83 W. Va. 652 | W. Va. | 1919
The decree from which this appeal is taken adjudicates for the guidance of the trustee in the administration of the trust fund created by the donor, his mother, for the benefit of her grandchildren, three of whom are his own children, the question whether there is included among the beneficiaries a child bom to him and his wife within slightly less than the gestation period of time after the death of his mother, the donor, and whether certain other provisions of the instrument are void by the rule against perpetuities. The instrument creating the trust follows: “For value received, this 18th day of Septmber, 1917, I, S. B. Prichard, hereby transfer, assign and set over unto my son, A. M. Prichard, as trustee, fifty-five thousand ($55,000.00) dollars, United States 2% bonds due 1930, which I have loaned unto the Fifth-Third National
Though not, and apparently not intended to be, a formal will, the instrument, it appears, is nevertheless a testamentary adjustment of the whole or a part of the personal property of the donor. It purports an immediate devolution of the title and vests it in trust for grandchildren, of whom four then were and now are living, and another born July 26, 1918, since the donor’s death, which occurred October 30, 1917, and also now living. The trust so created is an active and continuing trust, and, if lawful, cannot terminate within the time fixed for its continuation, either by the joint and voluntary act of the beneficiaries or by the coercion of a court of equity. Carney v. Kain, 40 W. Va. 758; Olsen v. Youngerman, 136 Ia. 404. Though, as we have said, it is not strictly a will, it has the elementary characteristics of a bequest of personal property, and doubtless the donor had in mind the purpose to part with the title she held in anticipation of her early demise.
The particular language involved in the first question is:
The determination of the question, who are members of the class entitled to share in the distribution of the income, Is more important at this time. A grandchild was born after the death of the creator of the trust, and others still may be born, and if the term ‘‘surviving grandchildren” is limited to those in being at the creation of the trust, or at the death of the donor, they null be excluded from participation in the distribution. In Schaeffer v. Schaeffer, 54 W. Va. 681, the question was mooted, but not decided, whether survivorship in a will related to the death of the testator, or to some other point of time. But Dent v. Pickens, 61 W. Va. 488, pt. 4, syl., states the rule thus: ‘‘Words of survivorship contained in a will will be construed according to their usual and common acceptation, unless a different meaning plainly appears to have been intended thereby; and will be referred to the event plainly intended to accomplish the purposes of the
In accordance with that rule the intent of the testator is to govern in construing the meaning of words of survivor-ship in a will; and it is highly proper that such should be the rule of construction, for the purpose of the court in construing a 'will is to give effect to the wishes,of the testator with respect to the disposition of his property after death, subject only to restrictions imposed by established rules of law. Though, as we have said, the instrument here involved is a trust instead of a will, the same rule of construction applies, for the intent of the creator of the trust clearly was to make such disposition of part at least of her estate as is usually made by will.
When the term “surviving grandchildren” is read in connection with the second part of the instrument, that providing for the distribution of the “principal of said bonds equally among such of my grandchildren as shall be then alive,”’ it clearly appears that, she did hot limit the distribution of the income to those only who were living at the date of the instrument or at her death. The principal is to be divided among those of her grandchildren who shall be alive on January 1, 1950, apparently without regard to the date of their birth, provided it occurred prior to 1950. Is it not' fair to assume that she intended the distribution of the income from the bonds to be as broad in scope as the division of the principal? Tier own intention as deduced from a reasonable and fair interpretation of the entire instrument leads irresistably to this conclusion.
Further, where under the provisions of a will or trust instrument a gift to a class is postponed to a particular time, or pending the termination of a preceding estate, generally those members of the class take, and those alone, who are in being at the arrival of the time for distribution, unless the particular language used confines the gift to those in existence at the date of the instrument or at the death of the testator or donor. 40 Cyc. 1477; Schouler on Wills, Executors & Administrators (5th Ed.) § 530; Dole v. Keyes, 143
The second question raised on this appeal, namely, the-determination of the method for distribution of the principal of the trust property on January 1, 1950, presents a¿ matter of construction which we must decline to consider at, this time. There must be something more in a suit than a demand for a mere construction of an instrument. Many contingencies may occur before January 1, 1950, which will render unnecessary, indeed futile, anything we might say at this time. There is no actual litigation in respect of the matter now sought to be determined upon this phase of the subject. “Jurisdiction in equity to construe wills arises only in cases where there is necessity for such construction in relation to actual litigation as to matters which are proper-subjects of equity jurisdiction, such as relief on behalf of an executor, trustee, cestui que trust, or legatee.” Buskirk v. Ragland, 65 W. Va. 749; Martin v. Martin, 52 W. Va. 381. It is true that a trustee or other fiduciary is sometimes permitted to come into a court of equity for a construction of' an instrument under which he is acting, McDonald v. Jarvis, 64 W. Va. 62; but this is only for the purpose of guiding him: in the administration thereof when the occasion confronta him. The decision which we have announced on the question of the distribution of the income from the trust property is sufficient to guide the trustee as to his duties with respect
For these reasons assigned, our order will affirm the decree to the extent that it admits the grandchild born after the creation of the trust to receive a share of the income from the trust estate, and -reverse the decree to the extent it attempts to adjudicate other provisions of the trust to be void because violative of the rule against perpetuities, because, and only because, such adjudication is premature as not now being within the power of the court to determine, and probably may not be necessary until the arrival of the date fixed by the donor for the final distribution of the trust property; the costs of the litigation to be taxed as part of the expenses of the administration.
Affirmed in part. Reversed in part.