| R.I. | Oct 6, 1868
We think it was the intention of the late John Taylor, deducible from the clause of his will, to which our attention has been called, that the legal estate of the one-fifth part of the real estate, which was devised to this defendant, in trust for the plaintiff and his heirs, should vest in the defendant, without being executed by the Statute of Uses. He devises *127 his real estate, after the decease of his wife, in equal parts to his five children. The devises in favor of the two children first mentioned, and to the son last named in the clause, are made directly to them and their heirs; the devises in favor of the two other children, one of whom is the plaintiff, are made to the defendant for the use and benefit of them and their heirs. We cannot suppose the testator would have so varied his language, if he had not intended a difference of effect in consequence of the variation, to wit: that the three children to whom the devises are directly made, should take legal estates, and the two other children equitable estates, the legal estates remaining unexecuted in the defendant. And this view is confirmed by the power which is conferred upon the defendant by the same clause, for said power is strictly consistent only with an intention that the legal title of the estates to which it relates should vest in the defendant.
Such being the intention of the testator, the legal estate will not be taken out of the defendant by the execution of the uses contrary to that intention. 1 Greenlf. Cr. 384 n. 1.;Gregory v. Henderson, 4 Taunt. 772; Mott v. Buxton, 7 Ves. 201.
But though the defendant has, in our opinion, the legal estate, the plaintiff has in himself the entire equitable or beneficial estate, and this entitles him to a conveyance of the legal estate, unless there is some sufficient reason for its retention by the trustee. The ground on which the defendant claims a right to retain is, that the power which is conferred upon him to appoint a successor, by will or otherwise, for the support of the trust, or to convey to the plaintiff, or his heirs, the estate when he may think proper, invests him with a discretion which the court will not undertake to control. We think, however, that the defendant is not, by virtue of any discretion which he has under this power, exempt from the control of the court, if he unreasonably or improperly refuses to convey the legal estate to the cestui que trust, when requested so to do.
The defendant is not charged with any active trust or duty in the management or disposition of the estate which calls for a retention of the legal title; the plaintiff is sui juris, and has, *128 so far as we can see, complete power to deal with the equitable estate as he may think proper. We can, therefore, conceive of no good or satisfactory reason why he should not, if he desires it, have the legal estate conveyed to him, the defendant's liens thereon, if any he have, being duly discharged. Under such circumstances, we think it unreasonable for the defendant to refuse to convey, and that we ought, the charges of the defendant upon the estate being first properly adjusted and settled, to require him to convey the legal title thereof to the plaintiff.
Decree accordingly.