my said daughter —the children of any deceased child taking collectively and by way of representation the share which their parent would have taken if living — in equal parts.
“7th. Upon the termination of the annuities hereinbefore named, my said Trustee shall convey all the remaining part of my estate hereinbefore conveyed to him, as such Trustee, together with any income of the same remaining in his hands, to such persons, and in such manner as I shall hereafter direct by and in a codicil to be hereafter added and annexed ;• and if I shall die without having any such codicil as aforesaid, and if my said daughter, Fannie J. Converse, shall upon her decease, leave no children, nor any children of any deceased child, her surviving, then upon the termination of the annuities hereinbefore named, my said Trustee shall convey all the remaining part of my estate herein-, before conveyed to him as such Trustee, together with any*172 income of the same remaining in his hands, to such persons as, under the Statutes of the State of Wyoming, governing the distribution of the effects of intestates, would have become entitled to my personal estate at my death if I had died intestate and without leaving any children, or any children of my deceased child, me surviving.
“Fifth. My said Trustee shall have full control, care and management of the property hereinbefore conveyed to him as such Trustee, and said control, care and management, as .well as all other powers herein bestowed upon said Trustee, shall be exercised by him for the good and benefit, and for the preservation of the trust estate hereby created. I authorize and empower my said Trustee, if in his judgment it shall seem advantageous to do so, to sell and convert the property, real and personal, hereinbefore conveyed to him as such Trustee, or any part trereof, at public or private sale, at such times, and upon such terms and in such manner, as to him shall seem meet and best; and he shall have power, upon any such sale, to convey, transfer and assign unto the purchaser or purchasers the property so sold. I authorize, empower and direct my said Trustee to invest and keep invested in the public bonds and securities of the United States of America, and in the public bonds of any State or of any municipality in any State of the United States of America, all and singular the principal of -said trust funds and not the net income and earnings thereof. All of the said bonds and securities shall be taken in the name of my said Trustee, as such Trustee, and shall constitute and remain a part of the trust estate herein created, and shall be held upon the same trusts and be finally disposed of by my said Trustee.as and like the property here-inbefore conveyed to him as such Trustee. I authorize and empower my said Trustee to continue any investment which I may leave at my decease, so long as in his judgment the same shall be expended and of advantage to the said trust estate. I direct that my said Trustee shall be required to render and make under oath, each and every year after my*173 decease, unto the tribunal having jurisdiction over trustees and trust estates of the nature herein created, a full, true and complete statement and account of all property, moneys and effects coming into his hands as such Trustee, and of all moneys paid out by him in that capacity, as well as of his other transactions in the management of said trust estate in his hands. During the continuance of the said trust estate the Trustee thereof shall be permitted to retain out of the estate in his hands as a compensation for his services in the management thereof, such an annual sum as shall be allowed and fixed from time to time by the Court to which he is required to report as aforesaid.
“Sixth. I nominate and appoint my beloved husband Truman B. Hicks to be my Trustee under this will, and in case he shall fail or refuse to accept the said trust, or in case he shall accept said trust and shall thereafter cease by death or otherwise to be such trustee, before the said trust shall have been fully executed, then and in either of such cases, the proper tribunal shall fill the vacancy thus existing, to the end that there shall always be a Trustee to manage the trust estate herein created, after the death, disability or refusal to act of said Trustee, Truman B. Hicks.
“Seventh. In the event of an entire failure of a Trustee under my said appointment, the proper tribunal shall supply and keep supplied a Trustee until all the aforesaid trusts shall have been fully executed;' and the Trustee appointed by the Court shall be subject to the same duties and restrictions, and shall have the same direction and authority and powers which are herewith imposed and conferred upon the said Trustee named under this Will. Upon every such succession of appointment of Trustees as herein provided, the necessary assurances shall be executed for vesting the trust estate and the property belonging thereto in the new trustee thus succeeding to the trust.
