28 Me. 41 | Me. | 1848
The opinion of the Court was drawn up by
— The defendant was appointed trustee, by the judge of probate, acting in conformity to the will of Reuben Morton.
The plaintiff prays the Court, to direct the trustee, to convey the property, held in trust, to him, the cestui que trust.
There is no doubt, that a court of equity has power, to compel the execution of a trust, whenever equity may require it;
Where, by the'will, a discretion and option is given, to be exercised according to the judgment of the trustee, and such is the plain intention of the testator, it is very doubtful, whether the Court can substitute its own judgment, for that of the trustee. It is not within the power of the Court, to say, that the will of the testator is unwise, and make a new one. The bounty of the testator is to be enjoyed in the manner, which he has prescribed.
The trustee, in the present case, is authorized and directed to convey the property to the plaintiff, whenever he “shall become perfectly satisfied, that it will be for the best interest and advantage and happiness of said David,” &c.
The trustee is not directed to act, in conformity to the judgment of others, however sound and enlightened, but according to his own. If his own comes in conflict with that of others, he is not bound to yield it up, upon the happening of such a diversity.
Although the devise, in the present case, is clearly a trust, with power to determine when the trust shall cease, and does not involve the inquiry, as to the difference between a power and a trust, yet some light may be obtained by the aid of decisions, on that subject. In Story’s Eq. Juris. § 1070, it is said, whenever a clear discretion and choice to act, or not to act, is given, courts of equity will not create a trust, from words of recommendation. In the nature of things there is a wide distinction between a power and trust. In the former, the party may, or may not, act in his discretion. In the latter, the trust will be executed, notwithstanding his omission to act.