78 Ind. App. 257 | Ind. Ct. App. | 1922
— Action by appellant to terminate a trust, to quiet title, to recover possession of real estate and to account for the trust funds in the hands of the trustee.
There were four paragraphs of complaint, the first being a paragraph in the usual form to quiet title; the second averring that appellee, Austin F. Denny, has been in possession of the real estate described in the first paragraph for twelve years under an alleged trust set up in the codicil of the will of appellant’s mother, further averring that appellant is forty-five years of age, a married man, that his wife is fifty-three years of age, and that he has a son nineteen years of age; that he is mentally and physically able to manage his own property and conserve the same, that he is a sober, industrious hardworking man, has no bad habits and is under no legal disability. He prays therein that the trust be declared null and void and that the trustee be directed to make conveyance of the trust estate to him. The third and fourth paragraphs state the same general facts as the second with further averments to the effect that there was a cash balance due him in the settlement of his mother’s estate of $183, which has been under the control and possession of the trustee, that such trustee has collected rent on the real estate involved for 140
There is a prayer for an accounting and that the trustee be required to make a deed to appellant. The will and codicil are made exhibits to the complaint.
A demurrer was sustained to the second paragraph of complaint. We do not need, however, to consider it for there are sufficient allegations in the third paragraph of complaint, and in the fourth after certain parts thereof are stricken out on motion as a basis for the findings of the court which, as we view the case, must control this opinion. These findings are, in substance, as follows:
Appellant is'now forty-six years old, is married, is a householder, and a son of Martha A. Thompson who died testate on September 14, 1908, at the age of eighty-two years, leaving as her sole heirs at law, appellant, her son, her daughters, Kate A. Thompson, and Alice M. Stackhouse, and her grandchildren Charles Edwin Atkinson and Alice Atkinson Yates. That the will of the decedent, after certain specific legacies, makes appellant one of three residuary legatees and devisees. Her codicil to said will revokes the provisions of the will as to appellant, and in lieu thereof devises and bequeaths said interest to appellee Austin F. Denny, as trustee, hereinafter called appellee, and to his successor and substitute, if any, wholly in trust, for the use and enjoyment of appellant,' his children and descendants, with provision that at any time in the discretion of such trustee the principal estate in said trust, in part or in
Upon the settlement of the estate November 22, 1908, there was due the trustee, for the use of appellant on distribution $56.40. Upon the death of said Martha A. Thompson, appellee as trustee, took possession of the real estate devised by her will to him, in trust for appellant consisting of certain lots in Indianapolis, with a five room and a three room dwelling house thereon, and has held possession of the same, continuously up to the present time. Neither appellee nor his wife, in their individual character, ever, at any time, claimed or asserted any right, interest or title in said real estate.
Appellant has requested and demanded the right to move into and occupy one of the houses above referred to, but that said trustee has refused to permit him and his family to occupy either of said houses. Appellant,
.On these findings a conclusion of law was stated against appellant that he should take nothing and that he should pay the costs, upon which judgment was rendered.
The assigned error on the court’s conclusion is the one which we shall consider.'
At the time of the execution of the will of appellant’s mother it is manifest that appellant was given the same consideration in the division of the estate, as his two sisters, for the residue of the estate after certain specific legacies, was to be divided equally among appellant and his sisters, each receiving one-third thereof. By the terms of the codicil thereafter executed there was no reduction in the quantity or proportion of the estate appellant was to receive by virtue of the codicil, but, we assume because of some infirmity or dissipation of appellant, his interest in the estate was placed in the hands of appellee wholly in trust for the use and enjoyment of the appellant, his children or descendants, with a provision for the ultimate conveyance of the same to ■appellant, providing that the same be subject to the power and authority given to the trustee to convey the entire estate to appellant whenever the trustee should be satisfied that the estate would be prudently and wisely conserved or expended by appellant, and that the same should thereupon absolutely vest in him, and his heirs and assigns in fee simple, and divest the trust powers and duties of the trustee.
Ordinarily it is true that where a trustee is vested with discretion he will not be disturbed in the reasonable exercise thereof. But if it is for the benefit of the estate and of the cestui que trust to control such exercise of discretion, and when under the circumstances of the case the discretion is being unreasonably exercised, the court will not hesitate to give directions. Whitelock v. Dorsey (1913), 121 Md. 497, 88 Atl. 241. For authorities sustaining the general principle above announced see: Godfrey v. Hutchins (1907), 28 R. I. 517, 68 Atl. 317; Angell v. Angell (1908), 28 R. I. 592, 68 Atl. 583, 125 Am. St. 721; Whitelock v. Dorsey, supra; Stein v. Safe Deposit & Trust Co. (1915), 127 Md. 206, 96 Atl. 349; Eaton v. Eaton (1921), — N. H. — , 112 Atl. 383; Sanderson v. White (1836), 18 Pick. (35 Mass.) 328, 29 Am. Dec. 591; Jones v. Jones (1894), 8 Misc. Rep. 660, 30 N. Y. Supp. 177; People v. Norton (1853), 9 N. Y. 176, Manning v. Sheehan, supra; Keating v. Keating (1918), 182 Iowa 1056, 165 N. W. 74; In re Norton (1916), 97 Misc. Rep. 289, 161 N. Y. Supp. 710; Albright v. Albright (1884), 91 N. C. 220; McFerran v. Fidelity Trust Co. (1910), 140 Ky. 536, 131 S. W. 393.
It is apparent that the trial court did not have in mind the foregoing principle as to its right to control the discretion of a trustee and that such discretion cannot be exercised in an arbitrary and unreasonable way, or that it did not apply such principle to the facts and circumstances in this case, for holding as it did that appellant was at the time laboring under no mental or physical disability which would prevent him from prudently and wisely managing his estate, and
The court has expressly found that the trustee has not been guilty of misuse or mismanagement of the trust estate so far as the collection of rents, or disbursements of the same or the upkeep of the property is concerned. We are unable to account then for this discrepancy in any other way than that for a considerable portion of the time the trustee or the “Denny Agency” has failed to rent the properties or has not - rented them for the full rental value. Assuming that such accounts for the sum otherwise unaccounted for, will anyone say that under such circumstances good
. The judgment is reversed, with instructions to the trial court to restate its conclusion to the effect that appellee should render an account, close the trust, and surrender to appellant his estate.