“Eighth. I hereby declare that the receipt of the Trustee for the time being under this Will, for the purchase money of any property hereby directed or authorized to be sold, or*174 for any money paid, or for any stock, funds, or securities transferred to him by virtue of this Will, or in execution of any of the trusts or powers contained in this Will, shall effectually discharge the person or persons paying or transferring the same therefrom, and from being bound to see to the application, or being answerable for the loss or misapplication thereof. And I direct that the said Trustee shall not be answerable by virtue of or under the trusts reposed in this Will except for his own actual receipts, acts, neglects and wilful default. * * *”
March 1, 1901, plaintiff in error, The International Trust Company, was appointed trustee under said will, and since that date has continued to act and still is acting as such trustee. June 7, 1902, Fannie J. Converse and Ord Preston were married. In 1903 or' 1904 Jane H. Swan died. May 1, 1904, Mary Ord Preston, daughter of Ord and Fannie J. Converse Preston, was born. September 24, 1907, Eleanor' Converse Preston, daughter of O'rd and Fannie J. Converse Preston, was born. In September, 1911, Fannie J. Converse Preston died. September 25, 1911, Ord Preston was appointed by the Surrogate of the Orphans’ Court of Bergen County, New Jersey, guardian of Mary Ord Preston and Eleanor Converse Preston, minor children of Fannie J. Converse Preston, deceased. January 14, 1905, said trustee invested of the trust funds then in its possession $9,500.00 in £2,000 United States of Mexico 4% bonds of 1954. That investment is the subject of the present controversy, and in the district court the report of the trustee as to that investment was disapproved and the amount thereof surcharged to the trustee. From that decision the trustee brings error.
. Three questions are presented for consideration. 1. Was the investment in Mexican bonds a violation of the trust?. 2. Could Fannie J. Converse Preston in her lifetime, or Ord Preston, as guardian, waive a breach of the trust and ratify an unauthorized investment of the trust funds? 3. Was the approval by the district court of the annual reports of the trustee final and conclusive?
The trustee reported annually to the district court; and it was admitted on the trial that these Mexican bonds were shown in the report covering the period from April 6, 1904, to March 1, 1905, and in each annual report thereafter; and that said reports up to and including that ending February 15, 1913, were approved by.said court in the following language, (except as to period covered) : “Now on this day comes The International Trust Company, Trustee, and presents to the Court the report of its acts and doings in refer
It is claimed that even if the investment in those bonds was unauthorized by the -will, the approval of Mrs. Preston, and Ord Preston, as guardian, ratified the investment and relieved the trustee from liability. It is clear that consent to, or approval by Mrs. Preston of an unauthorized investment could in no manner affect the rights of those entitled to the remainder of the estate. She was but a life tenant without power of appointment, or other disposition of the remainder. (Contee v. Dawson, 2 Bland’s Chancery, 264; Zimmerman et al. v. Farley et al., 70 Md. 561, 17 Atl. 560; Adair et al. v. Brimmer et al., 74 N. Y. 539; Ferguson v. Epes, 77 Va. 499.)
We come then to the approval by Ord Preston, guardian, of the report for the year ending February 15, 1912, that being- the only report in -which the investments reported were approved by him. We have searched the record in vain for evidence that Ord P'reston at the time he signed that certificate knew of the limitations contained in the will with respect to investments by the trustee, or that he was aware of the fact that the investment in those bonds was in viola
It is further contended that the approval by the court of the annual reports of the trustee is final and res adjudicata. A number of cases from California are cited as supporting that view; but they are not applicable here for the reason that the California statute is different from ours. This question was before this court in Nagle v. Robbins, 9 Wyo. 211, 62 Pac. 154, 62 Pac. 796, where a guardian had made investments without an order of court, but which were sub
In the reply brief filed, and in oral argument, counsel bring forward the contention that the, proper parties were not before the court to authorize the order made; that there was no appearance for the minors other than by Ord Preston as guardian, and that the surviving annuitant, Mrs. Andrews, is not complaining. But this is not a civil action, but
At the time these Mexican bonds were purchased the trustee knew that it was a violation of the provisions of the will. About a year thereafter Mrs. Preston called the attention of the trustee to that fact; but it continued to hold them and has continued to do so to the present timé. There is nothing in the record to indicate that at any time when the annual reports were presented to the court was its attention called to the terms of the will, until the filing of the protest by Ord Preston, guardian. No notice of the filing of 'these reports, or of the time and place when and where they would be heard and considered by the court was given to the parties interested, and they were not bound by the court’s approval of the annual reports under such conditions. The investment in the Mexican bonds was a breach of trust for which the trustee must be held liable; and the district court did not err in surcharging the amount of trust funds so invested to the trustee.
The judgment of the district court is affirmed.
Affirmed.