87 Iowa 610 | Iowa | 1893
— The facts disclosed by this record are "that the plaintiff recovered a judgment against the defendants H. L. Briggs and Blanche A. Briggs for nearly two thousand dollars. Execution issued thereon •and the defendant L. 0. Bliss was garnished; as a supposed debtor of Blanche A. Briggs.' The garnishee answered before the commissioner that he was not indebted to the defendant, but disclosed that as one of the trustees appointed by the will of William Wilde,
“■Fourth. To my daughter, Ada Blanche Wilde, I give, devise, and bequeath the undivided one-fourth of the north thirty feet of lot 77, in the city of Dubuque, Iowa; also the sum of thirteen thousand, three hundred dollars, in bills receivable and accounts, subject to the provisions of paragraph 7 of this will.” Paragraph 7 is as follows:
“Seventh. I hereby name and appoint my brother Bichard Wilde, my wife, Mary B. Wilde, and my friend, L. 0. Bliss, trustees, without bond, to receive, manage, and control the property and funds hereby bequeathed and devised to my said daughter Ada Blanche Wilde, hereby giving them full power to take posession of said property, both real and personal; to collect -the rents from said real estate; to invest the moneys and credits in good, safe, interest-bearing securities; and in every way to care for and preserve the fund set apart to my said daughter in such manner I as to them shall seem wise and prudent, applying the \ income and increase thereof to her support, comfort and education, so far as shall be required for such purposes. The trust hereby created shall be held and construed as a limitation upon the title and interest vested in my said daughter by the fourth paragraph of this , will, and the same shall continue until, in the judgment ■ of said trustees, she shall have become fully competent . and worthy to be intrusted with the sole care and power-of control of said property and funds, or until she shall be married to some competent and worthy man. In*615 either case, when they are satisfied that said devise and/ bequest will be safely and prudently cared for and pre-> served, they may surrender all trust funds and prop-,* erty to my said daughter, and the title shall then vestí, absolutely in her.”
A copy of the will was attached to the answer. The plaintiff moved for judgment against the garnishee on his answer. The court overruled the motion, found that the garnishee was not indebted to either of the defendants, and discharged him-, to which the plaintiff excepted.
The fourth provision expressly says that the gift and devise therein made are subject to the provisions of paragraph 7. That paragraph creates a trust, names the trustees, vests in them absolute authority to take possession of all the property, collect the rents,
It is true that, in terms, the property in the case -at bar is not bequeathed or devised to the trustees, nor need it be in order for them to take title. Where trustees are named in a will, the law looks to see what powers are conferred upon them, what duties are required of them, and presumes that it was the testator’s ■.intention to give them such an estate as will enable them to execute the powers given, and perform the duties required. Webster v. Cooper, 14 How. 499. And it has been held “that, though no trust is declared in express terms, nor even mentioned, still the intention of the donor to create the trust, and the existence of the trust itself, may be necessarily inferred from the powers and authority given to the grantee; and in case of wills, even where no estate is directly devised to the •executors, but the whole estate is apparently given to the beneficiaries, the trust may be necessarily inferred from the powers and authority conferred upon the ■executors, and thus, from a construction of the entire will, the intention may be shown that the executors are •to take the legal title as trustees of an express active trust.” 2 Pom. Eq. Jur., section 1011; Tobias v. Ketchum, 32 N. Y. 327. A well known exception to the rule prohibiting restraints upon the alienation of property, legal or equitable, is where a trust is “so created that no interest vests in the cestui q%t,e trust-, consequently, such interest can not be alienated; as, where property-is given to trustees to be applied, in their discretion, to the use of a third person, no interest goes •to the third person until the trustees have exercised