70 Mo. App. 448 | Mo. Ct. App. | 1897
Lead Opinion
Plaintiff was one of twelve children and devisees of Jeremiah B. Smith, deceased. By the residuary clause of her father’s will each of his children was entitled to one twelfth of his estate less certain discounts. With reference to the portion of plaintiff, the will uses the following language:
After the death of the testator, the trustee named in the above clause of the will resigned, and S. S. Bassett was duly appointed in his stead. Plaintiff procured an assignment executed by seven of the children of the testator of all their interest in the portion of the estate devised to her, and thereupon moved the court to direct the trustee to pay over a proportion of the funds held by him as such equal to the interest of said parties, or seven elevenths of the whole. Upon a hearing the court sustained plaintiff’s proceeding, and decreed accordingly that the trustee pay over to her seven elevenths of $2,617.80, the amount then in his hands, and the same proportion of what might thereafter come into his hands as trustee from the administration of the testator’s estate. The heirs of the estate were made defendants, and appealed from said judgment.
The trust under review makes it the duty of the trustee to control, manage and invest the estate devised to him, and imposes other duties on his part to continue during the life of the cestui que trust. It was evidently created for the purpose of preventing the corpus of the estate from being subject to the dangers which might beset it in the hands of the wife and to remove it from the reach of her husband, as well as to preserve it for the heirs at law of the testator. To permit its cessation prior to the period fixed for its termination, would thwart the intent of the donor. Equity will not lend its aid to that object. The signers to the assignment read in evidence do not constitute all the parties interested in the trust estate. The rule on this subject is, that “a trust once created and accepted without reservation of power, can only be revoked by the full consent of all parties in interest. If any of the parties are not in being, it can not be revoked at all.” 1 Perry on Trusts [4 Ed.], section 104; Ewing v. Shannahan, 113 Mo. loc. cit. 196. Under this rule there can not be a partial extinction of an active trust by the act of part, only, of the parties interested. Conceding that under the testator’s will a present fixed right of enjoyment, upon the expiration of the trust estate, was vested in his heirs at law at the time of his death, still, as all of them did not consent to the termination of the trust, it was not abrogated. These conclusions demonstrate that plaintiff is not entitled to recover in this action. The judgment will therefore be reversed.
Dissenting Opinion
(dissenting). — I am satisfied that the other children of the testator took a vested, and not a contingent, interest in remainder in that portion of the estate bequeathed to the trustee. In respect to the rules which regulate the vesting of personal legacies, the payment of which is postponed to a period subsequent to the decease of the testator, Mr. Jarman says, that “a leading distinction is, that if futurity is annexed to the substance of the gift, the vesting is suspended, but if it appears to relate to the time of payment only, the legacy vests instanter.” Jarman on Wills, p. 809. Stating the rule differently, if there is manifested a present intention to give and the time of payment or distribution relates merely to the time of passing the possession of the property, the legatee takes -a vested interest, but if the payment or distribution is deferred, “not merely until a time which will certainly arrive, but until an event which may or may not happen,” the legacy will be .contingent. Bowman’s Appeal, 34 Pa. St. 19; Willitt’s Adm’r v. Rutter, 84 Ky. 317; Lynton v. Laycock, 33 Ohio St. 137; Kinsey v. Lardner, 15 S. & R. 192; Moore v. Smith, 9 Watts, 403; Taylor v. Grange, L. R. 15 Ch. Div. 165. In the case at bar a present intention to give is obvious and the identity of the donees or legatees is fixed, but a life estate is carved out of the fund, and the right of the legatees to demand the fund is postponed until the termination of the particular estate. If the will had provided that the fund should be distributed to such of the testator’s children as might be living at the death of the life tenant, then the interest of all the children would have been contingent. Thus, in the language of Mr. Jarman, “futurity would have been annexed to the substance of the gift,” for until the life estate terminated it could not be determined who the donees were. Jones v.
For the foregoing reasons I have been unable to agree to the disposition which my associates have made of this case.